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Many managers approach on-the-job conflict as new skiers approach a downhill slope. They are guided by a fear of confrontation and their instinct is to avoid all trouble. The new skier leans back, the opposite of a safe and effective posture. The manager also pulls back, allowing a bad situation to get worse.

Leaning back to avoid trouble or lawsuits actually increases risk. This is because the protection that such avoidance offers is illusory. Employment litigation is not always based on a supervisor’s direct action against an employee. Many harassment cases, for example, arise from management inaction, such as the failure to respond to early reports of unwelcome workplace conduct. Ultimately, in those cases, the employer may be found liable for failure to take reasonable preventive or remedial action.

In failing to discipline employees who seem like trouble, managers effectively encourage these staff members to repeat and intensify the negative behaviors that signaled the problem. At some point when the behavior can no longer be ignored or tolerated and action is taken, the employee is likely to respond by filing a lawsuit against the company. Often, employees charge that they were never told that what they were doing was against company policy. Then management’s long avoidance of the problem makes defending against the claim more difficult, since there is a major question about why long-tolerated negative behavior suddenly became unacceptable. Thus, rather than creating a safe harbor, the instinct to avoid litigation helps pave the way to the courthouse.

AVOIDANCE. One company manufactured a highly sophisticated commercial food-processing system that sold for up to $250,000. Parts alone accounted for tens of thousands of dollars per sale. The company organized its sales force into two departments: Systems and Parts.

A new CFO decided the company could boost sales by increasing competition between the two departments. He devised an incentive compensation plan that created a zero-sum game between the two groups. The more commissions Systems earned, the fewer Parts earned, and vice versa.

The CFO got his wish for increased competition, but not in terms of increased sales. First, the two departments stopped sharing information with each other. Next, reports surfaced that employees in one department were spying on the other, including slipping into offices and reviewing hard copy and computer files.

Finally, rumors flew that employees in Parts had conspired against Systems by helping a competitor sell a system to a prospective customer, cutting Systems entirely out of the deal. The Systems department manager confronted his counterpart in Parts. The two men unleashed months of pent-up frustration, mistrust, and anger. One of the managers then attacked the other with a hammer. The company called in law enforcement and medical personnel; employment attorneys eventually followed.

In investigating the case, senior managers learned that several months had elapsed between the first signs of trouble and the managers’ violent confrontation. Employees and management were aware of the growing mistrust and tension. Clear warning signs had surfaced—blocked information, internal spying, departments actively undermining each other—yet no one acted to head off the crisis.

The instinct to avoid the problem had paralyzed the company’s leadership. The more negative, stressful, and dangerous the situation became, the more management’s reluctance to deal with it increased. Even after the outburst, company executives fired the employees but chose not to confront the problems inherent in the incentive compensation plan. They clung to the trouble they had, rather than risk a change.

OPPORTUNITY. Opportunities are similar to problems in that they involve uncertainty. For example, there is no guarantee that investing in any employee, much less a problematic one, will produce a positive return. However, most managers don’t even try. The uncertainty of success triggers their managerial instinct to lean back on the skis to protect themselves. As a result, just as problems are not solved, opportunities are not exploited.

In one such case, a young attorney just out of law school joined a prestigious law firm as a junior associate. Full of ambition and high expectations, he plunged into his new job. The attorney was bright and talented but unseasoned, and he had a tendency toward abrasiveness when stressed. He made mistakes.

It soon became obvious that a number of partners were avoiding giving him projects. Offers of training, coaching, and mentoring dried up. Over time, his embitterment and eroding self-confidence intensified the cycle of mistakes and abrasiveness, and the partners avoided him even more. Eventually, he left. The firm collectively shrugged him off as a waste of talent. The attorney shrugged off his first employer as rotten luck.

The lawyer found a job with another prestigious firm, arriving with the same strengths and weaknesses. The difference, however, was the way the new employer viewed this mix. The former focused on the negatives and drew away from him, whereas the latter saw more potential than imperfection.

The new firm actively mentored the young attorney, helping him develop his talent, while making it clear that the abrasiveness had to go. This time, the lawyer thrived—in the same field, in the same type of job, and doing the same type of work as with his first employer. He eventually became a partner, highly regarded in the legal community and a source of prestige and excellent clients for his law firm.

The first law firm missed a crucial point—employee problems are often opportunities in disguise. The attorney could have developed into as valuable a contributor at the first firm as at the second. However, this was not possible because at the first sign of difficulty, the first firm began avoiding the problem. The instinct to avoid, not only prevented the firm’s management from solving a problem, but it also eliminated its ability to develop an opportunity.

WEIGHT FORWARD. Managers should use the beginning-skier instinct as a behavioral trigger to do the opposite. This means that when instinct says to avoid, delay, put off, or let someone else handle the issue, managers should treat this feeling as a signal to confront the situation and resolve it. For the workplace skier, here are two major techniques to keep in mind: always complete the run and, when in doubt, lean forward.

Complete the run. After receiving a complaint of sexual harassment at an out-of-state office, the HR director of a large company promptly flew there and investigated. The offending employee essentially admitted that the complainant’s allegations were true but asserted that he had not known his conduct caused offense.

