INTRODUCTION

Tonight I am going to talk about the choices open to an employee who finds herself in an ethical dilemma in the workplace, and the possible consequences of exercising those options.

I am also going to present a framework for THINKING about the problem of what to do if asked to do something unethical or illegal and deciding what to do.

I am NOT going to tell you how to decide if you are being faced with an ethical dilemma--that is different for each person, as you will see when you hear about the framework for thinking about this problem.

Gandhi included in his SEVEN BLUNDERS OF THE WORLD THAT LEAD TO VIOLENCE one about "Commerce Without Morality." His words were:

"Commerce Without Morality: As in wealth without work we indulge in commerce without morality to make more money by any means possible. Price gouging, palming off inferior products, cheating and making false claims are a few of the obvious ways in which we indulge in commerce without morality. There are also thousands of other ways in which we do immoral or unethical business. When profit making becomes the most important aspect of business, morals and ethics usually go overboard. We cut benefits and even salaries of employees. If possible we employ "slave" labor, like the sweat shops and migrant farm workers in New York and California where workers are thoroughly exploited. Profit supersedes the needs of people. When business is unable to deal with labor it begins to mechanize. Mechanization, it is claimed, increases efficiency, but in reality it is instituted simply to make more money. Alternate jobs may be created for a few. Others will fall by the wayside and languish. Who cares? People don't matter, profits do. In more sophisticated language what we are really saying is that those who cannot keep up with the technological changes and exigencies of the times do not deserve to live--a concept on which Hitler built the Nazi Party. If society does not care for such people, can we blame them if they become criminals?"

Gandhi was speaking at an earlier time, and from the point of view of the greedy entrepreneur. Little did he know that matters were going to get a whole lot worse--that many ordinary employees, with no stake in ill-gotten profits, would be expected to carry out unethical or illegal activities in the routine course of their duties if they wanted to go on feeding their families. Unethical acts that endanger public health and safety or defraud are widespread. This ranges from falsifying time cards for projects, or fudging test results for buildings or equipment that might subsequently fail and kill people, to bypassing safety rules in nuclear power plants with the possible result of wiping out life in large parts of the planet.

The trend is for more and more Americans to be employees. Professions that formerly offered the opportunity for private practice and greater freedoms are increasingly being brought into large organizations. Eighty percent of all engineers are employees, and more and more physicians and architects are being pressured to become employees. As employees, we pretty much have to do what we are told. That's part of the deal. But what if we are told (or expected) to do something that is illegal or that may cause serious harm to others? Consider the plight of a physician in a managed-care setting. It is one thing to be told to "keep costs down" and quite another to be forbidden, upon pain of dismissal, to even discuss with patients treatment options that the employer deems too costly.

DEFINITIONS AND DISTINCTIONS

In this talk, I draw a distinction between ethical issues, which are based on broadly accepted standards of right and wrong as laid out in codes of ethics, and issues of personal morality pertaining to individual conduct. Aspects of one's job may offend one's PERSONAL moral sense without being unethical or illegal. For example, a Muslim might find it offensive that female coworkers do not cover their heads. Or, an employee may think that the goods and services provided by his organization are offensive. In such cases, the employee can either put up with it or leave.

Instead, I am going to talk about cases in which an employee is asked or expected to perform illegal or unethical acts, or in which an employee becomes aware that illegal or unethical activities are being carried out, where "unethical activities" are those that might cause damage to the public, the environment, or fellow employees.

If the determination that an act is unethical derives from established codes of ethics, there is more societal support than if it is simply derived from a personal ethical sense. There is little enough societal support in any event, but if an employee is damaged and seeks recourse through the courts, reliance on an established code of ethics makes a much stronger case than reliance on a personal sense of ethics.

I am also not going to talk about specific codes of ethics, except to say that they exist. There are THOUSANDS of ethics codes for various professions and employment categories. Teaching ethics is also a big business--engineers, business students, and others are trained to split ethical hairs to a precise degree. However, enforcing these codes is like belling the cat. Enforcement is VERY difficult. Courts, though, do sometimes look at whether ethical objections are based on established codes of ethics for a profession or field. If a dismissed employees? ethical objections are NOT based on an established code, the courts often throw the case out as being simply a personal matter. In other words, you may know that it is wrong to kill people, but you had better find a code of ethics that specifically mentions not taking actions that harm human beings!

