CJ Exam 3 FOR PUJA

profilemicael14
chapter09.pdf

9CHAPTER Liability What Should Be the Consequence of Unethical Conduct?

Learning Objectives: � To understand the nature

of civil remedies for ethical misconduct, such as compensation and blacklisting.

� To recognize the double standards often placed on public officials regarding liability for conduct that is accepted when acting as private citizens.

� To evaluate the ethical dilemmas posed by sex offender notifications laws.

� To distinguish “right versus right” ethical dilemmas.

� To assess the liabilities faced in unethical individual, corporate, and government misconduct.

Everyone’s for ethics until it begins to exact a cost. —Michael Josephson (1998)

120

In 2004, President Bush nominated Bernard Kerik, formercommissioner of the New York City Police Department, tohead the Department of Homeland Security (which oversees immigration and border security among other agencies). It was soon revealed, however, that a nanny that Kerik had employed was in the country as an illegal immigrant and that he had failed to pay taxes on her behalf.

M09_ALBA5659_03_SE_C09.QXD 10/29/10 3:04 PM Page 120

Chapter 9 • Liability 121

It also was reported that Kerik had an ongoing extramarital affair with the editor of his autobiography and had engaged in questionable business dealings as a private citizen.1

Kerik’s case bears a striking resemblance to another that occurred during the 1990s, when President Clinton nominated Zoe Baird for the position of U.S. attorney general. It came to light that she had hired a nanny in her home but failed to pay Social Security taxes for her employee as required by law. Interestingly, a publication called for Baird to withdraw her name (which Baird ultimately did), and an editor of the publication later confided that she also had a nanny for whom she was not paying Social Security taxes, “but her situation was different” because she was not trying to become U.S. attorney general.2 This tortured reasoning illustrates the double standard often placed on public officials. Conduct we often accept from private citizens somehow becomes objectionable when it is done by public officials. It is true that public officials represent others and, therefore, should be worthy of the public trust, but the same can be said of corporate officials who are entrusted with shareholder assets, private attorneys entrusted with their clients’ funds, the automobile mechanic entrusted with your car, and so on for teachers, cooks, construction workers, and virtually all other professions. Ethics by definition involves conduct that affects others, so the public official versus private citizen distinction is misleading. Instead, it is crucial to recognize that all unethical conduct is serious because it affects others whose interests are equally valued as fellow human beings regardless of the social status of the wrongdoer or the victim.

CIVIL REMEDIES FOR ETHICAL MISCONDUCT

The remedies for ethical misconduct can lie outside the criminal law. Civil penalties, which seek compensation rather than punishment, often are used to “correct” wrongful actions. Civil penalties are used because the burden of proof for liability is lower than that for criminal cases (preponderance of evidence versus beyond a reasonable doubt). Also, wronged parties are often more interested in compensation for their losses than in seeing the offender punished.

Macy’s department store paid $600,000 to settle a civil complaint by the New York state attorney general who found that Latino and African American customers suspected of shoplifting were arrested, handcuffed, and detained three to five times more often than white customers—accounting for police arrests of different racial and ethnic groups for theft in the areas surrounding Macy’s stores. Macy’s had a formal company policy banning racial and ethnic profiling, but it was ignored by employees.3 Although the behavior in question was not criminal, Macy’s was civilly liable, and the victims were compensated for their maltreatment. An ethical analysis suggests that the profiling and abuse of targeted groups was probably justified on grounds of utility (deterrence) because neither formalism nor virtue ethics could defend such tactics. Of course, the utilitarian consideration fails to account for the fact that over the long term such a policy would produce complaints, might result in legal liability, and probably would affect both Macy’s reputation and its competitive business. Clearly, the greatest total happiness was not produced by Macy’s actions, illustrating that faulty anticipation of the consequences of a course of conduct can result in unethical conduct and unhappiness for all involved.

Repeat offenders sometimes draw special attention because civil compensation may not have a strong deterrent effect for future violations. For example, New York City engaged in a concerted effort to rid itself of “mob-connected” contractors who were doing business with the city. One of the recommended solutions to the problem was “blacklisting” businesses or individuals who defrauded

M09_ALBA5659_03_SE_C09.QXD 10/29/10 3:04 PM Page 121

122 Chapter 9 • Liability

the city in the past or who executed past contracts in a way that constituted gross negligence.4

Blacklisting is future punishment (by exclusion from participation) for a pattern of past violations. Is this ethical? Should a person or business suffer in the future for past misconduct?

The nature and extent of “punishment” and “compensation” outside the criminal justice system continues to be debated. For example, once an offender has served a prison sentence for a crime, on release should he or she continue to be excluded from certain professions or from voting?

This issue of continuing civil penalties after a criminal sentence has been served has been hotly debated in the case of registering former sex offenders. Public concern reached a crescendo during the 1990s, when a 7-year-old New Jersey girl, Megan Kanka, was raped and murdered by a twice-convicted sex offender who was living across the street. Within 6 months of the incident, New Jersey passed a sex offender notification law, requiring ex–sex offenders to register with police and for communities to be warned when such an offender was living nearby. The law also required offenders to notify police of their location every 90 days with penalties of 7 months in jail and fines if they did not comply. Despite legal challenges, most states followed New Jersey’s lead.

