Are we selling out volunteer potential by allowing fear of lawsuits to challenge our desired activities?

It is hard to open any periodical addressed to the nonprofit community without encountering articles warning about potential liability and offering risk management advice. Much of this is a sensible reaction to the increasingly litigious nature of our society right now. Citizens seem to turn to the courts not only to resolve disputes but also to claim damages for even the most minor of incidents. But the question confronting us is whether or not we can allow avoidance of risk to dominate our decision making about volunteer activity.

I should acknowledge that I approach this subject with a rather maverick perspective. First, I take the decidedly unusual position that lawyers, accountants, and insurance agents are servants. Their job is not to tell an organization what it should not do. Rather, their role is to listen to what the organization wants to do and then find the legal and best way to permit that action to go forward. In too many situations, especially those involving volunteers, attorneys and accountants advise avoiding any plan with potential risk--often without doing any research into the legal precedents. If it "sounds" as if the organization could be open to a lawsuit, such advisors are against it.

The problem is that the work of many nonprofit organizations, and specifically the assignments of greatest importance for volunteers, are often inherently risky. There is no way around this reality. In many cases, no one else wants to tackle the problem or reach out to a particular client group exactly because the work is hard, perhaps still unsolvable, and with many unknowns. Can we attack serious problems creatively without selling our souls to practice "risk management"? The question is not: Can we prevent liability? It is: Are we willing to defend our volunteers and employees in court if someone tries to sue?

The long-standing tradition of volunteer action is that volunteers are on the cutting-edge of change, usually responding to needs before formal institutions even acknowledge the problem. Consider just a few of the issues about which concerned volunteers have led the way in just the last fifteen years or so--often dragging the "establishment" behind it, kicking and screaming, until the activist position was ultimately recognized as right:

Even this brief list begins to highlight the incongruity of discussing "risk management" in the face of uphill battles to make a difference. In truth, the person who asks "will I get sued?" when considering whether to give out blankets at midnight to homeless people on the street is probably the wrong volunteer candidate.

If an organization has set out to create social change or to serve a population in need, it will end up confronting those with a vested interest in the status quo. Board members must accept this as one element of accomplishing mission. Frontline volunteers must recognize that they are extending themselves in ways that many others would not want to do. Remember: Behold the turtle, who only makes progress when he sticks his head out.

It is undoubtedly important to assess all situations for their safety risks and in protecting clients, volunteers and employees from unnecessary danger. This means that any organization has the obligation to define its services and the role of its paid and unpaid staff, train people to be as competent as possible, supervise effectively, evaluate performance, maintain standards, and provide appropriate work space and tools. It is just as helpful to the homeless if blankets are distributed by two or three volunteers in a group for personal safety as if by only one volunteer in jeopardy on the street. And it's easier to recruit volunteers if basic comfort and security issues are resolved. All of this type of risk management seems like plain old good management.

If an organization or an individual employee or volunteer behaves negligently or does wrong willfully, why should the person wronged not sue? The old "Good Samaritan" argument that deeds done in the spirit of helpfulness should not be judged by the same standards of care as other actions has always seemed counter-productive to me. Ironically, in recent years the nonprofit community has lobbied for legislation that restores blanket protection to volunteers. The various "Volunteer Protection Acts" proposed at the federal and state levels seem rooted in the concern that only if people are protected from suit will they volunteer. In individual cases this may be true but, once again, these reluctant recruits are probably not the right candidates for volunteer work that carries inherent risk. Further, if we legislate that volunteers cannot be sued for their contributed services, simply because they are volunteers, what is the message we send about quality of care?

Every organization must grapple with its own tolerance for risk. Just be sure that fear of liability does not lead to narrow and confined roles for volunteers. You can always pay someone to play it safe; allow volunteers to stretch the limits and experiment. Practice conscientious management and then be willing to defend your activities passionately should someone decide to take you to court. What you gain by accepting some risk is as great as what you lose by avoiding it.