This article is based upon the author’s in-depth study of what appears to be a very fine ethics program at a major Fortune 500 company. As part of this research, the author was given unprecedented access to directors of the program, investigators, and even, on the one hand, whistleblowers, and on the other, targets of investigations. The article will focus on two concerns: 1) ethical issues raised by whistleblowing, and 2) addressing the ethical issues when an individual has become the target of an ethics investigation. The purpose in each case is to raise consciousness and to stimulate thought and further discussion; opinions may be expressed to stimulate thought, but are not intended to be prescriptive.
How ironic that ethics programs themselves raise unique ethical questions! But ignoring these ethical issues can only lead to undermining the good that ethics programs are designed to do.
The Ethics of Whistleblowing
Most serious ethics programs have some system by which employees may notify an ethics administrator or other corporate official of alleged impropriety. Usually, this notification is by email or telephone hotline with, at a minimum, the promise of confidentiality and often the possibility or assurance of anonymity. But the mere existence of a hotline raises numerous concerns.
Concern #1 – Being a Fink
An immediate problem in an organization is that any system of whistleblowing goes against the strongly held American value of not being a “fink.” From an early age children learn the dire consequences of being called a “tattletale.” The question arises, how can we get people to blow the whistle on someone when they should?
The answer, undoubtedly, is education. Employees need to be educated to realize that ethics violators hurt everyone and in extreme cases could even threaten the financial viability of the company. Employees also need to understand that under certain circumstances, blowing the whistle may be the right thing to do, and not doing so would be wrong because it could lead to injury to the group. To help educate, it might be useful to explore why employees are reluctant to inform on wrongdoers.
- Is it because they fear social ostracism?
- Do they value uninvolvement over involvement because they are lazy or indifferent?
- Is there a loyalty issue? To whom?
In ethics training, discussing feelings could help employees see more clearly some reasons why in some circumstances whistleblowing can be the right action. Encouraging employees to explore under what conditions they would believe it is morally right to blow the whistle in the abstract could lead to a more informed group of employees who could act responsibly in their use of a hotline in the appropriate case.
Another approach to supplement this type of education would be to educate employees to use the hotline to seek advice. Programs that have been in existence for several years, over time almost always see the number of calls on the hotline go from approximately two-thirds being allegations of wrongdoing to two-thirds being advice-seeking as employees realize they can use the hotline as a resource. As employees seek advice regarding the legitimacy of their own behavior and that of others, one can be assured that the ethics program of the company is maturing.[1]
Concern #2 – Confidentiality
Hotlines are not viable unless confidentiality is perceived to be assured, yet is it really possible to make such assurances because of the inherent difficulty of doing so? Some companies simply say that they will do their best to preserve confidentiality and inform the whistleblower that a court could force them to reveal the whistleblower’s identity. Having so informed the informant the company feels morally (and legally) free to reveal its source if legally required to do so.
Additionally, given the nature of the investigation that will undoubtedly be conducted, will it be possible to keep hidden the identity of the informer? Questions also arise concerning records. Where are they kept? Who has access to them and under what conditions? Records raise difficult issues because they would also pertain to the object of an investigation. Protecting an innocent person would appear as important as protecting the identity of a whistleblower.
Concern #3 – Protection from Reprisals.
Is it really possible to protect the whistleblower from reprisals? The “2011 National Business Ethics Survey” of the Ethics Resource Center indicates that retaliation against whistleblowers is actually on the rise.[2] In a formal sense it is probably possible to guard against reprisals by monitoring pay increases, promotions, organizational climate surveys, and complaints related to the whistleblower. Yet, one might well suspect that such action would be ex post facto at best—not preventative. The far more difficult problem is preventing and dealing with informal reprisals such as social ostracism, looks, and comments. Here again, the problem is that no one likes a “fink”; the only viable approach is education, and in this area it is likely to be an imperfect solution at best. Strong and decisive action against those who inflict reprisals may also help.
