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Ethical Decision Making: Employer Responsibilities and Employee Rights We can invest all the money on Wall Street in new technologies, but we can’t realize the benefits of improved productivity until companies rediscover the value of human loyalty.

Frederick Reichheld , Director, Bain & Co.

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188 Chapter 6 Ethical Decision Making: Employer Responsibilities and Employee Rights Opening Decision Point Abercrombie & Fitch:

Image Consciousness?

In 2003, clothing retailer Abercrombie & Fitch (A&F) was sued by current and past members of its sales force, as well as people who were denied jobs, claiming racial discrimination. The plaintiffs, in a class action lawsuit that grew to include 10,000 claimants, alleged that A&F favored whites in a variety of ways in order to project an image of the “classic American” look. This theme evolved from A&F’s origins as the store that clothed both Theodore Roosevelt and Ernest Hemingway. Plaintiffs alleged that people of color were discouraged from applying for positions visible to the public and were instead steered to stockroom jobs. Managers were aware that they were going to be judged on whether their workforce fit the A&F image.

The suit was eventually settled in 2005 for $40 million (you’ll find the details in the resolution at the end of this chapter), providing at least some evidence of a lack of diversity in the retailer’s operation.

You might find this lack of diversity relevant as you consider some decisions A&F made in 2002, before the lawsuit was filed. A&F opted to produce a line of T-shirts designed to poke fun at particular ethnic groups. One of the shirts advertised the Wong Brothers Laundry Service and had images of two smiling men with bamboo rice-paddy hats, along with a motto, “Two Wongs Can Make it White.”

Other shirts contained the following statements:

“Pizza Dojo: Eat in or wok out. You love long time.” “Wok-n-Bowl: Chinese food and bowl.” “Buddha Bash: Get your Buddha on the floor.”

Images of the shirts can be viewed at http://www.sfgate.com/cgi-bin/object/ article?f�/c/a/2002/04/18/MN109646.DTL&o�0 or at http://www.geocities. com/tarorg/shirts.html.

After protests from Asian-American groups, among others, and negative mail, company spokesman Hampton Carney responded, “We thought everyone would like these T-shirts. We’re very, very, very sorry. It’s never been our intention to offend anyone. The thought was that everyone would love them, especially the Asian community. We thought they were cheeky, irreverent and funny and everyone would love them. But that has not been the case.”

Do you see a connection between the subject of the lawsuit discussed above and the choices made for the T-shirt line? Do you feel that Abercrombie & Fitch did anything wrong in choosing to sell these T-shirts that would justify the protests and negative attention? What are the key facts relevant to your determination? What are the ethical issues involved in your decision? Who are the stakeholders in this scenario? Are the stakeholders’ rights abridged? In what way? Even if you answer no to the first question above, evidently certain stakeholders believed that Abercrombie & Fitch acted inappropriately. Other than not selling the shirts at all, is there any other way to have prevented this from happening in the first place? What alternatives were originally available to the retailer? How would each of these new alternatives have affected each of the stakehold- ers you have identified?

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Chapter Objectives After reading this chapter, you will be able to:

1. Discuss the two distinct perspectives on the ethics of workplace relationships.

2. Explain the concept of due process in the workplace.

3. Define “employment at will” (EAW) and its ethical rationale.

4. Describe the costs of an EAW environment.

5. Explain how due process relates to performance appraisals.

6. Discuss whether it is possible to downsize in an ethical manner.

7. Explain the difference between intrinsic and instrumental value in terms of health and safety.

8. Describe the “acceptable risk” approach to health and safety in the workplace.

9. Describe the nature of an employer’s responsibility with regard to employee health and safety and why the market is not the most effective arbiter of this responsibility.

10. Explain the basic arguments for and against regulation of the global labor environment.

11. Describe the argument for a market-based resolution to workplace discrimination.

12. Define diversity as it applies to the workplace.

13. Explain the benefits and challenges of diversity for the workplace.

14. Define affirmative action and explain the three ways in which affirmative action may be legally permissible.

15. Articulate the basic guidelines for affirmative action programs.

Introduction

Ethics in the employment context is perhaps the most universal topic in busi- ness ethics since nearly every person will have the experience of being employed. While legislators and the courts have addressed many aspects of the working envi- ronment, countless ethical issues remain that these regulatory and judicial bodies have left unresolved. The law provides guidance for thinking about ethical issues in the workplace, but such issues go well beyond legal considerations.

This chapter explores those areas of ethical decision making in the workplace where the law remains relatively fluid and where answers are not easily found by

As it moves forward from this point, what alternatives now exist for Abercrom- bie & Fitch to heal relationships with its stakeholders? What recommendations would you offer to Abercrombie & Fitch?

