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RISKVUE ARCHIVE | INDUSTRY WATCH > EMPLOYMENT PRACTICES LIABILITY (EPL)
Compliance & Culture
Breaking Past The “Culture of Silence”
By Don Phin, Esq.
Most companies don’t learn about a risk management nightmare until it is too late to do anything constructive about it! Like a cancer, the risk festers undetected until it surfaces out of control. Most companies don’t find out about an employment law compliance concern until after an employee has left that company and hired an attorney. Frustrated business owners and risk managers find out that their elaborate compliance systems are rendered useless by the culture of silence that exists in our workplace.
Recent U.S. Supreme Court decisions provide employers a “safe harbor” if they can prove (a) they had a decent compliance system in place and (b) the claimant failed to avail themselves of the reporting or grievance procedure. While these guidelines were set forth in the context of sexual harassment litigation, this newly identified “obligation” to speak up, when it is reasonable to do, adds a measure of responsibility on part of all “victims.”
Just what is this “culture of silence”? Why don’t employees speak up when they have been victim or witness to illegal, unethical or immoral conduct? Why don’t they use the systems specifically designed to ferret out destructive conduct? The culture of silence is born out of ignorance and fear that is deeply rooted in the emotional psyche.
In many cases, an employee will argue, “I didn’t know” I had the opportunity to complain about the matter. The fact is, many of them chose not to know. Employers can eliminate this argument through compliance training and memoralization of the employee’s understanding that mechanisms are in place. This way it is no longer reasonable to argue, “I didn’t know.”
Assuming victims and witnesses know their rights, why do so many of them choose not to say anything when they have the opportunity to do so? For example, in my 16 years of litigating sexual harassment cases, every single company involved had a sexual harassment policy. In almost every case, the woman harassed knew of the policy but did not complain about the harassment until after she was no longer working for the company. In trying these cases, a common set of justifications arise for this silence:
“I was afraid of retaliation.”
I needed the job.”
I was embarrassed to say anything.”
Let’s look at each one of these explanations in turn. Many times employees do not complain about their current conditions because they feel that doing so will result in making their conditions even worse. They fear that complaining to the human resource manager or supervisor may be viewed as opportunism, whining or — even worse — lying. They fear the person being complained about is in a position of greater authority and has the power to make their life miserable, squash a promotion, get them fired, etc. And at times they are right. Retaliation claims are one of the fastest growing categories of claims.
Given today’s ridiculously low unemployment rates, it is hard for anybody to argue that they “needed the job” that badly. Every employer I know is having problems finding and keeping decent employees. The point is, if they need the job that badly, chances are they are mismanaging their finances, are afraid that their skill set is not marketable, or simply fear change itself. That is a poor justification for allowing oneself to suffer wrongful or abusive conduct.
Lastly, is the issue of embarrassment. There is the fear of ridicule, the fear of public disclosure and the surrender of control over one’s image. But what can be more embarrassing? Suffering silently, at great expense to one’s soul; or speaking up for oneself, regardless of the immediate outcome?
The greatest Catch 22s associated with these fears is that they seldom come to life. Employees fear retaliation, job loss and embarrassment that, more often than not, does not occur. The flip side of their fear is that by speaking up, the improper conduct will usually stop and the employee can go back to doing their job without interference.
As you have perhaps heard, the word fear is an acronym for:
False
Expectations
Appearing
Real
Where do these fears come from, especially when most of today’s corporate policies are designed to eliminate wrongful conduct and make it clear that retaliation is itself against the law? Chances are they come from childhood experiences where the person was victimized and then punished for complaining about it. Sooner or later we learn to keep it all inside rather than risk retaliation, financial loss or embarrassment. As a result, we generate an emotional override that renders any logical approach to the circumstances meaningless.
Since risk management is not in the therapy business, what is an employer or risk manager to do? I suggest two things:
(1) Eliminate the argument of “I didn’t know” by asking them if they do know. Ask for example, “Do you understand and agree to comply with the company’s policies and procedures prohibiting harassment, discrimination, safety and ethical violations?” Yes or no? If they answer “no,” then make sure you take them through an education process until they are capable of answering “yes.” Imagine somebody trying to claim they “did not know” after memorializing that they did. Rough case at best.
(2) The second question to ask is, “Have you been a victim of or witness to a violation of one of these policies?” Yes or no? This is perhaps the single most powerful question that can be asked to eliminate employment law claims. When people are steeped in a culture of silence, you have to create mechanisms that force them to speak up. If the employee answers “no,” then you should have little to worry about. If they answer “yes,” then it is time to engage in conflict resolution, dialogue, investigation, further education, etc. Note that I include the witness as a participant in this inquiry. In the majority of cases I have litigated, it comes down to “he said versus she said” type testimony with the result being decided on what witnesses have to say. Witnesses can also feel like victims and be subject to the same fears and culture of silence. 
ABOUT THE AUTHOR
Don Phin is an attorney who for more than 16 years, has specialized in the litigation of employment and business cases. He has represented hundreds of employees, partners and companies in that time. Don has litigated wrongful termination, race and age discrimination, sexual harassment, whistle-blower, trade-secret theft, fraud, partnership dissolution and many other cases to a successful conclusion. In 1995, Don obtained the status of a Certified Professional Consultant to Management (CPCM). Since then, he spends a large part of his time consulting, writing, speaking and coaching.
Don’s seminars, workshops and reports have been delivered to such groups as the International Risk Management Institute, Insurance Marketing and Management Services, The Executive Committee, The CEO Club, The Society for Human Resource Management, Foundation of Enterprise Development, The National Human Resource Association and The National Association of Professional Consultants to Management.
riskVue | The webzine for risk management profesionals
August 2000
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