Standards of ethics should also be distinguished from laws. The fact that an action is legally permissible does not establish that it is morally and ethically permissible. Similarly, illegality does not imply immorality. We can all construct examples, based on our own experience and on common sense.

Moral statements are statements that something is right or wrong. There can, of course, be disagreement over moral statements. For example, employees may disagree about the morality of killing civilians, so that one engineer could work on a particular defense contract in good conscience and another could not. A code of ethics might simply mention not doing harm to human beings--leaving the interpretation up to the individual employee.

CHOICES AND OPTIONS FOR HANDLING ETHICAL PROBLEMS AS AN EMPLOYEE

Instead of discussing the ins and outs of developing and debating ethics standards, what I AM going to talk about is the various choices an employee has when faced with an ethical dilemma and the possible outcomes from those choices. In other words, I cannot tell other people what constitutes an ethical workplace problem--this is different for each person--but when you get into that situation, you will KNOW it and what I am providing is a taxonomy of options and the possible outcomes from exercising those choices.

I am also going to present a framework for THINKING about ethical problems in the workplace--hopefully BEFORE one is faced with a serious ethical problem. "Ethics" is often a gray area, so I am going to restrict my comments to cases where there is an established code of ethics for a profession or field and one is being asked to violate it.

The best course of action is to AVOID being put into a situation where one would have to perform illegal or unethical acts, but what about KNOWLEDGE of such acts if you think the consequences are dire? Can one in good conscience remain silent?

Being expected to perform actions that are illegal or unethical is usually a no-win situation. If we refuse, we get fired and possibly "black-listed" as "troublemakers" or--the ultimate sin these days--"not team players.". If we go along and do what we are told to do, we risk not only the bad conscience of doing harm but the very real consequences of getting blamed if the illegal acts are discovered. That usually results in loss of career or employment, and in some cases personal legal liability. The Nuremberg Defense ("I was just following orders") doesn't even work very well in the aftermath of real wars, during which ethics and morals had been abandoned in the interest of winning the war.

Consider the unfortunate engineer who had to sign off on the flight of the Challenger shuttle in 1986. He had not designed those O rings, nor been responsible for the range of tests performed, but he was in a position where the shuttle could not take off without his approval and his best engineering judgement was that the flight would be unsafe at the very cold temperatures that day. He hesitated, and had a code of engineering ethics to back him up, but both his own management and government managers brought a lot of pressure to bear. There were serious political considerations, both for his company and for the U.S. Government. This was toward the end of the Cold War, and President Reagan had made a major point of the shuttle flight with the school teacher aboard. He was told to "Take off your engineer's hat and put on your manager's hat." He did so, with results that we all know about. Who can ever forget the television coverage of that vapor trail dividing into two separate arms?

What would have happened to this man had he stood his ground as an engineer and refused to sign? He would no doubt have been fired. As it was, his career was essentially over after the shuttle exploded. That's what I mean by a "no-win" situation. This is a famous case, taught in many university courses on ethics. The question for the student--what should he have done?--is usually qualified by the caution to remember the age of this man and think about his chances of finding another job. Students are also urged to consider the latitude in making a technical prediction that the O-rings WOULD fail.

So, if the random workings of the business world place you in such a position, what are your choices?

• Doing nothing or delaying action--is always a choice. Sometimes things blow over.
• Attempting to negotiate with one's superiors is an honorable and forthright course, but one that is frequently not rewarded with a gold star.
• Going higher in the organization, skipping levels, is also a choice. This sometimes produces a result that is good for society but not so good for the employee, against whom the skipped superiors have many forms of retaliation.
• "Blowing the whistle" by airing one's concerns OUTSIDE of the organization is also a choice. Whether this is the first or the last choice depends on the characteristics of the organization.

The Option of Doing Nothing or Delaying

There are lots of ways to carry out this option, depending on the circumstances. An example will be provided later.

The Option of Negotiation Through Internal Channels

If we go through internal channels, the result is very often dismissal. While we dislike beginning with the assumption that everybody is crooked, the truth is that nobody in authority wants to HEAR about such problems. The rules of war--when customary moral and ethical considerations are suspended in the name of winning the war and thus preserving one's society--seem to have drifted downward into the organizational world. Increasingly, the competitive world of capitalism is viewed as war. The attitude is that preserving the organization is so important that customary moral and ethical considerations are suspended. Firms are merging and buying each other and getting larger and larger. The faceless corporation--which must be protected with the same fervor as are nations at war--prevails.