Concern #4 – Frivolous Complaints
There is always the possibility of frivolous or malicious complaints, which may be designed to pervert the purpose of the company’s investigatory process. Is there any protection from such complaints? The best protection may come from quickly finding that there is no case and formally closing the investigation. To fail to investigate an allegation just because someone believes it to be unfounded could very well undermine confidence in an ethics program. Perhaps the recipient of the call could attempt to educate the caller if there is a suspicion about the validity of the allegation; to inform the person’s management (if the caller identifies himself or herself) would constitute a reprisal.
Yet there is a problem in that an ethics program can be seen as giving dangerous power to malcontents and encouraging reckless participation. In a way the caller gets rewarded by the fact that the system pays attention. To counter this problem, most companies have a rule which prohibits employees from making false and malicious statements about other employees. Still, the hotline might constitute an exception to the rule in order to make sure employees are forthcoming. One might argue that a first offense should be exempt from any repercussions, but not a second one, if the hotline has been contacted.
Concern #5 – Motive
Is the motive of the whistleblower pertinent? Frequently that which is reported on the hotline has been going on for some time, but there is a trigger that causes the person to report it now. A common trigger is a recent adverse management decision affecting the complaining employee. Still, experience has demonstrated that the motive of the informer is not that pertinent or cannot be considered so if there is to be a very creditable ethics program. Besides, motives are rarely singularly pure, but rather mixed. The focus should be on the validity of the allegation—not the motives of the one making the allegation – in order to cast the widest possible net.
Concern #6 – Revealing the Outcome
Should the whistleblower know the result of the investigation? Most programs allow the caller to check back and hear the result in a general way. For example, the caller might be told either, “We investigated and found a violation and an appropriate sanction has been given,” or “We investigated and did not find any violation and thus the case has been closed.” If the caller requested confidentiality and also requested knowledge of the results, he or she might be given a case number to check on. One might well question the ethics of getting too specific with the details of any sanction. The main point should be that action was taken if it was warranted. Research shows that regular communication with employees about a company’s responsiveness makes it more likely that misconduct will be reported.[3]
The Target of the Ethics Investigation
Four major questions arise regarding the object of an investigation.
1. First, is it possible to reliably assume and maintain the innocence of the target until the investigation is complete?
There appears to be something that causes people who conduct the investigation to believe, or at least communicate the feeling, that the object is guilty until proven innocent. Perhaps, it is the very word, “ethics,” that causes this condition. Most targets will tell you they felt that investigators were questioning their innocence, not their guilt; in other words, investigators assume guilt, not innocence. Targets wonder why such instant and high credibility is given to the whistleblower simply because an allegation has been made.
One can argue that managers, as opposed to non-managers, who are targets must accept such assumptions as a part of the territory of being in management. Managers might not agree, but even if they did, what about non-management targets? Did they give up their right to be presumed innocent until proven guilty when they accepted employment? One would doubt this to be the case. The presumption of guilt goes against the grain of a supposedly strongly held American value (innocent until proven guilty). Training programs should help investigators maintain an open mind until their work is completed, as experience has shown this is difficult to do. Furthermore, good management theory would suggest that targets should be treated with respect, dignity, and support until a case is clearly proven against them.
2. At what point in an investigation should the target be notified that he or she is indeed a target of an ethics investigation?
Most targets appear to want to know right away, but some investigators argue that it is best to discreetly check on the facts to verify whether or not a full scale investigation is necessary. If the facts do not check out, the case is closed and the target has never been disturbed. In such cases is it in a person’s best interest not to know, or does the company even have the moral right to decide in such matters what is in a person’s best interests? Targets often point out that they could have cleared matters up quickly had they known there was an allegation against them. How does the above approach square with the normative right that one should be able to face his or her accuser or at the very least to hear the accusation? Of course, facing one’s accuser or perhaps even knowing the allegation itself could jeopardize the promised confidentiality. Here we have a clash of two powerful values.