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simply calling the company lawyer. Issues may also arise where the law does seem clear but, for one reason or another, it is insufficient to protect the interests of all stakeholders. We will examine various ethical challenges that face the employee, whether a worker on an assembly line, the manager of a restaurant, or the CEO of a large corporation, and the nature of employer responsibilities. While individual perspectives may change, similar conflicts and stakeholders present themselves across business settings.

As you examine each issue raised in this chapter, consider how you might employ the ethical decision-making process we have discussed to reach the best possible conclusion for the stakeholders involved. Severe time constraints, lim- ited information, and pressure usually accompany these challenging business decisions. However, though using the ethical decision-making process may seem cumbersome at the outset, once the process becomes embedded in the profes- sional landscape and culture, its effectiveness and efficiency in resolving these issues will become apparent. In fact, utilizing an ethical decision-making process will avoid later hurdles, thus removing barriers to progress and momentum. Let us consider the issues that exist in the current workplace environment to test the effectiveness of the ethical decision-making process.

Ethical Issues in the Workplace: The Current Environment

We all have decisions to make about how we will treat others in the workplace and how we will ask to be treated. Ethics at work and in human resource manage- ment is about our relationships with others and with our organizations. Research demonstrates that “companies that place employees at the core of their strategies produce higher long-term returns to shareholders than do industry peers.” 1

The same holds true for interpersonal relationships. Notwithstanding these truths, less than half of U.S. workers feel a strong personal attachment to their organization or believe that the organization deserves their loyalty. Only one in four workers is truly loyal to their place of work. When asked about the greatest influence on their commitment, workers responded that the most important factor is fairness at work, followed by care and concern for employees—all key compo- nents of an ethical working environment.

In 1960, about one-third of the American workforce was represented by unions. Today, that fi gure is about 11 percent. Collective bargaining, established to protect the interests of workers, has led to some disappointments. Not surprisingly, federal and state regulations governing work practices have

exploded as union membership has declined. The variety of protections is prodigious: anti- discrimination laws, wage and hour laws, worker safety laws, unemployment compensation, workers’ compensation, and social security, to name a few.

Reality Check Protecting Employee Rights through Unions

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These observations call attention to the fact that there are two very distinct, and sometimes competing, perspectives on the ethics of workplace relationships. On one hand, employers might decide to treat employees well as a means to produce greater workplace harmony and productivity. (This consequentialist approach could be reminiscent of the utilitarian ethics discussed in Chapter 3 if couched in terms of the creation of a better workplace for all, though it also raises a question about moral motivation and instrumentalist, self-interested reasons for doing good that is similar to our discussion of corporate social responsibility in Chapter 5.) A comprehensive review of research by Jeffrey Pfeffer suggests that effective firms are characterized by a set of common practices, all of which involve treating employees in humane and respectful ways. 2

As an example of these concerns, consider the role of emotion in the work- place. Though it is a relatively new area of research, studies suggest that managers can have a significant impact on the emotions of their workers, and this impact can greatly affect productivity and loyalty, as well as perceptions of fairness, care, and concern. Scholars Neal Ashkanasy and Catherine Daus suggest that managers should pay attention to the emotional impact of various jobs within their work- place and model a positive emotional environment. 3

Rewards and compensation structures can clearly impact the emotions of workers, as can the composition of teams or the power relationships within a workplace. Consider how Sears explored emotions in its workplace in the Reality Check on this page.

When employees see that a firm values their emotions, as well as exhibits val- ues such as honesty, respect, and trust, they feel less pressure, more valued as employees, and more satisfied with their organizations. Since reporting to external stakeholders has become such a key issue in recent scandals, one might also want to consider whether a more satisfied employee is more or less likely to report mis- conduct to outside parties.

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Sears put the role of emotion in the workplace to the test when it asked its workers what is important to them. This is a sensitive question because, if a firm asks and then does not respond to those areas of importance, it is effectively ignoring the priorities of its workers. Sears did ask, though, and learned a great deal. The most important job factors to Sears employees include these:

Whether they like their work.

Whether their work gives them a sense of accomplishment.

Whether they are proud to say they work at Sears.

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Their workload.

Their working conditions.

Their treatment by supervisors.

Their optimism about the future of the company.

Whether they feel Sears is competing effectively.

Whether they understand the company’s busi- ness strategy.

Whether they see a connection between their work and the company’s objectives.

Source: Workforce Online, “What’s Most Important to Employees,” http://workforceonline.com/sears/attitude. html (1999).

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Reality Check Sears and Emotions

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On the other hand, of course, employers might treat employees well out of a Kantian sense of duty and rights, regardless of the either utilitarian or self-interested productivity consequences. This deontological approach emphasizes the rights and duties of all employees, and treating employees well simply because “it is the right thing to do.” Defenders of employee rights argue that rights should protect impor- tant employee interests from being constantly subjected to utilitarian and financial calculations. This sense of duty might stem from the law, professional codes of conduct, corporate codes of conduct, or such moral principles as fairness, justice, or human rights on the part of the organization’s leadership.