Once an offender has served his or her sentence, it has been argued, the punishment has ended. Sex offender notification laws allow a criminal sentence to continue as long as the offender lives, thereby continuing to “punish” the ex-offender through civil restrictions. Court challenges have gone all the way to the U.S. Supreme Court, which held that it is constitutional to notify a community when a former sex offender lives in its midst or moves into the area.5 The Supreme Court also ruled that judges must hold hearings to determine whether an individual sex offender is subject to the notification law and the extent of the warning to be given to the community, but the impact of this provision is unclear, given that California released a CD-ROM with the locations of 64,000 registered sex offenders, and about half the states now have publicly accessible Internet sites that contain information on individual sex offenders.6

The availability of this information to the public has resulted in instances of vigilante behavior. Four days after one offender’s name was listed, a paroled child molester’s car was fire-bombed; the crime was allegedly carried out by his neighbors.7 A New Jersey man was attacked and beaten by two men who mistakenly believed that he was a child molester.8 Five bullets were shot through the front window of the house of a former sex offender after police had circulated fliers in the area identifying him by name, address, and photograph.9 Notification of the community regarding the release of sex offenders implies that the state has some belief that the ex-offenders may still be dangerous, so it is not surprising that it has produced panic in a number of cases. Even though a small proportion of all offenders are sex offenders, these cases are highly publicized, and public concern is quite high.10 Nevertheless, few incarcerated sex offenders receive treatment, and the treatment they do receive appears to be ineffective in many cases.11

Is it morally permissible to disseminate the location of former sex offenders to the public? From the perspective of virtue ethics, what is the real good being sought? Is liberty or civil peace being served? In addition, are the moral virtues of prudence and justice served by community notification? Formalism requires adherence to both the categorical and practical imperatives. Is community notification a good universal rule, and does it involve using a person for another end? Conclusions are not obvious. The total happiness sought by utilitarianism requires an objective weighing of the potential “costs” (e.g., impeding offender reform, incorrect addresses, possible vigilante behavior by the public) versus the “benefits” (e.g., public knowledge of the location of former sex offenders). The case of sex offender notification makes it clear that a policy found to be constitutional does not automatically mean the policy is also ethical. Determining moral permissibility is distinct from determining legal permissibility.

M09_ALBA5659_03_SE_C09.QXD 10/29/10 3:04 PM Page 122

Chapter 9 • Liability 123

INDIVIDUAL MISCONDUCT

Given that different ethical perspectives can sometimes produce different results, it is sometimes asked, “Isn’t there a general rule to follow in all cases to determine whether my conduct is ethical?” For a test to know whether your conduct is ethical, ask the questions, “Would I want the public to know about this?” and “Would I want this to appear in the newspaper?” Conduct you would not want publicly known is rarely ethical conduct.

In a similar way, Rushworth Kidder, founder of the Institute for Global Ethics, observes that right versus wrong scenarios are usually easy to decide in ethical terms. Stealing versus paying for merchandise is not a difficult ethical question. It is “right versus right” ethical dilemmas that are more difficult. For example, should a first offender be given a warning or arrested? Should a prosecutor file marijuana possession charges against a college student or let the university handle it as an on-campus disciplinary matter? Should you tell your supervisor about a colleague who is drinking on the job? In each of these cases, compelling arguments can be made on both sides. Kidder identifies four types of issues found in “right versus right” ethical dilemmas12:

• Justice versus mercy. Fairness and equity in applying the law sometimes conflict with compassion, empathy, and love.

• Short term versus long term. Immediate needs or desires conflict with future goals or prospects.

• Individual versus community. Conflict occurs in evaluating the positions of self versus others or a smaller group versus the larger group.

• Truth versus loyalty. Honesty or integrity conflicts with commitment, responsibility, or keeping a promise.

Kidder recommends that an ethical dilemma be assessed to determine which of these four conflicts is at issue. Most ethical dilemmas involve one of these conflicts, but some involve more than one. Once the nature of the conflict is identified, and information is gathered about the evidence on both sides, then ethical principles can be applied to assess the moral permissibility of the conduct in question.

For example, the Pennsylvania Supreme Court banned prosecutors from urging jurors to “send a message” with their verdicts. In this case, prosecutors used a strong rhetorical flourish in speaking to the jury of a murder case, saying, “When you think of the death penalty, there are messages to be sent. There is a message on the street saying, ‘Look at that, he got death; you see that, Honey, that’s why you live by the rules, so you don’t end up like that.’ ”13 The court held that such send-a-message exhortations are “particularly prejudicial and should be avoided.” So although prosecutors are expected to make their cases earnestly and with vigor, the court says that statements that go beyond the facts of the case at hand are “deliberate attempts to destroy the objectivity and impartiality” of the jury, whose decision should be based on reflective judgment rather than emotion.14 Using the four-part typology of ethical dilemmas, send-a-message verdicts are of the “individual versus community” type, where the argument to the jury relies on general emotional appeal to community safety versus the individual facts of the case and the defendant at hand. This helps to frame the ethical question: “Is it morally permissible to ask juries to send a message to others in their sentencing deliberations rather than to consider only the facts of the case and the sentence they believe the offender deserves?” Although valid arguments can be made on both sides of this issue (making it a “right versus right” dilemma), application of utility, formalism, and

M09_ALBA5659_03_SE_C09.QXD 10/29/10 3:04 PM Page 123

124 Chapter 9 • Liability

virtue ethics make it clear that the aims of justice, the categorical imperative, and total happiness are more likely to be achieved by focusing solely on the case at hand.

A particularly difficult ethical dilemma exists in the case of assisted suicide. In the 1990s, Dr. Jack Kevorkian claimed to have provided deadly drugs to 130 terminally ill patients. His work has been alternately called “assisted suicide” or “murder.” Many people believe that provision of these drugs allows for “death with dignity.” Others believe Kevorkian is “playing God” and has no right to provide people with the means to hasten their deaths. The application of the criminal law to this kind of behavior is not uniform because not all states include these acts in their definition of homicide. The ethics of assisted suicide are still being debated in evaluating a patient’s right to determine his or her own destiny and the physician’s role in that choice. After a highly publicized, televised assisted suicide in 1999, Jack Kevorkian was convicted of second-degree murder and sentenced to 10–25 years in prison in Michigan.15

Application of the law is complicated in these cases because the physician plays a passive role (does not administer the drug) and because the patient gives his or her consent or self- administers a lethal dose. Nevertheless, consent is not a valid defense to the crimes of assault or homicide because the law generally does not permit people to victimize themselves. As a result, the debate has focused on the role of the physician. The state of Oregon passed a law that permitted physicians to prescribe lethal medicines to terminally ill patients near the ends of their lives. After the first year, only fifteen people ended their lives with lethal medication, although six others obtained the medications but died of their diseases.16 The impact of a law is only one consideration in determining its desirability, of course, as the morality of the action also must be deemed acceptable.