More questions can be raised. Can a company be held legally liable for not informing a target that he or she is a target? At what point does it become legally and/or morally compelling to do so? If the company investigator brings the company attorney to interview the target, can the results of an interview be used in court? Is it morally right to use information no matter what means were used? Few would maintain that any means were justified by the end. Do such things as constitutional and due process rights have a place here? Most would think so. Raising these types of questions suggests the scope and magnitude of relevant questions in this area. To be sure, most of these questions are not easily answered, but they need discussion.
3. At what point, if any, should an employee’s management be notified of an ethics investigation?
Some are concerned that if management is notified quite early in an investigation that management will have the opportunity to cover up any involvement that it may have with the allegation. Frequently, management itself may have contributed to an unethical action, perhaps even by the climate and tone that are set. Each case might be different, but it would appear that management should be notified only when it is clear that they are not likely to have been connected with the alleged ethics violations. Certainly, management should be brought in toward the conclusion of the case and be involved in any disciplinary action.
4. What is the impact on work and employees’ morale as a result of one of their own being investigated?
There have been instances where employees became very upset with a company when one of their trusted managers, peers, or subordinates was the object of an investigation that they thought was not justified. This is especially true when they believe that a disgruntled, unproductive person made an unjust allegation and the company responds to the complaint of such a person, thereby putting an innocent person through mental anguish. Resentment toward the company can run deep in such situations. Yet, one can raise the question, what if warranted complaints are not investigated because too many barriers are raised? Would not employees resent that as well? How can an ethics administrator know what is a valid complaint and what is not? The integrity of the ethics program would seem to demand investigations of all complaints. Probably a part of the solution to this problem resides in improving the quality of the investigatory process. Thus, again both education of the company as a whole, and specific training of the investigators, appear vital.
Conclusion
The fact that ethics programs have their own interesting set of ethical questions demonstrates the dichotomies that are raised when a company’s culture is challenged. Examining just two of the areas amply illustrates this irony and the depth of the issues created. Businesses are to be commended for having taking the courageous and costly step of establishing substantive ethics programs. The next step, however, is to examine carefully the kinds of issues that have been identified above and take appropriate measures to ensure that ethics programs themselves are as concerned about their own ethics as well as of those they seek to influence. Knowing what these appropriate measures are will only come as a result of meaningful dialogue. Many companies do periodic audits of their ethics programs. Addressing the questions raised herein and attempting to answer them as a part of that audit would strengthen these programs and ultimately contribute to a culture that encourages ethical behavior, which is what makes ethics programs most effective.[4]
Additional References
Ethics Resource Center. “Blowing the Whistle on Workplace Misconduct.” Accessed June 5, 2012, from www.ethics.org.
Hsu, Tiffany. “Whistleblowers Face Most Corporate Retaliation Ever in 2011.” Los Angeles Times, January 6, 2012.
Josephson, Michael. “Elements of an Exemplary Corporate Ethics Program—Check-the-Box Compliance Programs Won’t Meet New Federal Standards.” The Josephson Institute Center for Business Ethics. Accessed May 24, 2012.
Maassarani, Tarek, and Tom Devine. “Corporate Whistleblowers Gain Legal Rights, But Remain a Wasted Asset.” Huffington Post. Accessed April 12, 2012, from www.huffingtonpost.com/tarek-maassarani/corporate-whistleblowers.
Rubenfeld, Samuel. “Fight Night on the Whistleblower Panel.” The Wall Street Journal, March 28, 2012.
[1] Ethics Resource Center. “2011 National Business Ethics Survey: Workplace Ethics in Transition.” Pg. 34. Accessed June 5, 2012, from www.ethics.org/nbes.
[2] Ethics Resource Center. “2011 National Business Ethics Survey: Workplace Ethics in Transition.” Pg. 16. Accessed June 5, 2012, from www.ethics.org/nbes.
[3] Ibid., 52.
[4] Ibid., 34-35.