Defining the Parameters of the Employment Relationship

The following section will explore the legal and ethical boundaries that will help us define the employment relationship based on some of the principles discussed above. “Employment,” per se, implicates ethical issues because of the very nature of the relationship it implies. Consider the situation in which an individual agrees to work for another individual. This arrangement raises issues of power, obliga- tion, responsibility, fair treatment, and expectations. In many circumstances, the livelihoods of both parties rely on each other’s contributions to the relationship! Though legal requirements might serve to protect some interests, they can only go so far and cover so many bases. We will begin by looking to the ethics underly- ing the concepts of due process and fairness that help determine what is or is not acceptable behavior in the workplace. We will discover some of the ways in which employers might be able to remain true to these principles, even when specifically challenged by vexing circumstances such as a reduction in force. The relationship is further defined by the application of these principles to working conditions such as health and safety, both in domestic operations and abroad.

Note that the issues in the following sections are predominantly settled from an ethical perspective by their justifi cation . In other words, people of goodwill would be likely to agree that an employee has a right to a safe and healthy workplace, for example. Disagreements do remain in discussions surrounding the implementa- tion, interpretation, or extent of that right. In contrast, the second section of this chapter explores several issues that are not perceived as settled from either a legal or ethical point of view. Reasonable minds may differ not only as to whether the means to achieve the ends are justified but whether the ends themselves are just, fair, or ethical. An example of this latter issue would be affirmative action, a thorny matter for courts, managers, and philosophers alike.

Due Process and Just Cause Employment security—getting and keeping a job—is perhaps the most significant aspect of work from the employee’s ethical perspective. Fundamental questions of justice arise because employees are subject to considerable harms from a lack of security in their jobs and do not have much power to create security. But should employers’ rights and ability to hire, fire, or discipline employees therefore be restricted in order to prevent injustices? Are there any other means by which to protect against unethical behavior or unjust results?

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Philosophically, the right of due process is the right to be protected against the arbitrary use of authority. In legal contexts, due process refers to the proce- dures that police and courts must follow in exercising their authority over citi- zens. Few dispute that the state, through its police and courts, has the authority to punish citizens. This authority creates a safe and orderly society in which we all can live, work, and do business. But that authority is not unlimited; it can be exercised only in certain ways and under certain conditions. Due process rights specify these conditions.

Similarly, due process in the workplace acknowledges an employer’s authority over employees. Employers can tell employees what to do and when and how to do it. They can exercise such control because they retain the ability to discipline or fire an employee who does not comply with their authority. Because of the immense value that work holds for most people, the threat of losing one’s job is a powerful motivation to comply. However, basic fairness—implemented through due process—demands that this power be used justly . It is the definition of basic fairness that remains the challenge. Review, for instance, the conflicting versions of fairness perceptions in France in 2006 in the Reality Check above.

Ironically, the law has not always clearly supported this mandate of justice. Much employment law within the United States instead evolved in a context of a legal doctrine known as employment at will . Employment at will (EAW) holds that, absent a particular contractual or other legal obligation that specifies the length or conditions of employment, all employees are employed “at will.” This means that, unless an agreement specifies otherwise, employers are free to fire an employee at any time and for any reason. In the words of an early court decision, “all may dismiss their employee at will, be they many or few, for good cause, for no cause, or even for cause morally wrong.” 4 In the same manner, an EAW worker may opt to leave a job at any time for any reason, without offering any notice at all; so the freedom is theoretically mutual.

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As discussed in this chapter, a number of states maintain employment at will for employees. How- ever, this is not the case in some other countries. In France, for instance, French labor laws protect all employees from arbitrary dismissal; employees cannot be fi red as long as they maintain a good work record and as long as the fi rm is economically viable.

During the spring of 2006, protests and riots broke out across France in reaction to a proposed change in these laws. During one weekend alone, hundreds of thousands of protesters clashed with police in cities throughout France.

Ironically, the proposed change in law was itself a response to riots the previous year when unemployed

young people, many of them immigrants living in poor neighborhoods, protested the lack of jobs. The French government sought to loosen job protection as a means of encouraging business to hire more young workers. The change would have exempted workers under the age of 25 from the legal job protections during their fi rst two years of employment.

What was only a minor change in a law that, from the U.S. perspective, was already quite radical in protecting worker rights, resulted in massive riots. As a result of these protests, the French government withdrew its proposal.

Reality Check Rioting to Support Due Process in France

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The ethical rationale for EAW, both historically and among contemporary defenders, has both utilitarian and deontological elements. EAW was thought to be an important management tool. Total discretion over employment gives man- agers the ability to make efficient decisions that should contribute to the greater overall good. It was thought that the manager would be in the best position to know what was best for the firm and that the law should not interfere with those decisions. Another basis for EAW was the rights of private property owners to control their property by controlling who works for them.