In the case of assisted suicide, there are three types of ethical dilemmas: justice versus mercy (imposing liability on physicians versus mercy deaths of terminally ill patients), short term versus long term (allowing for short-term relief from pain when death is never certain), and individual versus community (permitting individuals to make decisions to end their lives prematurely when such “consent” is not a defense to other consensual offenses and it might promote euthanasia). This issue is evaluated further in Chapter 10 in the landmark case of Vacco v. Quill.

ETHICS CHECKUP Employee E-Mail Surveillance

In one of the largest sexual harassment settlements in U.S. history, a company agreed to pay more than $2 million to settle a lawsuit brought by four women employees who complained of being targets of online sexual harassment. The women found pornographic messages on a computer system and an anonymous sadistic pornographic image through company e-mail. In response to the women’s complaints, the company began monitoring the e-mail of all employees so that anyone engaging in misconduct in the future would be discovered. Surveillance of employees’ Internet and e-mail use can affect employee trust and morale, but employers can reduce the risk of being sued by

informing employees that they cannot expect privacy in either their Internet or e-mail use. Businesses are trying to formulate policies that seek to establish a fair balance between security and trust. Such policies will “actually protect users in their organizations from discrimination, harassment, and embarrass- ment,” said one expert, adding that companies that implement these policies are “looking at the greater good.”17

Using ethical principles, attempt to justify employer monitoring of employee e-mail and Internet use. What is your conclusion?

M09_ALBA5659_03_SE_C09.QXD 10/29/10 3:04 PM Page 124

Chapter 9 • Liability 125

CORPORATE MISCONDUCT

A growing trend in U.S. law is to bring charges against those deemed responsible for the death of others, although those potentially responsible were not present at the scene of the crime. For example, a carnival ride owner was charged with manslaughter when a 15-year-old girl was thrown from a ride into a wall and killed. The lap bar on her seat was not secure. It was the first time a carnival ride owner was held criminally responsible for causing a death as a result of a malfunction- ing ride.18 In years past, cases like this were resolved through civil suits in which the responsible party would pay damages (in the form of money) to the victim or the victim’s family. Criminal charges are now being added as further punishment to the parties found responsible. The ethics of such actions are questionable because the more that liability is removed from the individuals involved in the conduct, the less responsible the principal actors become, thereby reducing individual responsibility (e.g., shifting responsibility from the rider to the ride operator, to the amusement park management, to the state regulatory inspector, to the ride manufacturer). The infamous McDonald’s coffee spilling case of the 1990s is illustrative: A woman won a $2.9 million jury award after she accidentally spilled McDonald’s coffee on herself while riding in a car and was burned.19 The judgment was later significantly reduced in amount, but it has become a symbol for blaming others (especially large corporations or others with deep pockets) for individual accidents or errors. Although it is clear that both ethical and legal responsibility belong to the persons or entities whose actions were most responsible for the outcome, the troubling trend is to look first not to those involved in the incident but instead to those with the greatest financial resources.

Corporations have faced significant ethical issues as a result of both their own conduct and the conduct of others. For example, Royal Caribbean Cruises, the second-largest passenger cruise line in the world, had promoted itself as an environmentally responsible company. It pled guilty to twenty-one felony charges for dumping waste oil and hazardous chemicals at sea and then lying about it to the U.S. Coast Guard. Royal Caribbean admitted it routinely dumped oil from its ships a year earlier, but continued the conduct while under court supervision. The investigation found that some of the company’s ships had no oil-contaminated wastewater, when these ships produce 100,000 gallons of wastewater annually. Hazardous chemicals from photo processing equipment, dry cleaning shops, and printing presses also were dumped at sea, in ports, and in environmentally sensitive areas. The company was fined a record $18 million in addition to $9 million fines it was assessed a year earlier. Federal investigators said Royal Caribbean crew members wore buttons declaring “Save the Waves” at the same time the company was engaged in illegal dumping.20

Corporate codes of ethics have been criticized for being too general and focusing on clearly wrongful conduct, rather than “right versus right” conflicts, where two competing, but legitimate, interests collide.21 A classic case occurred during the 1980s when someone poisoned Tylenol capsules and replaced them on store shelves in the Chicago area. Six people died from these random poisonings. The chair of Johnson & Johnson (the makers of Tylenol) had to make a decision to balance the company’s interests (they warned consumers about checking for compromised seals and packaging) versus the public safety threat of an unknown number of contaminated containers, and the impact of a recall of all Tylenol on store shelves. The company ultimately made the decision to pull all containers of Tylenol from store shelves, valued at $100 million.22 In many ways, this was a defining moment for the company, costing it millions in the short run but gaining public confidence and respect in the company’s products and image. On the other end of the spectrum, the owner of a peanut company was under investigation after some peanuts tested positive for salmonella, yet the owner apparently ordered the product be shipped anyway. The result was a salmonella outbreak resulting in

M09_ALBA5659_03_SE_C09.QXD 10/29/10 3:04 PM Page 125

126 Chapter 9 • Liability

600 illnesses, eight deaths, more than 1,800 products pulled from store shelves, and one of the largest recalls in history. Company e-mails showed that the owner was worried about lost sales.23 Therefore, it is clear that ethics always requires a decision, and it is crucial to know to make ethical decisions when needed.

