When leaders and top performers are seen as above the rules, it erodes trust and engagement, increases legal risk: experts
Across North America, many employees don’t believe misconduct is handled the same way for everyone.
A recent survey of 1,000 US employees by TalentLMS found that 36 per cent witnessed and 33 per cent experienced incivility or disrespect in the workplace, and nearly two out of three said misconduct is more likely overlooked when the person involved is a top performer or leader.
Things seem to be similar in Canada. TELUS Health’s January 2024 Mental Health Index reported that 37 per cent of Canadian workers don’t perceive, or are unsure, that their workplace is committed to allowing employees to speak up without fear of punishment or humiliation. A similar proportion felt the same about whether harassment, bullying, and other harmful behaviours are quickly and fairly resolved in their workplace.
Another report by the Office of the Public Sector Integrity Commissioner from a few years ago found that one in five public-sector employees experienced workplace harassment, of which two-thirds were committed by someone in a position of authority. More than half who didn’t speak up about the behaviour felt it wouldn’t have made a difference.
For HR leaders, those numbers don’t just point to concerns over culture, but also to a specific risk: when managers and high performers are seen as too important to discipline fairly, employees question whether the system will protect them at all.
Why lighter discipline for leaders backfires
Employment lawyer Aleksandra Pressey of Williams HR Law says she often sees employers struggle most when they’ve already made an exception for a star performer and only then seek advice. By the time that HR is involved, an informal compromise has sometimes hardened into a precedent that’s hard to defend internally or externally.
From a strategic standpoint, Pressey argues that focusing narrowly on a high performer’s results ignores the wider cost to the organization if they behave poorly. She points to a recent situation where she challenged leaders to look at who else had been affected by a toxic leader or high performer.
“Maybe they were great for your business, but were they really? Because some of the things you have to think about is, who did you lose along the way and who didn't put their hand up and just voted with their feet and left?” she says. “If this is the way that they're talking to your employees, how do you know that they didn't say something to a potential client or a potential partner?”
Pressey also underlines the legal exposure that comes with inconsistent consequences for misconduct. When concerns about leaders or top performers are minimized, that increases legal liability on multiple fronts: “It depends on what kind of misconduct they've engaged in — you might have claims that you condoned harassment under the Occupational Health and Safety Act or condoned discrimination, or sometimes there are constructive dismissal claims where employees are saying the situation became intolerable, they had to leave, and you did nothing,” she says.
“And depending how serious it is, there could be additional claims that the organization acted in bad faith if they actually told somebody and it wasn’t taken seriously, whether explicitly or implicitly — then you're getting into the realm of extraordinary damages if they bring a legal claim.”
How double standards feed silence and toxicity
The TELUS Health index links perceptions of unfairness directly to mental health and productivity: workers who see their organization as unsupportive, or who perceive rewards and recognition as biased, report substantially worse scores on both measures. When employees doubt harassment will be resolved fairly or feel that they can't raise concerns without punishment, it'shappe a signal that psychological safety within the organization is fragile.
M. Sandy Hershcovis, a professor of organizational behaviour and human resources at the University of Calgary, says that leniency for high performers and leaders sends a message about accountability. “When organizations discipline high performers more lightly, they send a clear signal that some people are above the law,” says Hershcovis.
Hershcovis also notes that, according to academic research, leaders and decision-makers often engage in motivated moral reasoning: they downplay or justify misconduct when the person involved is highly valuable to the organization, which gives those high performers “idiosyncrasy credits” that give them latitude for questionable behaviour.
However, silence is rarely a sign that employees aren’t bothered when they see this happening in their organization, according to Hershcovis. “People don’t go silent because they don’t care, they go silent because they’re calculating risk,” she says. “Speaking up about harassment or misconduct already feels risky, so when employees see senior leaders or high performers receive softer consequences, it signals that raising concerns may not lead to fair resolution, or it could even backfire.”
The consequences of a culture of silence
Over time, those calculations create a culture of silence that normalizes harmful behaviour and deprives the organization of early warnings, says Hershcovis.
When you're creating a culture where people feel silenced, that's going to lead to higher turnover and the people who stay are likely going to be less engaged, says Pressey.
“And the other interesting thing that often happens is that people who feel that they can't raise their concerns internally will turn to some type of whistleblower behaviour — so often, if you portray that somebody internally is untouchable, you're not actually stopping the problem, you're just stopping your ability to control the escalation, ensure that you're performing your due diligence, and managing the situation. It’s still going to escalate, but now you're in reactive mode.” b
Pressey and Hershcovis agree that HR has a central role in resetting expectations around discipline, especially for senior leaders.
On the legal and governance side, Pressey says policies and oversight structures should explicitly contemplate allegations involving executives and board-level leaders, and those decisionmakers must be trained on their duties. “One of the things that I think organizations would always benefit from is making sure that everyone at all levels is aware of legal responsibilities and also the organization's policies, and the same thing goes for informing employees,” she says. “If you have a concern about X leader, you know there should be a clear mechanism by which to raise those concerns, and often we find that's lacking.”
Leadership increases accountability
Pressey also warns against the instinct to treat seniority as a shield, when it in fact could be reason to consider harsher discipline, given that leaders are supposed to be role models. “It may be that, by sheer nature of the fact that this is a more senior employee, a more serious corrective action is actually warranted — so not only should you not be lighter on them, perhaps you should be even more strict or severe in whatever corrective action you impose,” she says.
“It’s generally understood — and courts have recognized — that the more senior the leader and the more power they exercise in the workplace, the more their position requires accountability. Leadership increases accountability, it's not supposed to reduce it.”
From a culture and systems perspective, Hershcovis says consistency has to be visible, not just promised in policy documents. “[HR leaders] should apply the same standards, same process, and same consequences — fairness must be visible and consistent,” she says, suggesting that organizations should establish clear, predefined links between types of violations and consequences, an independent and well-documented investigation process, and discipline decisions that are calibrated across various levels of hierarchy.
Most importantly, says Hershcovis, HR leaders can help send a different signal about who the rules apply to. “Start by changing the signal and demonstrate clearly that rules apply upward, not just downward, and within the bounds of confidentiality, communicate that misconduct at any level is addressed consistently,” she says. “Pair that with a visible commitment to preventing retaliation, so that when employees see that even powerful individuals are held accountable, it begins to restore fairness, trust, and a sense of protection for everyone.”
Being clear and consistent will also help with perceptions that may not reflect reality, according to Pressey. “If people are seeing things, drawing judgments, and not speaking up, it speaks to how they perceive the organization — sometimes it's not really the fault of the organization, it might be somebody who's been burned by a similar situation somewhere else,” she says. “If people don't really understand how to escalate their concerns, I think that's going to deepen that perception.”