Both legal and ethical analyses of these claims, however, demonstrate that there are good reasons to limit EAW. Even if EAW proved to be an effective management tool (though research of scholars such as Jeffrey Pfeffer suggests just the opposite), justice demands that such tools not be used to harm other people. Further, even if private property rights grant managers authority over employees, the right of pri- vate property itself is limited by other rights and duties. Also, though the freedom to terminate the relationship is theoretically mutual, the employer is often respon- sible for the employee’s livelihood, while the opposite is unlikely to be true; the differential creates an unbalanced power relationship between the two parties.

Considerations such as these have led many courts and legislatures to create exceptions to the EAW rule (see Table 6.1 ). Civil rights laws, for example, pro- hibit firing someone on the basis of membership in certain prohibited classes, such as race, sex, disability, age, national origin, religion, or ethnic background. Labor laws prevent employers from firing someone for union activities. When the employer is the government, constitutional limitations on government authority are extended into the workplace to protect employees.

A crucial element to recognize with these exceptions, however, is the fact that EAW has priority unless the employee can prove that her or his case falls under one of the exceptions. That is, EAW is the default position on which courts will rely until and unless an exception can be demonstrated. The burden of proof lies with the dismissed employee to show that she or he was unjustly or illegally fired. Due process and just cause , whether instituted as part of internal corporate pol- icy or through legislation, would reverse this burden of proof and require employ- ers to show cause to justify the dismissal of an employee.

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States vary in terms of their recognition of the following exceptions to the doctrine of employment at will. Some states recognize one or more exceptions, while others might recognize none at all. In addition, the definition of these exceptions may vary from state to state.

• Bad faith, malicious or retaliatory termination in violation of public policy. • Termination in breach of the implied covenant of good faith and fair dealing. • Termination in breach of some other implied contract term, such as those that might be created by

employee handbook provisions (in certain jurisdictions). • Termination in violation of the doctrine of promissory estoppel (where the employee reasonably

relied on an employer’s promise, to the employee’s detriment). • Other exceptions as determined by statutes (such as the Worker Adjustment and Retraining

Notification Act [WARN]).

TABLE 6.1 Exceptions to the Doctrine of Employment at Will

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Due process issues arise in other employment contexts as well. Employees are constantly supervised and evaluated in the workplace, and such benefits as sal- ary, work conditions, and promotions can also be used to motivate or sanction employees. Thus, being treated fairly in the workplace also involves fairness in such things as promotions, salary, benefits, and so forth. Because such decisions are typically made on the basis of performance appraisals, due process rights should also extend to this aspect of the workplace. Table 6.2 shows one model for making legally sound performance appraisals.

The ethical questions that remain in this EAW environment, therefore, are whether this atmosphere is one that is most fair and just to all stakehold- ers, whether it leads to the most effective employment outcomes, and whether it satisfactorily guards the rights and interests of both employers and employees. Relevant inquiries in reaching a conclusion on these matters will include those that comprise our decision-making framework. Consider the key facts relevant to issues of due process and fairness. What are the ethical issues involved in your decision and implementation? Who are the stakeholders involved in your deci- sion? What alternatives are available to you? Might there be a way to safeguard the rights of the stakeholders involved while also protecting the interests of the decision makers? If you are, for instance, striving to serve the autonomy of the employer, could you perhaps serve the due process interests of the employee by offering additional notice of termination or more information about alternatives?

Recall that due process is the right to be protected against the arbitrary use of authority. It is your role as decision maker to ensure protection against those arbi- trary decisions. Employers should be fair in their implementation of judgments and just in their implementation of process in order to serve the above principles.

Downsizing One of the most emotional issues for both employees and corporate decision makers is the challenge not only of a single termination but letting many employees go when a firm makes a decision to “downsize.” Terminating workers—whether

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Appraisal procedures should

1. Be standardized and uniform for all employees within a job group. 2. Be formally communicated to employees. 3. Provide notice of performance deficiencies and opportunities to correct them. 4. Provide access for employees to review appraisal results. 5. Provide formal appeal mechanisms that allow for employee input. 6. Use multiple, diverse, and unbiased raters. 7. Provide written instructions and training for raters. 8. Require thorough and consistent documentation across raters that includes specific examples of

performance based on personal knowledge. 9. Establish a system to detect potentially discriminatory effects or abuses of the system overall.

TABLE 6.2 Procedural Recommendations for Legally and Ethically Sound Performance Appraisals

Source: S.B. Malos, “Current Legal Issues in Performance Appraisal,” in J.W. Smither (ed.), Performance Appraisal: State-of-the-Art Methods for Performance Management (San Francisco: Jossey-Bass, 1998), pp. 49–94. Reprinted with permission of the author.