Lockheed Martin Corporation has an ethics program that has been identified as a model.24

It contains several significant elements:

1. Mandatory ethics awareness training is required of all 130,000 employees each year. This 1-hour training involves scenarios from actual cases.

2. Ethics tools for leaders are provided through a self-directed course required of all management personnel. It includes topics such as creating an ethical environment, responding to ethics complaints, and barriers to communication.

3. The organizational ethics assessment program is designed to evaluate the ethical environment in the company and existing ethical “disconnects.”

4. One-minute video messages on ethics issues are delivered periodically via e-mail to all employees to enhance ethical awareness.

5. A clear, formal reporting process for fraudulent or ethically questionable behavior has been established, and each major unit within the company has a full-time ethics officer.

These five major components of the corporate ethics policy are designed to create a continuously reinforcing ethical environment that reflects well on the corporation’s reputation, on its employees, and in the marketplace—while also reducing exposure to liability.

A leading expert on character education has made nine general recommendations for organizations to help promote a climate that fosters ethical conduct.25 Even though all ethical decisions are ultimately individual ones, organizations can let individuals know how much they value those decisions.

1. Develop a code of ethics, regardless of the size of your company or agency. 2. Create ownership in the code of ethics by asking all levels of employees to participate

in creating the code. 3. Keep the code of ethics alive by making it part of the language and culture of the company

or agency. 4. Make values and ethics an integral part of your interview, orientation, and review procedures. 5. Ensure that ethical leadership starts at the top. Ethics must be a central belief and practice

of management. 6. Institute ongoing training in ethics and values. 7. Institutionalize the notion that ethical dilemma can be reduced through communication,

awareness, discussions, training, and practice. 8. Support character education in the schools. 9. Recognize and reward ethical behavior. Ethical practices do have an impact on the bottom-

line performance of the organization.

These recommendations emphasize the importance of organizations to take responsibility for creating both rules and a climate that values and enforces ethical conduct. For example, the Swiss Bank UBS was publicly embarrassed by charges that it helped wealthy clients evade taxes. The bank was fined $780 million. It has since adopted a new policy, which requires all employees to sign an ethics code to comply with all the laws, rules, and regulations of the countries in which the bank operates and not provide assistance to clients aimed at breaching their financial

M09_ALBA5659_03_SE_C09.QXD 10/29/10 3:04 PM Page 126

Chapter 9 • Liability 127

obligations. All employees must also pass a test demonstrating knowledge of the detailed ethics code.26 When these rules, climate, values, and enforcement are not made explicit, ethical conduct often lapses.

Corporate ethical conduct is also being encouraged through deterrence efforts, such as requiring a company to publish an apology in local newspapers as a part of settlement agreements. In Massachusetts, for example, a local ferry operator was forced to placed an ad in the Boston Herald newspaper, which stated, “[O]ur company has discharged human waste directly into coastal Massachusetts waters,” and that it paid a heavy fine.27 The objective is that such public “shaming” will deter both this company and others from vio- lating the law, although the long-term impact of these kinds of sentences on future corpo- rate conduct is unclear.

GOVERNMENT MISCONDUCT

“Corruption in large-scale public projects is a daunting obstacle to sustainable development and results in a major loss of public funds needed for education, health care, and poverty alleviation, both in developed and developing countries,” according to the chair of Transparency International (TI). TI is a nongovernmental organization dedicated to anticorruption activities. It publishes an annual “Corruption Perceptions Index,” which reports on the extent of corruption in countries by combining a number of surveys and interviews of businesspersons, public officials, and citizens around the world. A perfect score for noncorruption is ten, and according to the 2004 Index, 106 of the 146 countries included scored less than a five. A summary of the scores is presented in Table 9.1.

Sixty countries (more than 40 percent of the total) scored less than three out of ten, suggesting rampant corruption. Corruption is seen as most rampant in Bangladesh, Haiti, Nigeria, Chad, Myanmar, Azerbaijan, and Paraguay, which each has a score of less than two. Countries with low levels of corruption tend to be wealthier industrialized countries distinguished by significant efforts to avoid conflicts of interest among public officials and open media access to public finances.28

Corruption lies at the core of virtually all major governmental problems, and ethical misconduct underlies corruption. Measures to enact and enforce antibribery laws, competitive bidding processes, oversight, and transparency of government agencies are all important measures, but lying underneath them is the need for public officials and a public that demands conduct in the public interest versus self-interest. Overcoming self-interest that lacks just consideration of others is the fundamental domain of ethics.

One common ethical mistake related to corruption involves treating loyalty as a virtue. Misplaced loyalty inhibits reporting of unethical conduct and whistle-blowing on observed governmental misconduct. Loyalty is often a good attribute, but it is not a virtue in itself. When it is treated as a virtue, loyalty can be misguided, leading to protection of illicit conduct of all kinds in the name of “loyalty.” At the U.S. Naval Academy, part of the honor educational program entails a visit to the Holocaust Museum in Washington, D.C. Its purpose is to show the sailors the extreme consequences of misplaced loyalty, blind obedience, and lack of compassion.29

Instances and patterns of governmental misconduct can be addressed systematically by the agency to change the existing culture to one that recruits, values, and rewards ethical conduct. Consider the case of the police department in Chandler, Arizona, which evaluated its operations and training to address the issues of police professionalism and ethical conduct. According to the

M09_ALBA5659_03_SE_C09.QXD 10/29/10 3:04 PM Page 127

128 Chapter 9 • Liability

TABLE 9.1 Countries Ranked by Perceived Corruption

Least Corrupt

1. Finland 9.7 2. New Zealand 9.6 3. Denmark 9.5 4. Iceland 9.5 5. Singapore 9.3 6. Sweden 9.2 7. Switzerland 9.1 8. Norway 8.9 9. Australia 8.8