The Option of Voicing One's Concerns Higher in the Organization

Sometimes this works and higher management agrees with the employee. However, that does not protect the employee's job from retaliation by the people in between.

For example, in one instance, an engineer successfully convinced a vice-president, after having been brushed off by his immediate superiors, that one of the procedures being carried out was illegal and harmful. The procedure was then modified. This man had been with the company for 14 years. Immediately after his complaints were listened to and acted on, he was fired for insubordination. His subsequent lawsuit was dismissed on the grounds that the allegation of insubordination ruled and the ethical complain had not been material. (Essay #6, "Loyalty and Professional Responsibility", part of work done by Dr. Mike Rabins, Dr Charles Harris, Dr. Michael Pritchard and others on an NSF grant at Texas A & M University.)

The Option of Blowing the Whistle Outside The Organization

There is always the option of reporting wrongdoing through external channels--to government agencies or to the press. However, one had better resign first, since firing is sure to follow, and one may find oneself blacklisted and unable to get another job.

Anonymous whistle-blowing is an option, but this lacks credibility and often the identity of the whistle-blower can be determined anyway.

The contemporary culture is so complex that it is often difficult to foresee or even understand the eventual possible consequences of actions taken as an employee. One frequently has to accept on faith that health and safety rules have a reason--for example that a "cold pour" of concrete (freshly-mixed concrete poured on top of concrete that has already begun to set) may cause a structure to collapse at some future time--or that mixing outdated hamburger with fresh hamburger in a fast-food restaurant may make customers sick.

Taking actions that are harmful to society is not limited to architects, engineers, physicians, those with professional credentials whose seal or signature has legal impact. Ordinary workers in food stores or restaurants or repair shops can also be placed in the position of going along with illegal activities or being unemployed. For example, a mechanic may be told to use refurbished parts and certify them as new, or to skip maintenance steps and certify that they have been performed. The head of maintenance for Alaskan Airlines, in recent testimony shown on television, said that "You have to make mistakes if you are going to make a business grow." He apparently believed that "making the business grow" justified risking the lives of airline crews and passengers.

To make the point even more vividly, consider that any of you might have been a passenger on the aircraft that crashed and burned in Florida because spent oxygen containers had been illegally shipped as cargo. SOMEBODY had to sign-off on the falsified paperwork--"pencil-whipping", as it is called--and whether or not the person who did so understood the possible consequences of this action is murky. However, had the person refused, he or she would have probably been fired.

Worrying about the consequences of illegal or unethical actions is what drives some people to make the hard choice to be a whistleblower. I say this is a "hard choice" because what usually happens to whistleblowers in our society is not pleasant.

WHY IS THE PROBLEM OF ETHICAL DILEMMAS FOR EMPLOYEES GETTING WORSE?

What I have said so far does not paint a pretty picture of life in the land of the free and the home of the brave.

The personal problem of what to do when asked to perform illegal acts in the course of one's employment is becoming more severe--not just because more people ARE employees these days--but because here in the richest country in the world there is so little in the way of a social safety net that many essentials--such as health insurance--come from one's employment. What to do in this situation if one is an employee with family members who have pre-existing medical conditions that preclude private health insurance? Where is the balance between one's personal and immediate responsibilities and one's responsibility to the society at large, to one's profession, or to one's own career?

In the 1980's, the fashion in ethics circles was that organizations should be restructured to provide alternate channels for reporting wrongdoing so that "whistleblowing" was not necessary. Ethicist Michael Davis summarized this viewpoint in a wonderful paper called "Avoiding the Tragedy of Whistleblowing" in the Business and Professional Ethics Journal (Vol. 8, No. 4, pp 3 - 19). He made the point that even when the whistleblower is protected by law or policy, that employee is essentially lost as an organizational resource because trust has been destroyed and the employee can never again be a contributing part of the organization.

During the 1990's, as globalization or just plain greed caused organizations to downsize, to restructure, and to try in every way to squeeze every last penny out of every resource, we stopped hearing about arranging alternate channels to prevent whistleblowing. Tight labor market or not, employees are now much more expendable and it is easier to just get rid of the troublesome ones than to worry very much about spending resources on organizational structures to make whistleblowing unnecessary.

