Seeing Past “Willful Blindness”

I often tell the story of a project manager at Microsoft who wasn’t very good at it. Among other reasons, he didn’t use project management software to control the work, despite Microsoft Project being the industry leader.

Once he and my office-mate drove separately to an offsite meeting. She got there first despite having left after him. He explained that he knew there had to be a better route, but just took the way he’d always gone. I thought it a perfect metaphor for his approach to project management.

From the world of law comes an applicable concept anyone who has held a job has witnessed. Legal scholars and business ethicists call this “willful blindness.” Under the familiar trichotomy of Known-Knowns, Known-Unknowns, and Unknown-Unknowns, this is related to the middle condition: You know there is something out there you could probably learn more about with effort. Those engaging in willful blindness don’t make the effort.

In 1962 the American Law Institute published a Model Penal Code to help state legislators better organize, standardize, and define various aspects of criminal law. It had a major impact on state legislatures, and various sources credit it with clarifying different levels of criminal intent. One law professor explains, “knowledge of a fact is satisfied by finding an ‘awareness of a high probability’ that it existed. The drafters of the Code explain that they defined knowledge of a fact this way in order to address…  ‘the case of the actor who is aware of the probable existence of a material fact but does not determine whether the fact exists or does not exist.’”[1]

As a result of the Code, “All the federal (circuit courts) have employed willful blindness doctrines,” the professor continues. “These doctrines are used in order to facilitate conviction of defendants who may not have had actual knowledge of the crucial fact but who are considered culpable nonetheless.”

The idea originated in English law in 1861, he says. A judge “ruled that an accused could not be convicted for possession of ‘naval stores’ unless the jury found that he ‘knew that the goods were government stores or willfully shut his eyes to the fact.’”

Examples in the workplace abound. A nursing journal editor contributes these:

  • “a chief of service who was notorious for ordering unwarranted bronchoscopies. Several nurses had complained, but nothing happened… Only when a newly hired pathologist sided with the nurses and brought the situation to the hospital board, warning of potential lawsuits, was action taken.”
  • “Most of us probably remember nurses we didn’t want to work with because they were incompetent, had a poor attitude, or otherwise just didn’t measure up… but (we) kept silent about, and when that nurse was finally ‘let go,’ everyone breathed a sigh of relief.”
  • And in the worst case, “convicted serial killer and nurse Charles Cullen… was passed along from hospital to hospital, even though many people later said they’d felt sure he was involved in patient deaths.”[2]

In a fabulous and sad study showing how people hurt themselves when they hurt others, economists used public records to check whether people involved in the mortgage-backed security industry—a primary source of the housing price bubble that led to the Great Recession—prepared for the coming crisis. These were the experts best placed to know what was coming, at least in private industry. Compared to similar professionals with similar incomes and financial risks, did they sell or delay buying personal homes after the bubble was obvious to them (but before it burst)? No. In fact, they actually invested more in their housing relative to their wealthy peers.[3] By turning a blind eye to the signs academics and economists were openly discussing at the time, these people threw their own money into the trash, consigning that of millions of nonexperts to the dumpster as well.

Philosophy professor Kevin Lynch provides a detailed definition of willful blindness, positing that it is different from self-deception, in which we convince ourselves something is not true. For the situation to be willful blindness, he says:

  • There must be a fact—it has to be true—that someone I’ll call “George” knows could exist.
  • George knows actions he could do (or not do) to learn that fact.
  • It wouldn’t be “exorbitantly demanding” to make that effort.
  • George does not make the effort, because he doesn’t want to know the fact.
  • And, “it is arguable that he should.”[4]

The Buddha speaks of “sentient beings” who choose to remain mired in delusive ways of seeking happiness through temporary pleasures instead of adopting a more lasting solution like the one he offers. In modern terms, they see people like them who are happier than they are, surely are aware of concepts like meditation or therapy, yet create rationalizations to avoid even looking into them… just looking into them, much less trying them. Managers who ignore problems in their workplaces, or do not aggressively address them, are guilty of the same rationalizations. They also are guilty of allowing if not creating unnecessary distress for their employees, peers, and customers.