10. Netherlands 8.7

Most Corrupt

133. Angola 2.0 Congo, Democratic Republic 2.0 Cote d’Ivoire 2.0 Georgia 2.0 Indonesia 2.0 Tajikistan 2.0 Turkmenistan 2.0

140. Azerbaijan 1.9 Paraguay 1.9

142. Chad 1.7 Myanmar 1.7

144. Nigeria 1.6 145. Bangladesh 1.5

Haiti 1.5

Source: Transparency International’s (TI) Corruption Perceptions Index 2004. TI notes “many countries, including some which could be among the most corrupt, are missing because there simply is not enough survey data available.” (www.transparency.org)

assistant city attorney, “The department is trying to develop the highest standard, train its officers and civilian staff according to that standard, and develop the administrative mechanisms to hold every member of the department accountable to it.”30 The five main elements of this program involve increasing ethical conduct by:

1. changing hiring standards, 2. commanding responsibility, 3. developing training programs with ethical components that set the standards, 4. conducting evaluations stressing ethical standards, and 5. providing awards and promotions reinforcing the standards.

A new written-entry test was developed, one-third of which stresses ethics. Ethics is also included as part of the oral interview. The department found that sergeants and lieutenants were not spending enough time in the field, largely because of unfinished paper work. A new goal was estab- lished for all sergeants to spend 85 percent of their time in the field and all lieutenants to spend 75

M09_ALBA5659_03_SE_C09.QXD 10/29/10 3:04 PM Page 128

Chapter 9 • Liability 129

percent of their time in the field with the advent of a wireless report-writing system. The objective is to improve direct supervision and command, thereby reducing exposure to liability for unethical conduct. The department has incorporated ethics components into all its training programs, empha- sizing the morally right things to do instead of the legally right things. Legally appropriate conduct changes regularly with new laws, regulations, and court decisions, whereas morally permissible conduct remains constant. Emphasis on the moral, rather than the legal, is expected to further reduce exposure to liability. The employee evaluation form was revised to include a category that specifically addresses ethical conduct. The overall ethical standard is set forth in a department code of ethics, which applies to all employees, as well as an Oath of Honor, which every officer takes on being commissioned. Finally, the department recognizes that people need positive reinforcement for their good actions, so the department reorganized its awards program to recognize those employees “who behave ethically and those who foster the ethical core in the department.”31

ETHICS IN BOOKS

Ethics is everywhere, even in the books we read, which sometimes are written without ethics specifically in mind. Here is a summary of a book that looks at actions taken in the interest of others, followed by questions that ask you to reflect on the ethical connections.

Do Unto Others: Extraordinary Acts of Ordinary People

Samuel P. Oliner (Westview Press, 2004)

Samuel Oliner is a sociologist, and holocaust survivor, who has written extensively on altruism and why people help others when they can just as easily not do so. His book was inspired by the heroism he saw after the terrorist attacks of September 11, 2001, leading him to a wider inquiry of altruism during the Holocaust, and by both ordinary and notable people throughout history, from moral leaders to military heroes to philanthropists to the heroes of 9/11. The stories he recounts are inspiring and lead him to ask the question, “Why did these people do it, and why is altruistic behavior so common?”

Altruism is derived from the Latin alter, which means “other.” Altruistic behavior is conduct in the interest or for the good of others; the opposite of self-centered desire.

Helping others in time of emergency (e.g., the Holocaust and 9/11) is dangerous, helping others who are seriously ill can be risky, and taking time to help others in general interferes with a person’s individual pursuits. Given these limitations, it is surprising that altruism is so com- mon. Oliner reviewed more than forty empirical studies with a total of more than 6,000 respon- dents on the question of why they volunteered to help others. The most frequently mentioned motivating factors were empathy and compassion, followed by social responsibility, a sense of moral obligation, and spiritual and religious reasons. He also interviewed a large number of hos- pice and nonhospice volunteers about their motivations and found similar results. He found that “altruistic tendencies are learned early in life, so it is never too early to learn the joys of giving or too early to learn that it’s wrong to hurt, it’s wrong to oppress, it’s wrong to neglect and exclude.” The stories his book recounts “demonstrate that goodness is possible and that it doesn’t take any superhuman effort to inculcate in people the desirability of the moral road.”

Oliner concludes with a suggestion to decrease the number of bystanders by celebrating, publicizing, and appreciating the millions of people who are already helping and can serve as

M09_ALBA5659_03_SE_C09.QXD 10/29/10 3:04 PM Page 129

130 Chapter 9 • Liability

role models. He adds that “when people are aroused and are given a good reason for helping, they exhibit courage, helping behavior, devote more time to others, and often leave a moral legacy for future generations.”

QUESTIONS

1. Given the three major ethical perspectives of utilitarianism, formalism, and virtue, do they see altruistic behavior as being morally required of a person?

2. Do you believe that celebrating and publicizing altruistic acts would increase the frequency of this kind of behavior?

ETHICS IN THE MOVIES

Movies seek to entertain and inform the audience about a story, incident, or person. Many good movies also hit upon important ethical themes in making significant decisions that affect the lives of others. Read the movie summary here (and watch the movie if you haven’t already), and answer the questions to make the ethical connections.

Shattered Glass

Billy Ray, Director (2003)

Shattered Glass tells the story of Stephen Glass, who began as a writer for the magazine The New Republic when he was only 23 years old. Glass wrote a number of very dramatic stories, which supposedly reported on actual events. One story he wrote was called “Hack Heaven,” about a 15-year-old computer hacker, hired to work for a large company as a consultant after he broke into its computer system and had exposed its weaknesses. Like his other stories, the account was vivid and read as if Glass was present as the story unfolded.