A hard fact to accept is that some problems have no solution. This is one of them. What I am going to talk about is not a solution, but rather a framework for THINKING about this problem and formulating one's own personal viewpoint.

A FRAMEWORK FOR DECIDING WHAT TO DO IF YOU ARE FACED WITH AN ETHICAL DILEMMA

Several years ago, I attended a national seminar on professional ethics put on by a reputable and respected national science organization. One talk has stayed in my mind. Unfortunately, the notes from that seminar have disappeared during the course of many moves, and I cannot give proper credit to the presenter. He was a professor at a school in one of the Carolinas, I think, and I regret that I cannot give him the credit that is his due. At any rate, I want to make it clear that the framework I am going to present here is not original--I got it from that wonderful lecture.

The presenter began by emphasizing that ours is NOT a society that likes whistleblowers, no matter how right their actions or how serious the actions they are reporting. So, he said, the first thing to do is to attempt to negotiate a solution based on the interests of the organization. The assumption is that illegal and harmful activities are not in the long-range interests of any organization. As I said, this was a viewpoint common in the 1980's, but by the 1990's began to suffer from a much shorter planning horizon and from the increasing knowledge that in business, crime frequently DOES pay.

Failing that, he said, one should evaluate a matrix of one's responsibilities. That is different for every person. The factors to be considered are:

• Personal and family responsibilities to other people (This can include co-workers.)
• Duty to the society at large (This includes the physical environment of the earth.)
• Duty to one's profession
• Effect on one's career

For each factor, one should try to estimate the worst case and the probability of its occurring. Then, the worst case results are prioritized. The talk was for engineers and scientists, so the presenter used a decision tree with probability branches and outcomes at the end of each branch. If statistics are not your cup of tea, simply list the worst-case outcomes and prioritize them in their order of significance in your life and conscience.

For example, the parent of a child with a chronic illness that would preclude obtaining private health insurance would weigh the loss of a job or career more heavily than would an employee with only him or herself to consider. A duty to the society at large might outweigh considerations of personal responsibility to family members if the consequences are grave--a nuclear meltdown, for example, in which many people could be expected to be killed.

Negotiation should be attempted, but carefully. The superiors with whom one is attempting to negotiate may know perfectly well that what they are asking the employee to do is illegal, and may not want to discuss this or continue the employment of anyone who has mentioned it.

Another option is to quietly circumvent the illegal directive, if at all possible. As an example, I offer one of my own experiences. When I was a quite junior consultant at one of the Big Ten firms, I collected, for a government contract, proprietary data from private firms with the clear understanding that these data were to be used for no other purpose. Not too long afterwards, one of the officers of the firm decided to use the data for another contract, one in the private sector. I knew there was no point in discussing this ethical--and possibly legal--violation. Instead, I went into the office in the middle of the night, removed the data from the files, and put it into the burn bag for classified waste. When the data turned up missing, nothing much was thought about it. The place was ALWAYS disorganized, and the assumption was that the data had simply been lost or misfiled.

If one has evaluated one's own personal matrix and decided that she cannot live with the ethical violation, and options within the organization have been exhausted or believed to be ineffective, the next step is to "blow the whistle" by reporting the violations outside the organization. Whether or not this is combined with a resignation depends on the degree of statutory protection one enjoys. This is MUCH greater in the public than in the private sector. For private sector employees, the best choice is to find another job FIRST, and then blow the whistle on the violations at the previous job.

The framework discussed above is a simplistic application of Utilitarian Analysis, but a powerful one. Issues of ethics are usually not black-and-white. They are many shades of gray. Even questions about the legality or illegality of various actions are usually not simple. A structured analysis of one's duties and responsibilities, with probabilistic estimates of the likelihood of outcomes and of their consequences, is helpful.

OURS IS NOT A SOCIETY THAT LIKES WHISTLEBLOWERS

Let me get back to the assertion that ours is not a society that likes whistleblowers. Most employment is "at-will", meaning that an employee can be dismissed at any time for any reason.

