This article is based upon the author’s study of what appears to be a very fine ethics program in one of the nation’s biggest private sector companies. The author was given unprecedented access to all aspects of this program, including being able to interview whistleblowers, targets of investigation and investigators. The issues dealt with in this article surfaced as a result of this field study. The focus of this article is on justice as it relates to various aspects of this ethics program. That is, are people treated in a manner that is “fair” and “just”? The purpose of this article is to raise consciousness and to stimulate thought and discussion about the slippery concept of justice in ethics programs, especially as found in how investigations are conducted and sanctions administered.
Investigations and Justice
Two questions are critical in the area of investigations and justice, who should conduct the investigation and how should it be done? With respect to the first part, the answer about “who” probably depends upon the “what,” i.e. the nature of the allegation will suggest who is in the best position to carry out the investigation. It might be someone in human resources, the legal department, a subject matter expert, or perhaps the internal audit department. If there is an ethics administrator, he or she may do the initial investigation, pulling in expert help as needed. If criminal behavior is involved, the police will need to be included. If a company is working with the government, at some point the investigators may want and need to turn an investigation over to a government agency such as the Department of Justice. In general, the principle should be to have the investigation done by the person or persons who are the best equipped to handle the particular allegation so as to ensure that the alleged perpetrator is dealt with fairly by knowledgeable personnel.
Next, does the end goal of rooting out corrupt behavior justify any investigative means? Obviously, the answer to this question is no, but who decides what means are acceptable? Those who investigate alleged ethical violations have rarely been trained for these endeavors, though, someone from security or internal audit might have some training. It is quite easy for investigators to get carried away in the excitement of an investigation, resorting to means that under normal conditions they might not employ.
Companies may need a way of authorizing unusual means in special circumstances, comparable to getting a search warrant in a criminal case. Clearly, investigators should not use unethical means as a modus operandi. For example, the company in this study had an investigator use a hidden camera with a microphone in a restroom to gather evidence. This was inappropriate, and perhaps illegal, because of the infringement on innocent persons’ privacy. Similarly, in another situation an investigator used binoculars from a distance to spy upon one who had been accused of literally sleeping on the job. In this case only one person’s privacy would be invaded, but one can still question even this action. It would be safest to have authorization for questionable means placed in the hands of a committee rather than a single individual. Just as questions about justice in conducting investigations are important, so are questions arising from how sanctions are administered.
Sanctions and Justice
First, who should administer any necessary sanctions? Most would probably agree that one’s management should administer the sanction, though some might argue that a staff person from human resources should do it or if there is an ethics administrator, perhaps that person should do it. Yet, if a staff person does it, it would appear necessary to inform the employee’s management. Perhaps the real question is, how many levels of management need to know about the sanction? Making a hard and fast rule is difficult. The more serious the violation, the more likely it is that many levels of management should or will know. Minor violations, to be fair, should be contained to the fewest number who have a need to know. It would not seem just to penalize heavily one whose violation is somewhat minor, thus placing his or her reputation and career in jeopardy. Treating minor ethical violations much like any other minor disciplinary problem might be a good principle to follow.
Second, when it comes to sanctions to be imposed for violations of an ethics program, what criteria are fair and just? Is it fair to consider such criteria as age, seniority, need, productivity, past behavior, and potential for future contribution? A blanket concept of justice that refuses to take any criteria into consideration may not be just; yet, a case-by-case approach may not be just either. Most do not believe that a blanket application can be just precisely because it does not consider any extenuating circumstances.
Many companies consider longevity with the company in handing out sanctions. One who has been with a firm for many years is likely to be treated less severely than one who has not. Surely having a clean record as an employee for 20 years earns one some special consideration when considering a sanction for an ethical violation. Are other criteria that different in nature from longevity? I suspect not. Obviously, the severity of the ethical violation plays a big part, but assuming comparable violations, is the just action always to apply sanctions in an evenhanded way? If a company reprimands an executive and fires an hourly employee for the same violation, justice does not seem well served; thus, case-by-case applications equally present problems because of the possibility of favoritism.
In his classic, A Theory of Justice,[1] the well-known ethicist John Rawls allows for the possibility of favoring an extremely valuable contributor in a firm with what he calls the “difference principle.” Essentially, he says that there could be a legitimate way of treating people differently if it worked to the real benefit of the least advantaged person. One could argue that saving a “genius” for a company by “going easier” on him or her with a sanction could benefit the least advantaged worker by ensuring the survival and prosperity of the firm.
Issues of justice always pertain to fairness. Most believe that it is fair to consider some of the above criteria; past and potential contribution would seem to be appropriate as well as other criteria such as seniority and past behavior. Human wisdom and judgment must be exercised; this fact is what makes ethical decisions tough. Employees and society ultimately judge an organization by its attempts to act justly. Rawls’ well known dictum says, “Justice is the first virtue of social institutions as truth is the first virtue of systems of thought.” Perhaps the very fact that some organizations are struggling with what is the just thing to do in handling ethical cases is a sign of progress; when there is no struggle, one should be really worried.