Soon after this article was published, a Forbes magazine Internet reporter checked the facts in the story carefully and presented evidence that the story was fabricated, and the company described in Glass’s story did not exist. An investigation confirmed this allegation and discovered that Glass created false Web and e-mail accounts for the company to deceive his own editors about the truthfulness of the story.

He was fired from The New Republic for journalistic fraud, and the magazine subsequently determined that at least twenty-seven of forty-one stories written by Stephen Glass for the magazine contained false content. In the movie version of this scandal, Stephen Glass (Hayden Christensen) tells the story of what occurred, and the behavior of a very likable person who apparently was a pathological liar is illustrated.

In 2003, the real Stephen Glass appeared on television’s 60 Minutes to promote his “biographical novel” titled The Fabulist. Glass said on this program, “I wanted them to think I was a good journalist, a good person. I wanted them to love the story so they would love me.” He said that small fabrications and false quotes were used at first to make a story better, and that practice mushroomed until some stories were entirely false. He “wanted every story to be a homerun.” The 60 Minutes interview is included as a special feature added to the DVD edition of Shattered Glass.

M09_ALBA5659_03_SE_C09.QXD 10/29/10 3:04 PM Page 130

Chapter 9 • Liability 131

QUESTIONS

1. This case was an embarrassment for The New Republic, which apologized to its readers, but the fabricated stories were not considered crimes. What specifically makes his actions unethical from the perspectives of virtue, formalism, and utilitarianism?

2. An issue was raised whether he should be suspended for a few months or fired outright as an employee of the magazine. Are there arguments based in ethics that would lead you to recommend suspension versus firing?

Discussion Question

What is questionable about the ethics of shifting liability to corporations and others not involved in the conduct in question (e.g., the McDonald’s case, the carnival ride owner)?

Critical Thinking Exercises

All ethical decisions affect others (by definition) and, as Aristotle points out, ethical decision making is achieved consistently only through practice. Given the outline of virtue ethics, formalism, and utilitarianism, evaluate the moral permissibility of the conduct in question in each scenario.

Important note on method: Critical thinking requires the ability to evaluate viewpoints, facts, and behaviors objectively to assess information or methods of argumentation to establish the true worth or merit of an act or course of conduct. Please evaluate these scenarios, first analyzing pros and cons of alter- nate views, before you come to a conclusion. Do not draw a conclusion first, and then try to find facts to support it—this frequently leads to narrow (and incorrect) thinking.

To properly evaluate the moral permissibility of a course of action using critical thinking skills

1. Begin with an open mind (no preconceptions!), 2. Isolate and evaluate the relevant facts on both sides, 3. Identify the precise moral question to be answered, and 4. Apply ethical principles to the moral question based on

an objective evaluation of the facts, only then drawing a conclusion.

9.1 The Scarlet Driver’s License

A Delaware law features a new version of the scarlet letter. Anyone convicted of a sex crime (including sexual abuse of a child) is immediately issued a new driver’s license with a “Y” stamped on the front. The meaning of the code is explained on the back of the license.

If the ex-offender moves to another state and turns in the Delaware license, that state would be alerted as to the offender’s past conviction. This new law was added to the existing Megan’s law, now passed in virtually every state, that requires convicted sex offenders to register with local police and child welfare agencies so that neighbors can be notified even after the offender’s sentence has been completed.

The sponsor of the new law said, “This additional infor- mation will give police the ability to thwart some sex crimes before they occur.” Simply checking a person’s identification will alert police to a past conviction for a sex crime.

Opponents argue that such a label will interface with an ex-offender’s ability to get a job, cash a check, rent an apart- ment, or do anything that requires picture identification. This will impede efforts of former sex offenders to live law-abiding lives. It also unfairly discriminates against sex offenders versus other kinds of ex-offenders.32

• Assess the moral permissibility of a scarlet letter such as that used in Delaware.

9.2 Paying for Legislative Results?

Many commercial interests hire lobbyists in Washington, D.C., to promote their interests to members of Congress as it considers new legislation, regulations, taxes, and other changes. Media companies are no exception with interests that include cable company regulations and fees, Internet provider access and regulations, broadcast of programs with adult content, film ratings and restrictions, as well as newspapers and magazines.

M09_ALBA5659_03_SE_C09.QXD 10/29/10 3:04 PM Page 131

132 Chapter 9 • Liability

Concern has been expressed about lobbying and political contributions from the media industry because it helps shape public (and political) opinion through newspapers, radio, television, and film. During the late 1990s, for example, Congressman Thomas Bliley (R–VA) chaired the House of Representatives Commerce Committee, which regulates communications. He received more than $81,000 in contributions from media compa- nies. Senator Ernest Hollings (D–SC) was ranking Democrat on the Senate Commerce Committee and received more than $250,000 in contributions from media organizations. Many other senators and congressional representatives also received contributions. The leading contributors were General Electric’s political action committee, the National Cable Television Association, the National Association of Broadcasters, and Time Warner, each of which contributed between $468,000 and $1 million to federal legislators during this period.

Under law, individuals can contribute up to $2,000 to any political candidate, and political action committees can contribute up to $10,000 in each federal election cycle, but there are no limits on contributions to political parties (which may then use the money any way they want— including for the support of individual candidates).33

Media companies lobby for protection in the same way that other industries do. Media companies have sought to protect profitable tobacco ads in newspapers and magazines, to avoid Internet taxes, to gain government allocation of free broadcast spectrum space, to curb cable regulation and taxes, and to avoid giving free airtime to political candidates. The conduct of both the media companies and legislators in giving and receiving contri- butions has been questioned, given the appearance of advancing private gain over public interest.

• Evaluate the moral permissibility of these payments to legislators.