Three major "exceptions" to the at-will doctrine are:

• Breach of an express or implied promise, including representations made in employee handbooks.
• Wrongful discharge in violation of public policy, and
• Breach of implied covenant of good faith and fair dealing.

You will notice that one of these is "wrongful discharge in violation of public policy." However, employees who are dismissed because they brought illegal practices to light do not have an easy time of it in court. As has often been said, "The business of America is business" and courts have been known to issue judgements NOT favorable to whistleblowers, even those who only blew the whistle INSIDE their organization. For example, a woman who reported wrongdoing through channels in her firm and was then fired was not protected because she did not report the wrongdoing OUTSIDE the firm and a court found that her dismissal fell under the category of internal company reasons rather than the violation of public policy rubric.

Even when there is a whistleblower statute, enforcing it is long, expensive, and difficult. I was president of the board of the ACLU in Washington, D.C. when we took on the famous whistleblower case of Ernie Fitzgerald. Fitzgerald, a cost analyst for the Air Force, had told a Senate hearing about the true, and astronomical, cost of the C-5A airplane. For this action, he was trashed all over the government and fired. A Washington law firm with a partner on our board was representing him pro bono for the ACLU, and as I recall, the pro bono time totaled a couple of million dollars before the case was successfully concluded. It took four years for Fitzgerald to get his job back. He was then demoted, denied a pay raise, and banished to some Pentagon attic. When he was proposed for a special award from the Institute of Industrial Engineers for outstanding service, the prize was canceled. Corporate members on the board of directors included officers from Lockheed, manufacturer of the C-5A. "They'll be after me as long as I live," says Fitzgerald, as reported in the WASHINGTON POST.

Following is a taxonomy of things that organizations do to discredit whistleblowers and even those who try to express their ethical concerns through internal channels. This is from a summary of the Government Accountability Project's handbook for whistleblowers, The Whistleblower's Survival Guide: Courage without Martyrdom.

Spotlight the Whistleblowers

This common retaliatory strategy seeks to make the whistleblower, instead of his or her message, the issue: employers will try to create smokescreens by attacking the sources motives, credibility, professional competence or virtually anything else that will work to cloud the issues s/he raised.

Manufacture a Poor Record

Employers occasionally spend months or years building a record to brand a whistleblower as a chronic problem employee. To lay the groundwork for termination, employers may begin to compile memoranda about any incident real or contrived, that conveys inadequate or problematic performance; whistleblowers who formerly received sterling performance evaluations may begin to receive poor ratings from supervisors.

Threaten Them into Silence

This tactic is commonly reflected in statements such as, "You'll never work again in this town/industry/agency?" Threats can also be indirect: employers may issue gag orders, for example, forbidding the whistleblower from speaking out under the threat of termination.

Isolate or Humiliate Them

Another retaliation technique is to make an example of the whistleblower by separating him or her from colleagues. This may remove him or her from access to information necessary to effectively blow the whistle.

Employers may also exercise the bureaucratic equivalent of placing a whistleblower in the public stocks: a top manager may be reassigned to tasks such as sweeping the floors or counting the rolls of toilet paper in the bathroom. Often this tactic is combined with measures to strip the whistleblower of his or her duties, sometimes to facilitate subsequent termination.

Set Them Up for Failure

Perhaps as common as the retaliatory tactic of isolating or humiliating whistleblowers by stripping them of their duties is its converse-overloading them with unmanageable work. This involves assigning a whistleblower responsibilities and then making it impossible to fulfill them.

Prosecute Them

The longstanding threat to attack whistleblowers for "stealing" the evidence used to expose the misconduct is becoming more serious, particularly for private property that is evidence of illegality. Having to sign waivers about the confidentiality of ALL workplace information as a condition of employment is becoming commonplace.

Eliminate Their Jobs or Paralyze Their Careers

A common tactic is to lay off whistleblowers even as the company or agency is hiring new staff. Employers may "reorganize" whistleblowers out of jobs or into marginalized positions. Another retaliation technique is to deep-freeze the careers of those who manage to thwart termination and hold onto their jobs: employers may simply deny all requests for promotion or transfer. Sometimes it is not enough merely to fire or make the whistleblowers rot in jobs. The goal is to make sure they " will never work again" in their field by blacklisting them: bad references for future job prospects are common.