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one or one hundred—is not necessarily an unethical decision. However, the deci- sion itself raises ethical quandaries since alternatives may be available to an orga- nization in financial difficulty. Accordingly, the question of whether to resort to widespread terminations based on financial exigency in lieu of other options that may be available does not always lead to a clear answer. Once the decision has been made, are there ways in which an organization can act more ethically in the process of downsizing? How might our earlier discussion of due process and fairness offer some guidance and/or define limitations in a downsizing environment?

In a speech to the Ethics Officers Association, John Challenger suggested that we should consider the following factors in executing that process: planning, tim- ing, notice, impact (on those who will go and those who will stay), and stakeholder perceptions.5 We can make better choices, Challenger argues. In fact, our decision- making model offers significant guidance in a situation such as a downsizing.

First, the decision regarding downsizing should be made by a representative group so that all stakeholder interests can be considered and to earn the trust of those who will be impacted. The facts should be collected and issues should be determined. Since employees should be kept aware of business conditions, the need for a downsizing effort should not come as a great surprise. However, the question of notice is debatable.

It can be argued that a firm should give notice of an intent to downsize as soon as the need is determined, and let those who will be impacted know who will be let go as soon as that list is devised. On the other hand, the uncertainty and rumors that are sure to develop between the announcement of downsizing and the decision about who will be terminated may outweigh the benefits gained in early notification. In addition, allowing a worker to remain in a position for a period of time once she or he has been notified of impending termination might not be the best option. Workers may interpret early notice as an effort to get the most out of them before departure rather than an effort to allow them time to come to grips with the loss of their jobs.

Once the stakeholders are identified, it will be vital to enumerate any and all possible options with regard to the downsizing efforts and to catalog the impact of each option on each group of stakeholders. (See the following Reality Check for a discussion of options.) When a firm decides to downsize, as with any other termination, it is critical to lessen the impact as much as possible and to allow the terminated employees to depart with dignity (for example, unless there is some other reason for the decision, having a security guard follow terminated employ- ees until they leave the building might not be the best option). Above all, during a time when relationships might be strained, it is critical to be honest and forthright and to be sensitive to the experiences of those who will be affected.

From a legal perspective, the decision about whom to include in a downsizing effort must be carefully planned. If the firm’s decision is based on some criterion that seems to be neutral on its face, such as seniority, but the plan results in a dif- ferent impact on one group than another, the decision may be suspect. For exam- ple, assume the firm does make termination decisions based on longevity with the organization. Also assume that those workers who are most senior are almost entirely male since women only entered this industry in recent years. If the firm moves forward with this process, the majority of those fired will be women and

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the majority of those remaining will be men. In this case, the effort may violate Title VII’s prohibition against discrimination based on gender because the termi- nation policy has a more significant—and negative—impact on women.

To avoid this result, firms should review both the fairness of their decision- making process and the consequence of that process on those terminated and the resulting composition of the workforce. One of the most effective philosophical theories to employ in downsizing decisions is John Rawls’s theory of justice presented in Chapter 3. Under his formulation, you would consider what deci- sion you would make—whether to downsize or how to downsize—if you did not know what role you would be playing following the decision. In other words, you might be the corporate executive with the secure position; you might be a terminated employee with years of seniority who was close to retirement; or you might be a worker who survives the termination slips. If you do not know which role you would be playing, Rawls contends that you are more likely to reach a decision that is relatively fairest to all impacted. Consider what facts might shift your decision in one way or another based on this formulation.

Health and Safety The previous sections addressed ethics in the creation or termination of the employ- ment relationship. The following discussion explores one particular responsibility within that relationship—the employer’s role in protecting the employees’ health and safety while at work. Within the United States and throughout many other countries with developed economies, there is a wide consensus that employees have a fundamental right to a safe and healthy workplace. In some other regions, employees lack even the most basic health and safety protections, such as in work- ing environments that are often termed “sweatshops” (discussed later in this chap- ter). Even within the United States, this issue becomes quite complicated upon closer examination. Not only is the very extent of an employer’s responsibility for workplace health and safety in dispute; there is also significant disagreement concerning the best policies to protect worker health and safety.

Like work itself, health and safety are “goods” that are valued both as a means for attaining other valuable ends and as ends in themselves. Whatever else we desire out of life, being healthy and safe makes it much more likely that we will

As inevitable as downsizing may seem during downturns in the economy, some fi rms have survived decade after decade without any layoffs. How do they do it? One fi rm, Nucor, has not laid off a worker in 20 years. However, it maintains a three-day workweek with an average wage of $8 per hour. When large contracts come in, the company expands to a seven- day workweek and $22 per hour wage. Other fi rms have entered into agreements with their workers

under which the fi rm promises not to terminate workers for reasons of the economy as long as the workers agree to lower wages or decreased hours during tough periods. For instance, in December 1998, Volkswagen in Brazil was suffering under the collapse of that country’s economy and the resulting 25 percent downturn in the Brazilian car market. It avoided terminations at its 20,000-worker plant by moving to a four-day workweek.