9.3 Would You Do It for $1 Million?

A survey of 2,000 people by Roper/Starch World- wide found that art may be imitating life. Following a scenario from the movie Indecent Proposal (1993), the survey found that 10 percent of respondents would accept an offer of $1 million from a stranger who wanted to sleep with his or her spouse, and 16 percent would seriously consider it.

• What is the strongest argument in favor of the moral permissibility of accepting the money?

• What is the strongest argument against the moral permissibility of accepting the money?

• What is the correct moral course of action in this case, given your assessment of the preceding arguments?

9.4 Bananas and Terrorism

Banana company Chiquita Brands International was charged with allegedly paying Colombian terrorists to protect its banana-growing operations. Prosecutors said the company agreed to pay about $1.7 million between 1997 and 2004 to the United Self-Defense Forces of Colombia (known as AUC for its Spanish initials). The AUC has been responsible for some of the worst massacres in Colombia’s civil conflict and also for a sizable percentage of the country’s cocaine exports. The U.S. government designated the AUC a terrorist group in 2001. In addition to paying the AUC, prosecutors said Chiquita made payments to the National Liberation Army (ELN) and the leftist Revolutionary Armed Forces of Colombia (FARC), as control of the company’s banana- growing geographic area shifted.

Chiquita has said it was forced to make the payments and was acting only to ensure the safety of its workers. From the company’s viewpoint, leftist rebels and far-right paramilitaries have fought viciously over Colombia’s banana-growing region producing many civilian casualties. Most companies in the region, including Chiquita, made extensive security arrangements for the purpose of protecting employees.

But federal prosecutors noted that while Chiquita made $825,000 in illegal payments, the Colombian banana operation earned $49 million and was the company’s most profitable unit. “Funding a terrorist organization can never be treated as a cost of doing business,” U.S. Attorney Jeffrey Taylor said.34 Chiquita sold Banadex, its Colombian subsidiary, in 2004 for $44 million.

• Assume you were CEO of Chiquita from 1997 to 2004 and faced the same situation in Colombia. Assess the moral permissibility of your decisions.

9.5 Psychologist Ethics and Interrogations

Psychologists have played a central role in the military and C.I.A. interrogation of people suspected of being enemy combatants. But the profession, long divided over this role, is considering whether to make any involvement in military interrogations a violation of its code of ethics.

At the American Psychological Association’s annual meeting, prominent members denounced such work as unethical by definition, while other key figures—civilian and military—insist that restricting psychologists’ roles would only make interrogations more likely to harm detainees. Like other professional organizations, the associa- tion has little direct authority to restrict their members’

M09_ALBA5659_03_SE_C09.QXD 10/29/10 3:04 PM Page 132

Chapter 9 • Liability 133

ability to practice. But state licensing boards can suspend or revoke a psychologist’s license, and experts note that these boards often take violations of the association’s ethics code into consideration.

For the first time, lawyers for a detainee at the United States Navy base at Guantanamo Bay, Cuba, singled out a psychologist as a critical player in documents alleging abusive treatment. At the center of the debate are the military’s behav- ioral science consultation teams, made up of psychologists and others who assist in interrogations. Little is known about these units, including the number of psychologists who take part. Defenders of that role insist that the teams are crucial in keeping interrogations safe, effective, and legal. Critics say their primary purpose is to help break detainees, using methods that might violate international law.

The psychological association’s most recent ethics amendments strongly condemn coercive techniques adopted during the Bush administration’s antiterrorism campaign. But its guidelines covering practice conclude that “it is consistent with the A.P.A. ethics code for psychologists to serve in consultative roles to interrogation and information- gathering processes for national-security-related purposes,” as long as they do not participate in any of 19 coercive procedures, including waterboarding, the use of hoods, or any physical assault.

How these guidelines shape behavior during interroga- tions is not well understood. Documents from Guantanamo

made public suggest that at least some of the coercive methods the military has used were derived from a program based on Chinese techniques used in the 1950s that pro- duced false confessions from American prisoners. These techniques included “prolonged constraint,” “’exposure,” and “sleep deprivation,” known informally as the frequent flier program.

According to the standard operating procedure for Camp Delta, at Guantanamo, the “behavior management plan” for new detainees “concentrates on isolating the detainee and fostering dependence of the detainee on his interrogator.” Some psychologists, though appalled by these techniques, emphasize that there is a danger in opting out as well. “There’s no doubt that the psychologist’s presence can be abused,” said Robert Resnick, who is in private practice in Santa Monica, California, “but if there’s no presence at all, then there’s no accountability, and you walk away feel- ing noble and righteous, but you haven’t done a damned thing.”35

Interrogators, too, are split on the question of whether psychologists provide valuable assistance. Some say that their advice can be helpful; others point out that there is no evi- dence that it improves the quality of the information obtained.

• Evaluate the moral permissibility of making psycholo- gist participation in military interrogations a violation of their professional ethical code.

Key Concepts

Double standard 121 Burden of proof for liability 121 Blacklisting 122 Sex offender notification law 122

Test to know whether your conduct is ethical 123

“Right versus right” ethical dilemmas 123

Assisted suicide 124 Transparency International (TI)

127 Loyalty not a virtue 127

Notes

1. Elisabeth Bumiller and Eric Lipton, “Kerik’s Position Was Untenable, Bush Aide Says,” The New York Times (December 12, 2004), p. 1; William Rashbaum and Kevin Flynn, “Beyond the Disclosure of Kerik’s Nanny, More Questions Were Lurking,” The New York Times (December 13, 2004), p. 25.

2. Cited in Stephen L. Carter, “In Defense of Privacy,” in M. Josephson and W. Hanson, Eds., The Power of Character (San Francisco, CA: Jossey-Bass, 1998), p. 213.

3. Andrea Elliott, “Macy’s Settles Complaint of Racial Profiling for $600,000,” The New York Times (January 14, 2005), p. D1.