Third, who should be involved in making the final decision about an appropriate sanction? Surely it should be more than a single person. The necessity of consulting with various functions such as human resources or legal counsel would seem obvious, although in many cases the privacy of the individual should be protected so as to minimize a person’s exposure to those who do not have to know the identity of the violator.
Advice about appropriate sanctions can be given without knowing the violator’s identity. Most companies probably are wise in having a committee make or at least review the final decision. It is rather common for a major sanction such as termination to be reviewed at very high levels of management for employees with many years of service. The company where this field study was done requires an executive committee to approve any termination of an employee with fifteen or more years of service.
Fourth, should there be additional penalties beyond sanctions? If one is given a sanction for an ethics violation (for example, a suspension without pay for three days), is it right for the supervisor to hold back on a planned pay increase or in some way add on penalties? Does doing so create a situation of double jeopardy where one is penalized twice for the same “crime”? Yet, is it really avoidable? Think about it. Is a supervisor very likely to proceed with a promotion to someone who just received an ethics sanction? I suspect not. It may not seem entirely fair, but the reality is that misbehavior inevitably carries with it a heavy burden.
Finally, what kind of and how much publicity should there be in an ethics program? Should companies publish periodically the number and nature of the sanctions? Probably some kind of publicity is desirable if for no other purpose than to educate the workforce. Additionally, a company should seek to encourage ethical behavior and to be very clear to employees that unethical behavior will be punished. The tone of the publicity is critical: if it is negative, it might suggest that a spying and finking system is necessary to thwart corrupt employees; if it is more positive, it could encourage people to seek advice and take the moral “upper road” in decisions while showing that unethical behavior will not be tolerated. This is a delicate matter, requiring sensitivity and common sense; yet, the inherent sensitive nature of the publicity should not cause one to forego all information about an ethics program. Employees need to know how to access the ethics program, but they also need to know that the program is working.
Conclusion
The kinds of issues raised relating to how investigations are conducted and sanctions are administered are intended to stimulate further questions and dialogue. Companies that have ethics programs are to be commended, but these companies must keep struggling with the inevitable issues that arise in the administration of these programs. It is not surprising that ethical questions are raised by ethics programs; however, it is vital that ethics administrators continue to be concerned about the ethical practices of their ethics programs and seek appropriate safeguards and remedies. To do otherwise is to lose credibility and effectiveness as well as risk being guilty of unethical behavior.
Being concerned about and attempting to address the issues raised herein is important if companies are to have effective ethics programs. A critical factor in employees’ views of the effectiveness of any ethics program is their perception of the fairness of the overall program including how investigations are undertaken and sanctions are handled.[2] A perception of a culture permeated by a concern for justice (fairness) is vital for employees if they are to have any faith in an ethics program. What follows is a checklist of guidelines for concerns that may arise in an ethics program.
A Practical Checklist for Businesspersons
Does your ethics program have guidelines for the following questions?
I. Who should investigate allegations of unethical conduct?
II. What types of investigative methods are off limits?
A. Illegal means
B. Personally invasive means
C. Unethical means in general (two wrongs don’t make a right)
III. Who should be involved in deciding appropriate sanctions?
A. Appropriate levels of management
B. Human resources
C. Legal department
IV. Which criteria are fair to use in imposing sanctions?
A. Fair criteria might include the following:
1. Seniority
2. Productivity
3. Past behavior (no problems)
4. Potential for future contributions
B. Unfair criteria might include the following:
1. Age (a termination sanction would have to be based on a major problem to avoid an age discrimination charge)
2. Likability
3. Friendship
4. A relative of an important person in the organization
V. Who should administer any sanctions?
A. For serious unethical conduct of long-term employees: a top level committee
B. For serious unethical conduct of short-term employees: lowest level of management with HR/Legal concurrence
C. For less serious issues: lowest level of management with consent of HR/Legal departments.
VI. Can there be additional management-imposed penalties?
Probably not: Be careful not “to pile” on
VII. What kind of, and how much publicity do you desire?
Just enough to inform employees that the system is working, but not so much as to break confidentiality anywhere in the system
VIII. Do you have a means for determining if employees consider your program to be run fairly?
A. Interviews
B. Questionnaires
Additional References
Ethics Resource Center. “2011 National Business Ethics Survey: Workplace Ethics in Transition.” Accessed June 19, 2012. www.ethics.org.
Yates, Jere E., “The Ethics of Ethics Programs,” Proceedings of The National Conference on Ethics in America, March 9-11, 1994, Long Beach, California.
[1] Rawls, John. A Theory of Justice. (Cambridge: Harvard University Press, 1971).
[2] Trevino, L K., G. Weaver, D. Gibson, and B. Toffler. “Managing Ethics and Legal Compliance: What works and what hurts.” California Management Review, 41, no. 2 (1999): 131-151.