Reality Check Is It Really “Inevitable?”

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198 Chapter 6 Ethical Decision Making: Employer Responsibilities and Employee RightsDecision Point Measuring Our Worth

How do we measure the intrinsic value of a life, in addition to the instrumental value? Though perhaps an interesting mental exercise in which to engage, it is also a critical component of some business decisions and dilemmas. The following decision, though decades old, continues to teach us the hazards of considering only the instrumental value of a life. Though the instrumental calculation seems to make sense, and presumably it did at the time to those involved, you will see in hindsight that the “human element” seems to be missing.

In 1968, Ford Motor Company made a historic decision regarding the Ford Pinto, which was engineered with a rear gas tank assembly that had a tendency to explode in accidents that involved some rear-end collisions. The company allowed the Pinto to remain on the market after it determined that it would be more costly to engage in a recall effort than to pay out the costs of liability for injuries and deaths incurred. In an infamous memo, Ford’s senior management calculated what the company would likely have to pay per life lost. It is noteworthy that these estimates were not Ford’s alone but were based instead on figures from the National Highway Traffic Safety Administration.

Expected Costs of Producing the Pinto with Fuel Tank Modifications:

Expected unit sales: 11 million vehicles (includes utility vehicles built on same chassis) Modification costs per unit: $11 Total Cost: $121 million [11 million vehicles � $11 per unit]

Expected Costs of Producing the Pinto without Fuel Tank Modifications:

Expected accident results (assuming 2,100 accidents): 180 burn deaths 180 serious burn injuries 2,100 burned out vehicles

Unit costs of accident results (assuming out of court settlements): $200,000 per burn death $67,000 per serious injury $700 per burned out vehicle

Total Costs: $49.53 million [� (180 deaths � $200k) � (180 injuries � $67k) � (2,100 vehicles � $700 per vehicle)]

Using the figures above, the costs for recalling and modifying the Pinto were $121 million, while the costs for settling cases in which injuries were expected to occur would reach only $50 million.

If you were responsible for deciding whether to engage in the recall, how would you conduct the decision-making process? How would you account for the intrinsic as well as the instrumental value of a human life? Returning to the question that opened this Decision Point, consider how you would measure your own worth or the value of someone close to you. Who are your stakeholders and what is your value to each of them? How will you measure it—financially?

Would any of the following questions offer you a guidepost?

How much would your stakeholders suffer if they lost you?

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be capable of attaining our ends. In this sense, health and safety have a very high instrumental value since part of their value derives from the fact that we use them to attain other things of value. Insurance therefore seeks to compensate workers for injuries they incur by paying the employees for the wages they lost as a result of being unable to work.

Yet health and safety are also valuable in and of themselves. They have intrin- sic value in addition to their instrumental value. To understand this distinction, consider how one might respond to the question of how much her or his life is worth. The life of one who dies in a workplace accident has instrumental value that can be measured, in part, by the lost wages that would have been earned had that person lived. But these lost wages do not measure the intrinsic value of the life, something that financial compensation simply cannot replace. The above Decision Point explores the measurement of intrinsic value.

What is the value of health and what does it mean to be healthy? When is a work- place safe? When is it unsafe? If “healthy” is taken to mean a state of flawless physi- cal and psychological well-being, arguably no one is perfectly healthy. If “safe” means completely free from risk, certainly no workplace is perfectly safe. If health and safety are interpreted as ideals that are impossible to realize, then it would be unreasonable to claim that employees have a right to a healthy and safe workplace.

Health and Safety as Acceptable Risk Employers cannot be responsible for providing an ideally safe and healthy work- place. Instead, discussions in ethics about employee health and safety will tend to focus on the relative risks workers face and the level of acceptable workplace risk. In this discussion, “risks” can be defined as the probability of harm, and we deter- mine “relative risks” by comparing the probabilities of harm involved in various activities. Therefore, scientists who compile and measure data can determine both risks and relative risks (see Figure 6.1 ). It is an easy step from these calculations to certain conclusions about acceptable risks. If it can be determined that the prob- ability of harm involved in a specific work activity is equal to or less than the probability of harm of some more common activity, then we can conclude that this activity faces an “acceptable level of risk.” From this perspective, a workplace is safe if the risks are acceptable .

Imagine if we generalize this conclusion and determine all workplace health and safety standards in this manner. Such an approach would place the respon- sibility for workplace safety solely on management. Business would hire safety engineers and other experts to determine the risks within their workplace. These experts would know the risk levels that are otherwise accepted throughout the society. These might involve the risks involved in driving a car, eating high-fat

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How much do you currently contribute to society and what would society lose if you were not here? How much would society benefit if you continued to survive?

