2012: The Year of Retaliation or Professionalism and Courage

A distinguished employment lawyer recently told me that he sees 2012 as the Year of Retaliation.  My friend may be right.  EEOC charges are on the rise; surveys indicate that in-house counsel view reprisal actions as a major concern; the new Dodd Franks legislation may spark “bounty” charges followed by lawsuits from employees who say they have been punished for pressing their claims.
But my friend’s prediction doesn’t have to prove true, provided the right steps are taken now.  In fact, I glimpsed an alternative future this week. I spoke with Dr. Jo Shapiro, Division Chief, Otolaryngology, Brigham and Women’s Hospital [BWH], a leading teaching affiliate of Harvard Medical School.  We’ve worked with Dr. Shapiro to develop a program used to train physicians and researchers on professionalism.  It addresses how they interact with one another and raise concerns from treatment issues to staff conduct. What is striking about Dr. Shapiro and BWH’s approach is that it is centered on delivering the best healthcare, patient outcomes, and teamwork even as its messages and lessons will help prevent unlawful retaliation.
This is how lasting cultural and behavioral standards are set. The most effective “anti retaliation” approach is to make “surfacing and listening openly to problems” an element of operational excellence and daily behavior, vital to the company’s core values, best leadership practices and success.  What organization or leader sincerely committed to continuous improvement is going to honestly invite concerns and then punish the messengers for bringing them forward?  The very act of encouraging people to raise questions is itself what goes far to prevent retaliation. The law is included as a piece of the puzzle of “how to succeed” but not the puzzle itself.
Too many compliance efforts place their emphasis on identifying laws which cover the workplace and business, setting up multiple complaint channels to report problems and delivering mandatory legal and policy training to all employees, usually through on-line courses. These measures are important.  However, making them the focus of preventive efforts frequently so divorces handling complaint processes and information from daily operations, behavior and real world situations that the effectiveness of “teaching the law” is minimized.
Returning to an example of the ideal, Dr. Shapiro starts her surgeries by introducing herself and asking those in the room to do the same and to raise any issues or questions they have so that if there are problems they may be addressed all for the good of the patient.  She welcomes their comments.  In her surgical practice and professionalism work, she sets a model for conduct and for speaking up which is carried forward culturally as an ingredient of commitment and excellence.  Her commitment to creating an open culture where problems are always surfaced and listened to is embedded in her actions, practice and teachings, a living demonstration of BWH’s values and culture.
Let’s take a lesson from Dr. Shapiro and BWH and apply it in our workplaces. Preventing retaliation has to be approached from a cultural point of view linked to improving business and professional outcomes first and foremost.  Paradoxically, without making reduction of legal risk the primary focus, the cultural approach will significantly reduce legal risk. To lawyers and compliance professionals, that may seem like putting the carriage before the horse. But this is one instance where that is exactly where the carriage belongs.
There’s another advantage to the cultural approach. You get better performance. At some point, every organization will have issues arise that must be addressed.  Some will be easy, some difficult. We need those issues at the heart of such problems to be revealed quickly so that management can correct them before they lead to disaster. This includes thousands of issues which may not involve legal violations. Still, if not evaluated and, when needed, fixed promptly, they will be addressed by customers or patients who defect to other products or practices, employees who depart for more attractive places to work, or a public which punishes the organization for failing to prevent avoidable catastrophes.  The cultural approach raises all issues – performance and legal. The legal approach only raises the potentially legal issues. Which issues do you want surfaced in your organization?
Dr. Shapiro’s vision is a future in which professionals will see their responsibility as requiring them to act in civil and inclusive ways towards colleagues, team members and others. Second, they’ll bring concerns forward if they arise. In turn, recipients will thank those persons raising concerns, whatever they involve, for having the courage to bring issues forward. As professionals themselves, they’ll value learning about hazards sooner rather than later no matter what they involve.
That’s the future toward which we should be looking. This is a far more powerful, lasting approach to protect organizations and the public, rather than focusing primarily on reducing complaints or lawsuits.

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