4. James B. Jacobs and Frank Anechiarico, “Blacklisting Public Contractors as an Anti- Corruption and Racketeering Strategy,” Criminal Justice Ethics, vol. 11 (Summer/Fall 1992), pp. 64–76.

5. Steve Marshall, “Megan’s Law Upheld,” USA Today (July 26, 1995), p. 2; “New Jersey’s Megan’s Law on

M09_ALBA5659_03_SE_C09.QXD 10/29/10 3:04 PM Page 133

134 Chapter 9 • Liability

Sex Offenders Left Intact by Nation’s Highest Court,” The Buffalo News (February 23, 1998), p. 4.

6. Devon B. Adam, Summary of State Sex Offender Registry Dissemination Procedures (Washington, DC: Bureau of Justice Statistics, 1999).

7. Arlyn Tobias Gajilan and Beth Glenn, “Sex-Crime Database,” Newsweek (August 11, 1997), p. 12.

8. Paul Leavitt, “Sexual Predators,” USA Today (August 28, 1993), p. 3.

9. Robert Hanley, “Shots Fired at House of Rapist,” The New York Times (June 17, 1998), p. B1.

10. Peter Finn, Sex Offender Community Notification (Washington, DC: National Institute of Justice, 1997).

11. D. M. Polizzi, D. L. MacKenzie, and L. J. Hickman, “What Works in Adult Sex Offender Treatment? A Review of Prison- and Non-Prison-Based Treatment Programs,” International Journal of Offender Therapy and Comparative Criminology, vol. 43 (September 1999), p. 357.

12. Rushworth M. Kidder, How Good People Make Tough Choices (New York, NY: Simon & Schuster, 1996).

13. Mark Scolforo, “Pennsylvania High Court Bans ‘Message’ Verdicts,” Philadelphia Inquirer (October 23, 2004), p. 1.

14. Scolforo, “Pennsylvania High Court Bans ‘Message’ Verdicts.”

15. Joseph P. Shapiro, “Dr. Death’s Last Dance,” U.S. News & World Report (April 26, 1999), p. 44.

16. Joseph P. Shapiro, “Casting a Cold Eye on ‘Death with Dignity,’ ” U.S. News & World Report (March 11, 1999), p. 56.

17. Rebecca T. Michael, “Online Hate Increasing,” United Press International (May 18, 2004).

18. “Carnival Ride Owner Guilty in Teen’s Death,” apbnews.com (accessed November 21, 2001).

19. Matt Fleischer-Black, “One Lump or Two? The Infamous Coffee-Burn Case Is about to Get a Tenth- Anniversary Rerun,” The American Lawyer, vol. 26 (June 2004).

20. Reuters, “Royal Caribbean to Plead Guilty on Dumping Charges,” The New York Times (July 21, 1999), p. 1.

21. Joseph L. Badaracco, Jr., Defining Moments: When Managers Must Choose between Right and Right (Boston, MA: Harvard Business School Press, 1997), pp. 28–30.

22. Badaracco, Defining Moments: When Managers Must Choose between Right and Right, pp. 85–86.

23. Julie Schmit, “Broken System Hid Peanut Plant’s Risks: Case Reveals Every Link in Food Safety Chain Failed,” USA Today (April 27, 2009), p. 1B; Ricardo Alonso-Zaldivar and Brett J. Blackledge, “Peanut Company Owner Urged Shipping Tainted Products,” Associated Press (February 11, 2009).

24. “Profile of a ‘Walk-the-Talk’ Corporate Ethics Program,” White-Collar Crime Fighter, vol. 7 (January 2005), pp. 1–3.

25. B. David Brooks, “The Bottom Line on Character,” in M. Josephson and W. Hanson, Eds., The Power of Character (San Francisco, CA: Jossey-Bass, 1998), pp. 168–169.

26. Carl Hausman, “Scandal-Stung Swiss Bank UBS to Require All Employees to Sign Ethic Code,” www. globalethics.org (January 19, 2010).

27. Tovia Smith, “Companies ‘Names and Shamed’ for Bad Behavior,” National Public Radio. www.npr.org (March 7, 2010); see also Janet Romaker, “Fashion Police: Judge Tailors Punishment that Fits Criminals to a T,” The Toledo Blade (September 7, 2009).

28. Transparency International, Global Corruption Report, www.tranparency.org (2004) (accessed March 1, 2005).

29. Charles R. Larson, “Training Leaders,” in M. Josephson and W. Hanson, Eds., The Power of Character (San Francisco, CA: Jossey-Bass, 1998), p. 176.

30. Michale McNeff, “One Agency’s Effort to Reduce Liability Risk through Emphasis on Ethics.” www.theiacp.org/documents/index.cfm?fuseaction= document&document_type_id=1&document_ id=13 (accessed October 24, 2004).

31. McNeff, “One Agency’s Effort to Reduce Liability Risk through Emphasis on Ethics.”

32. Kelly McMurry, “Delaware Label Drivers’ Licenses of Sex Offenders,” Trial, vol. 34 (July 1998), p. 116; Stephen P. Garvey, “Can Shaming Punishments Educate?” University of Chicago Law Review, vol. 65 (Summer 1998), pp. 733–794; James Q. Whitman, “What Is Wrong with Inflicting Shame Sanctions?” Yale Law Journal, vol. 107 (January 1998), pp. 1055–1092.

33. Sheila Kaplan, “Payments to the Powerful,” Columbia Journalism Review (September–October 1998), p. 118.

34. Matt Apuzzo, “Chiquita Pleads Guilty in Terrorism Probe,” The Associated Press (March 19, 2007).

35. Benedict Carey, “Psychologists Clash on Aiding Interrogations,” The New York Times (August 16, 2008), p. 1.

M09_ALBA5659_03_SE_C09.QXD 10/29/10 3:04 PM Page 134