Businesses have reasons to consider these issues, though extraordinarily difficult; how would you prefer that they reach conclusions in these areas?

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food, smoking, jogging, and so forth. Comparing these to the risks faced in the workplace, safety experts could perform a risk assessment and determine the rela- tive risks of work. If the workplace were less risky than other common activities, management could conclude that they have fulfilled their responsibility to provide a healthy and safe workplace.

However, such an approach to workplace health and safety issues has sev- eral problems. First, this approach treats employees disrespectfully by ignoring their input as stakeholders. Such paternalistic decision making effectively treats employees like children and makes crucial decisions for them, ignoring their role in the decision-making process. Second, in making this decision, we assume that health and safety are mere preferences that can be traded off against competing values, ignoring the fundamental deontological right an employee might have to a safe and healthy working environment. Third, it assumes an equivalency between workplace risks and other types of risks when there are actually significant dif- ferences between them. Unlike many daily risks, the risks faced in the workplace may not be freely chosen, nor are the risks faced in the workplace within the con- trol of workers. Fourth, it disregards the utilitarian concern for the consequences of an unsafe working environment on the social fabric, the resulting product or service created, the morale of the workforce, and the community, as well as other large-scale results of an unhealthy workplace.

Perhaps most important, unlike some daily risks each of us freely undertakes, the risks faced at work could be controlled by others, particularly by others who might stand to benefit by not reducing the risks. For instance, making the work- place safe may pose substantial costs to employers. Relative to the risks one might face by smoking, for example, working in a mill and inhaling cotton dust may not seem as risky. But, in the former case, the smoker chooses to take the risk and could take steps to minimize or eliminate them by herself or himself. In the latter case, the mill worker cannot avoid the risks as long as she or he wants to keep a job. Often someone else can minimize or eliminate these risks; but this other party also has a financial incentive not to do so. In one case, smoking, the decision maker freely chooses to take the risk, knowing that she or he can control it. In the other case, the worker’s choices and control are limited. The challenges involved

FIGURE 6.1 Calculating Acceptable Level of Risk

= or <

>

Probability of harm for

similar, more common activities

Probability of harm for

similar, more common activities

Probability of harm for any specific work

activity

Probability of harm for any specific work

activity

Activity is safe

Activity is not safe

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in the acceptable risk approach to workplace health and safety are summarized in Table 6.3 . Surely we need another approach.

Health and Safety as Market Controlled Perhaps we can leave health and safety standards to the market. Defenders of the free market and the classical model of corporate social responsibility would favor individual bargaining between employers and employees as the approach to work- place health and safety.. On this account, employees would be free to choose the risks they are willing to face by bargaining with employers. Employees would bal- ance their preferences for risk against their demand for wages and decide how much risk they are willing to take for various wages. Those who demand higher safety standards and healthier conditions presumably would have to settle for lower wages; those willing to take higher risks presumably would demand higher wages.

In a competitive and free labor market, such individual bargaining would result in the optimal distribution of safety and income. Of course, the market approach can also support compensation to injured workers when it can be shown that employers were responsible for causing the harms. So an employer who fails to install fire-fighting equipment in the workplace can be held liable for burns an employee suffers during a workplace fire. The threat of compensation also acts as an incentive for employers to maintain a reasonably safe and healthy workplace. The following Decision Point considers whether it is therefore ethical for a com- pany to outsource its most dangerous jobs to countries where the labor force is willing to accept low wages for unsafe conditions.

This free market approach has a number of serious problems. First, labor mar- kets are not perfectly competitive and free. Employees do not have the kinds of free choices that the free market theory would require in order to attain opti- mal satisfactions—though enlightened self-interest would be a valuable theory to introduce and apply in this environment, it is unrealistic to presume employ- ees always have the choices available to them that make it possible. For exam- ple, risky jobs are often also the lowest-paying jobs, and people with the fewest employment choices hold them. Individuals are forced to accept the jobs because they have no choice but to accept; they are not actually “balancing their prefer- ences for risk against their demand for wages” because they do not have options. Second, employees seldom, if ever, possess the kind of complete information efficient markets require. If employees do not know the risks involved in a job,

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• Treats employees disrespectfully by ignoring their input as stakeholders. • Ignores the fundamental deontological right an employee might have to a safe and healthy work-

ing environment. • Assumes an equivalency between workplace risks and other types of risks when there are significant

differences between them. • Improperly places incentives since the risks faced at work could be

controlled by others who might stand to benefit by not reducing them.

TABLE 6.3 Challenges to the Acceptable Risk Approach to Health and Safety

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they will not be in a position to freely bargain for appropriate wages and there- fore they will not be in a position to effectively protect their rights or ensure the most ethical consequences. This is a particular concern when we recognize that many workplace risks are in no sense obvious. An employee may understand the dangers of heavy machinery or a blast furnace; but few employees can know the toxicity or exposure levels of workplace chemicals or airborne contaminants.