The HR director and local office manager issued a written reprimand and warning based on his conduct. The employee apologized and ceased further conduct of a sexual nature. The complainant accepted the apology. Concluding that the matter had been resolved successfully, the HR director flew home.

All was not well, however. Although the male worker ceased further sexual misconduct, he misguidedly attempted to make his colleague feel more comfortable by keeping his distance. She interpreted this distance as resentment and gave him similar space. Silently, the division grew. The office manager sensed the problem but ignored it in an effort to avoid further confrontation. Eventually, a seemingly innocuous exchange between the coworkers broke into open conflict. The female employee stormed out of the office and did not return. Instead, she hired a lawyer and brought claims of sexual harassment and retaliation.

The employer had originally gotten off to an excellent start in this case. The HR director had quickly conducted an investigation and had formulated, communicated, and executed a sound corrective-action plan. However, in cases involving internal harassment complaints, the run is not skied until all parties are reintegrated into a positive working environment.

Apologies and promises to behave differently are important, but they may not be sufficient when wounds are fresh and the danger of misunderstandings or erroneous assumptions still exists. By leaving the parties to their own devices to resume a working relationship, the HR director and office manager undid their positive work.

The HR director’s action lacked follow-up, and the office manager gave in to the self-protective instinct to lean back. The HR director should have discussed with these employees how to resume their working relationship, and she should have made sure to resolve lingering concerns. She should also have checked back later to see how both parties were doing. The office manager should have intervened when he first saw the problem early on, before any real damage was done.

In another case, a secretary struggled in her job. Her company had recently switched software programs, and she was having difficulty making the transition. Her frustration was mirrored by her boss, who depended on her work. Eventually, she quit and filed for unemployment. The HR department opposed her application for benefits on the ground that she left voluntarily. She responded by asserting that she left for good cause—to escape sexual harassment. This was the first the employer heard of the alleged problem.

After receiving this information, the general manager had some decisions to make. Should he continue to contest the unemployment claim because the employee never notified the company of the alleged problem? Or should the company quietly back away from the proceeding and cross its fingers in hopes that the former employee would not eventually move on to a different forum where the stakes would be much higher?

Ultimately, the manager did neither. He conducted an internal investigation as if the secretary were still employed. He telephoned the former employee, expressed concern about potential problems in the work environment, and asked for information so that he could conduct an investigation. He learned that several staff members, including a couple of supervisors, had engaged in joking and teasing of a sexual nature. Although no one had ever complained, the manager determined that this conduct was inconsistent with company policy and values. As a result, he reprimanded the supervisors and arranged for anti-harassment training.

The manager then contacted the former employee again, explained what had been done, and apologized if she had been offended or felt uncomfortable in the workplace. He also explained that the company would not contest her application for unemployment benefits.

The manager’s staff predicted that he was, in effect, inviting her to sue for sexual harassment. However, the former employee thanked him for his attention to her concerns and did not file a sexual harassment claim. Further, she subsequently played a pivotal role in averting another disgruntled employee’s sexual harassment claim. On the company’s behalf, she submitted an affidavit that persuaded the Equal Employment Opportunity Commission to find in the company’s favor and dissuaded the other ex-employee and her attorney from going forward. This case shows how not avoiding the issue can pay dividends.

Lean forward. Many employers have policies establishing initial probationary employment periods in which they assess the fitness of new employees. However, most employers don’t use these policies effectively.

The new CEO of a struggling long-distance telephone company turned its fortunes around by creating a weight-forward culture in his organization. A key step was to adopt a policy establishing a 60-day initial review period for new hires to determine whether they were well suited to the job.

If signs arose that the new hire would not be able to meet expectations, action was taken. The company held managers and supervisors accountable for how effectively they used this policy and whether they overlooked warning signs that later ripened into major problems. This proactive approach not only paid off in weeding out poor performers quickly, but it also impressed on employees and supervisors the necessity of meeting expectations and being productive—lessons that continued long after the 60-day mark. During this CEO’s tenure, the company posted 15 consecutive years of increasing profitability.

The company’s assertiveness in terminating poor hires would seem to make it an excellent candidate for employment litigation. Ironically, the contrary was true. Hundreds of terminations over the years produced no claims. The company’s weight-forward approach let employees know where they stood and promoted consistent treatment. Instead of succumbing to the instinct to avoid (often out of a fear of potential legal trouble), this employer made it a practice to confront employee problems at the earliest opportunity and solve them either by helping the employee make the necessary corrections or by recognizing that the employee needed to work elsewhere.

There may be wisdom in the adage “trust your instincts.” However, it will not work in employment issues until managers have mastered the habit of keeping their weight forward on their skis. Now is the time to translate the avoidance instinct into a message to apply energy, initiative, and gumption. In other words, it’s time to ski the entire run—moguls and all.

Jathan Janove is principal of Janove Baar Associates, L.C., a law firm in Salt Lake City that exclusively represents employers. This article is excerpted from his recent book Managing to Stay Out of Court, published by Berrett-Koehler Publishers of San Francisco. To purchase the book, call 415/288-0260 or visit the publisher’s Web site atwww.bkconnection.com.