Monday, May 2, 2016

The Unintended Cost of Legal Culpability

You ask many in the safety profession what we need more of and a fair number will say- accountability. What they really mean is culpability, i.e., punishment for the guilty. We need people to have real consequences for their actions. We see scandal after scandal, major accident after major accident. The body count rises and out of our mourning we begin to look for reason in the senselessness. Naturally (and we mean that in the most literal sense of the word), we look for who is responsible. We look to the government to punish the guilty. For instance, we applaud those lawmakers who propose to enhance legal culpability for organizations, such as the recent bill to make it easier to prosecute pipeline operators in California.

The logic here is pretty straightforward – we make it easier to punish organizational leaders, that should deter them from putting people in harms way just to make a profit!

There are some underlying assumptions with this logic that are worth pointing out. First, the assumption is that people act almost entirely based on incentives and reinforcement. This is familiar to many in safety. In safety we largely ignore the social sciences, but when we decide to pay attention to this area the behaviorist school of psychology dominates. To oversimplify a little bit, behaviorism is about carrots and sticks. People move toward carrots and run away from sticks. So, behaviorism predicts, increase the size of the stick and you will get less of the behavior you don’t want to see.

The second underlying assumption with the logic above is that leaders make risk decisions based upon a coherent calculation. They look at a decision, count up the carrots and the sticks and then do whatever the calculation tells them. If there are more carrots (or the carrots are more valuable) than the sticks, then they do whatever it is, and vice versa.

With these two assumptions the actions to increase culpability and blame for those after an accident make perfect sense.

But what if they are wrong?

Well, perhaps “wrong” is not the right way to characterize this, but maybe “only part of the story.” In our experience, the focus on creating legal culpability for safety has four unintended consequences.

  1. It creates risk calculations where none existed. The people who are the targets of pushes for legal culpability are…well, people. They don’t intend to hurt or kill people (they aren’t murderers). Often these decisions that seem like criminal events are merely mistakes, i.e., they think what they are doing is safe for all involved, but they are wrong (which is only easy to see in retrospect). By adding personal liability risk to those who make these decisions you change the decision-making process, which may cause the devious risk calculus that it is designed to discourage. An example of this is the classic study where a day care center attempted to reduce the number of parents who were late to pick up their children by adding a late-pickup fee. The result? An increase in the number of parents late to pickup their child. Adding the personal penalty created devious risk calculus that allowed parents to more easily justify picking up their child late. Adding legal culpability encourages people to weigh the costs, putting a tangible value on something that many would argue is invaluable – a human life. 
  2. It inhibits transparency. One of the things we’ve consistently run into in our business when we write up a report is concern about what would happen if the report gets out, particularly in high profile or public organizations. As a result we often go through a process where wording is challenged, lawyers have to review our findings and sometimes information is repressed. Organizations are so afraid of culpability that it inhibits responsibility. They don’t want to admit what’s really going on. But isn’t every organization imperfect? The fear of culpability has kowtowed organizations so much that we stop talking about the realities that organizations face – the fierce competition, the scarce resources, the uncertainties in decision-making. We unrealistically expect perfection from organizations to such an extent that it inhibits their ability to improve by inhibiting the flow of information. Wouldn’t it be better to create an environment where the organization sees value in being honest?
  3. It discourages safety innovation. In an environment where if you don’t make good decisions you can be held personally liable, what incentive do you have to innovate? Legal culpability encourages more of the same. There is safety in numbers, and the focus on legal culpability pushes organizations to do little more than do what everyone else is doing. Thinking outside of the box involves risk. What if you are wrong? You chose to take a risk in a situation where safety was involved. No wonder why the best the safety industry has to offer is new, shinier versions of what we’ve been doing for decades, regardless of whether there is evidence to suggest they are effective or not.
  4. It encourages blame of workers. Legal culpability puts organizations on the defensive. We have incentivized them to protect themselves. But, when a disaster occurs we need an explanation. Fortunately for us, there’s an easy explanation that almost everyone is ready to buy-into – worker error. Take the case of the tigertrainer who was recently mauled and blamed for her own death. There’s no discussion about what makes being a tiger tamer difficult or how normal organizational processes can lead to drift. Legal culpability creates an either/or scenario – either the organization is at fault or the worker is at fault. In that scenario, the worker has almost no chance. Now, when there’s a major disaster, such as the NASA shuttle disasters, Fukushima or Deepwater Horizon where intense scrutiny is put on the organization, often the organization’s contribution becomes clearer. But most of the time the media doesn’t care unless the organization is implicated. We incentivize organizations to blame the worker in those cases. Learning and improvement suffer, which largely guarantees history will repeat itself.

Now, we aren’t saying necessarily that we should do away with the legal system entirely, nor are we saying that there should not be consequences for law-breaking. The legal system serves more purposes than just ensuring safety. However, we are safety professionals, not lawyers. The idea that more legal culpability for organizations and leaders in organizations will give us more safety is, at best, not as clear-cut as it seems at first glance. At worst, it may be distracting us from other ways to influence organizations to make better decisions to reduce risk and enhance performance. After all, sure we want more accountability in organizations, but if we achieve accountability at the cost of communication, transparency, learning and innovation, what have we really gained?