GUIDE FOR WHISTLEBLOWERS

As for whistleblowing in general, there is an excellent guide on the web for how to go about this and what to consider ( BLOWING THE WHISTLE WISELY - 12 SURVIVAL STRATEGIES http://www.whistleblower.org/www/Tips.htm). Key issues covered are

• Before taking any irreversible steps, talk to your family or close friends about your decision to blow the whistle.
• Be alert and discreetly attempt to learn of any other witnesses who are upset about the wrongdoing.
• Before formally breaking ranks consider whether there is any reasonable way to work within the system by going to the first level of authority. If you do decide to break ranks, think carefully about whether you want to "go public" with your concerns or remain an anonymous source. Each strategy has implications: the decision depends on the quantity and quality of your evidence, your ability to camouflage your knowledge of key facts, the risks you are willing to assume and your willingness to endure intense public scrutiny.
• Develop a plan-such as strategically-timed release of information to government agencies-so that your employer is reacting to you, instead of vice-versa.
• Maintain good relations with administration and support staff.
• Before and after you blow the whistle, keep a careful record of events as they unfold. Try to construct a straightforward, factual log of the relevant activities and events on the job, keeping in mind that your employer will have access to your diary if there is a lawsuit.
• Identify and copy all necessary supporting records before drawing any suspicion to your concerns.
• Break the cycle of isolation and identify and seek a support network of potential allies, such as elected officials, journalists and activists. The solidarity of key constituencies can be more powerful than the bureaucracy you are challenging.
• Invest the funds to obtain a legal opinion from a competent lawyer.
• Always be on guard not to embellish your charges.
• Engage in whistleblowing initiatives on your own time and with your own resources, not your employer's.
• Don't wear your cynicism on your sleeve when working with the authorities.

Many states have whistleblowing laws, and these can be effective if one is fully prepared beforehand and learns from the errors of those who have gone before and had their cases thrown out (see URL above). Utah's whistelblowing law covers only public employees, not those in the private sector. (See Section 67-21-1 et seq.)From time to time there are murmurings that the Congress may pass federal whistleblowing legislation to protect employees in the private sector (public employees already have a law for this). However, the trend is not to disturb the mighty economic engine, so that is not likely to happen any time soon.

Employees in the private sector are pretty much on their own. What CAN they do? Here are some suggestions, things that I have seen used successfully.

• Always know where you could get another job FAST, so that you can change jobs before matters about your reporting of illegal activities or refusing to perform them get too nasty. Form a trust group of others in your field who will take you in on short notice, and whom you would take in on short notice. This may or may not involve people who will falsify references for you if need be.
• Accumulate assets and stay out of debt. Money means freedom--freedom to resign without another job if necessary, freedom to support your family if you are fired and it takes a long time to find another job, freedom to move to another community if necessary, freedom to pay legal fees if you have to. How do you go about this? Discipline yourself to routinely set aside a certain percentage of all income--not for your next car or next house or your children's education--but for your freedom and survival. Many routinely tithe to a church. I have not heard about churches? coming to the aid of their members when they run afoul of illegal or unethical activities in their workplace. They are more likely to point a finger and say that the person's trouble are due to unrighteousness! So tithe to yourself instead and hope that you never have to use the money to get out of an impossible ethical situation in the workplace. If you are lucky, it will be a nice nest egg for your golden years. If you are not lucky, and get into a jam, the money may make it possible for you to keep both your livelihood and your self-respect.

CONCLUSION

I have painted a dismal picture of the American workplace, and I think that matters are going to get a lot worse before they get any better. The pendulum always swings, but it may take a while for THIS one to turn around. In the long waves of Capital vs. Labor, labor is not currently on the winning side. And we are ALL labor--no matter how highly compensated--unless we control capital of our own. Some of us may even be slaves--if our indebtedness is high enough.

So how can we live with ourselves, and more importantly, what do we tell our children about the work world? Do the right thing and you will be rewarded and prosper? They probably know better. I should mention at this point that I am an Atheist speaking to a Humanist gathering, and rule out divine intervention as a solution. To those who say that if they are put in an impossible work situation--break the law and harm others or see their families on the street--God or Jesus or a guardian angel or whatever will rescue them--my reply is "How did God or Jesus or your guardian angel let you get into the situation in the first place?" Better to look to human society, human structures, and one's own intelligent planning for help.

--Marilyn T. Welles