This in turn can hurt their employers. Willful blindness has lost lawsuits. “Historically, companies have faced liability for the failure to properly address allegations of sexual harassment or sexual misconduct. In more recent cases, the allegations depict toxic work environments and willful blindness by directors,” write two lawyers from a liability and corporate governance practice, in an article aimed at corporate directors.[5]

Another legal scholar argues, related to a particular U.S. law, “proper application of the willful blindness doctrine avoids the risk of convicting merely negligent defendants, but at the same time provides an alternative way of convicting corporate officers who shield themselves from guilty knowledge by delegating ‘hands-on’ responsibilities to subordinates.”[6] In short, you can’t delegate your legal and ethical obligations.

Ironically, many business people would be outraged by another example of willful blindness. The Regulatory Flexibility Act was passed in 1980 “to ensure that regulators take into account the individual rights of ordinary small businessmen and women while achieving the policy goals that the legislature has dictated,” according to another law professor. Congress specifically prohibited willful blindness in this law, but in government as in business, it persists. “Unfortunately, over the past twenty-five years, federal regulators have often ignored section 610 and have not conducted periodic reviews of their rules. Even those agencies which review some of their existing rules under section 610 rarely act in response to their reviews.”[7]

We can break through willful blindness in ourselves by practicing Right Awareness from the Buddha’s Noble Eightfold Path. The other day I downloaded the latest issue of Project Management Journal and caught myself on the verge of bypassing one of the articles after glancing at the abstract. It seemed to conclude something about changing to the Agile method called Kanban that I disagree with. “That’s crap,” I heard myself say, and my finger hovered over the “Delete” button.

Somehow, though, I caught myself. I have been proven wrong by better evidence before, admitted it publicly, and changed my publications and presentations accordingly. In this case I managed to recognize “confirmation bias” at work in my own brain—the well-documented human tendency to seek only information supporting our preconceived positions and avoid that which doesn’t.

So I forced an attitude change, telling myself I was going to read this article as if I wanted my mind changed. This time that was not to be; the study did not really address the question, and the reasons its subjects gave for switching from Scrum mostly resulted from faulty implementations of Scrum. To my bemusement, my confirmation bias almost caused me to miss more evidence for another of my grand propositions: that most claimed “failures” of best practices are due to undisciplined applications thereof.

Admitting I might suffer from willful blindness allowed me to resist it, and resisting led to a pleasant outcome. And if it turns out someday that the preponderance of new evidence proves me wrong, that will make me a better management coach. Either way, I and my clients win when I remove my own blinders.

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Sources:

[1] Jonathan L. Marcus, “Model Penal Code Section 2.02(7) and Willful Blindness,” The Yale Law Journal 102, no. 8 (June 1993): 2231, https://doi.org/10.2307/796865.

[2] Maureen Kennedy, “Willful Blindness: Refusing to See What We Know Is There,” American Journal of Nursing 115, no. 7 (July 2015).

[3] Ing-Haw Cheng, Sahil Raina, and Wei Xiong, “Wall Street and the Housing Bubble,” American Economic Review 104, no. 9 (September 2014): 2797–2829, https://doi.org/10.1257/aer.104.9.2797.

[4] Kevin Lynch, “Willful Ignorance and Self-Deception,” Philosophical Studies 173, no. 2 (February 2016): 505–23, https://doi.org/10.1007/s11098-015-0504-3.

[5] Stephanie Resnick and John C. Fuller, “Can Shareholders Hold Directors Liable for Failing to Address Social Issues?,” Board Leadership 2018, no. 158 (July 2018): 1–7, https://doi.org/10.1002/bl.30108.

[6] Stefan A Noe, “‘Willful Blindness’: A Better Doctrine for Holding Corporate Officers Criminally Responsible for RCRA Violations,” DePaul Law Review 42 (1993): 1461.

[7] Michael R See, “Willful Blindness: Federal Agencies’ Failure to Comply with the Regulatory Flexibility Act’s Periodic Review Requirement-And Current Proposals to Invigorate the Act,” Fordham Urban Law Review 33, no. 4 (2006): 56.

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