Should our business
and personal lives be controlled by general principles of behavior or
by specific rules and laws that address most areas of activity? While
most of us will opt for the former, we live in a world constrained by
the latter. Most religions began with simple statements of ethical behavior
but, over the centuries, theocratic and selfappointed interpreters enveloped
these ideas in reams of rules, rituals and regulations. Libertarians in
many countries rail against the regulatory minutiae that, they argue,
corrupt our freedoms, while contrarians point out the inherent fallibility
of the human species, preferring numerous laws that control almost every
aspect of our lives. I believe that the answer is that delicate balance
between the two extremes.
In the United States,
an accounting system built on specific rules for every transaction led,
in part, to the recent financial scandals and the dissolution of trust
in reported financial figures. These events were the catalysts for the
current international effort to develop global “generally accepted
accounting” principles, instead of multitudinous and detailed rules,
in an attempt to avoid future problems like those experienced in the US.
Simplicity over complexity and principles over rules are the new mantras.
Yet we move in the
wrong direction almost every day. While lecturing in Canada in May, I
read about another example of trying to right presumed wrongs by over-controlling
organizational and individual behavior. The Province of Quebec has enacted
a new law that took effect on June 1, 2004, one that purports to prevent
“hostile behavior and intimidation” in the workplace. This
amendment to Quebec’s Labour Standards Act, (Le harcèlement
psychologique au travail) prohibits “psychological harassment”,
defined as “any vexatious behaviour in the form of repeated and
hostile or unwanted conduct, verbal comments, actions or gestures that
affect an employee’s dignity or psychological or physical integrity
and that results in a harmful work environment for the employee.”
The law says that
this activity can come from a manager, fellow-employee, customer or supplier.
It can manifest itself “in the form of conduct, verbal comments,
actions or gestures characterized by the following criteria: they are
repetitive; they are hostile and unwanted; they affect the person’s
dignity or psychological integrity; and they result in a harmful work
environment. It includes humiliating or abusive behaviour that lowers
a person’s self-esteem or causes his torment.”
I support the idea
of eliminating reprehensible behavior. In my career I’ve experienced
it several times. But is it so pervasive that we need another law to prohibit
it, supported by a fine of C$10,000 and the threat of damages paid to
the victim? And, despite the length of this law, aren’t its phrases
so vague as to be easily misinterpreted? What is “self-esteem”?
What is “psychological integrity”? What is “vexatious
behaviour”? Here’s a field-day for plaintiffs’ lawyers.
Of course, the counter-argument
is that real (and imagined) slights have occurred, and will continue to
occur. Should we try and alter behavior with new laws and their resulting
litigaton, or with publicity and transparency? I know of three other countries
that have similar legislation or regulations: Sweden (1994), France (2002) and Belgium
(2002). A bill is also pending to extend this mandate to all of Canada.
I queried one European
risk manager who reported that his firm had already addressed these problems:
“As a truly multinational and multicultural company, we pay attention
to all kinds of social mores, behavioral codes and employment regulations
in different countries around the world.” To me, this is the best
response: increasing stakeholder (employee, customer and supplier) awareness
of potential problems through clear and explicit policies, supported by
an effective complaint procedure and internal enforcement. Yes, harassment
is a continuing problem, but, no, I don’t think it requires legislation,
as Quebec has done, to improve the situation. Let principles, not rules,
prevail. (For more detail on this new Quebec law, go to www.cnt.gouv.qc.ca.)
As a last resort,
as I suggested to my European correspondent, we could return to the solution
of past years: if your “honor” is impugned, simply call out
the offender to the dueling fields! It’s cleaner, neater and involves
no extravagant legal fees!
We have to reject the egotistical human notion that we can, or should, discover
and explain everything.
Robertson Davies, "A Merry Heart", McClelland &
Stewart, Toronto 1996