Such market failures can have deadly consequences when they involve work- place health and safety issues. Of course, market defenders argue, markets will, over time, compensate for such failures. Over time, employers will find it difficult to attract workers to dangerous jobs and, over time, employees will learn about the risks of every workplace. But this raises what we have previously described as the “first generation” problem. The means by which the market gathers infor- mation is by observing the harms done to the first generation exposed to imper- fect market transactions. Thus, workers learn that exposure to lead is dangerous when some female workers exposed to lead suffer miscarriages or when others have children who are born with serious birth defects. We learn that workplace exposure to asbestos or cotton dust is dangerous when workers subsequently die from lung disease. In effect, markets sacrifice the first generation in order to gain information about safety and health risks. These questions of public policy, questions that after all will affect human lives, would never even be asked by an individual facing the choice of working at a risky job. To the degree that these are important questions that ought to be asked, individual bargaining will fail as an

Decision Point Should Dangerous Jobs Be Exported?

If one follows the market-based recommendation to allocate workplace risks on the basis of an optimal distribution of risks and benefits, one would conclude that, from a business perspective, dangerous jobs ought to be exported to those areas where wages are low and where workers are more willing to accept risky working conditions. The harms done by dangerous jobs, in terms of forgone earnings, are lower in regions with low wages and lower life expectancies. The benefits of providing jobs in regions with high unemployment would also outweigh the benefits of sending those jobs to regions with low unemployment. (See also the discussion of global labor markets, later in this chapter, and the discussion on exporting toxic wastes in Chapter 9.)

What facts would you want to know before deciding whether the practice of exporting dangerous jobs was fair and responsible? What alternatives to exporting dangerous jobs exist for a firm? Who are the stakeholders of your decision? What is the impact of each alterna- tive mentioned above on each stakeholder you have identified? Should local legal regulations govern the situation? What are the consequences of such a decision? What rights and duties are involved? If the consequences are effective and valuable to the majority but fundamental rights are implicated, how will you decide what to do?

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ethical public policy approach to worker health and safety. Table 6.4 summarizes the challenges inherent in the free market approach to health and safety.

Health and Safety – Government-Regulated Ethics In response to such concerns, government regulation of workplace health and safety appears more appropriate from an ethical perspective. Mandatory government stan- dards address most of the problems raised against market strategies. Standards can be set according to the best available scientific knowledge and thus overcome market failures that result from insufficient information. Standards prevent employees from having to face the fundamentally coercive choice between job and safety. Standards also address the first generation problem by focusing on prevention rather than compensation after the fact. Finally, standards are fundamentally a social approach that can address public policy questions ignored by markets.

In 1970, the U.S. Congress established the Occupational Safety and Health Administration (OSHA) and charged it with establishing workplace health and safety standards. Since that time, the major debates concerning workplace health and safety have focused on how such public standards ought to be set. The domi- nant question has concerned the appropriateness of using cost-benefit analysis to set health and safety standards.

When OSHA was first established, regulations were aimed at achieving the safest feasible standards. This “feasibility” approach allows OSHA to make trade- offs between health and economics, but it is prejudiced in favor of health and safety by placing the burden of proof on industry to show that high standards are not economically feasible. Health and safety standards are not required come what may; but an industry is required to meet the highest standards attainable within technological and economic reason.

Some critics charge that this approach does not go far enough and unjustly sac- rifices employee health and safety. From that perspective, industries that cannot operate without harming the health and safety of its employees should be closed. But the more influential business criticism has argued that these standards go too far. Critics in both industry and government have argued that OSHA should be required to use cost-benefit analysis in establishing such standards. From this per- spective, even if a standard is technologically and economically feasible, it would still be unreasonable and unfair if the benefits did not outweigh the costs. These critics argue that OSHA should aim to achieve the optimal, rather than highest feasible, level of safety.

Using cost-benefit analysis to set standards, in effect, returns us to the goals of the market-based, individual bargaining approach. Like that market approach,

• Labor markets are not perfectly competitive and free. • Employees seldom if ever possess the kind of perfect information markets require. We ignore important questions of social justice and public policy if we approach questions solely from the point of view of an individual.

TABLE 6.4 Challenges with the Free Market Approach to Health and Safety

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this use of cost-benefit analysis faces serious ethical challenges. We should note, however, that rejecting cost-benefit analysis in setting standards is not the same as rejecting cost-effective strategies in implementing those standards. A com- mitment to cost-effectiveness would require that, once the standards are set, we adopt the least expensive and most efficient means available for achieving those standards. Cost-benefit analysis, in contrast, uses economic criteria in setting the standards in the first place. It is cost-benefit, not cost-effectiveness, analysis that is ethically problematic.

The use of cost-benefit analysis in setting workplace health and safety stan- dards commits us to treating worker health and safety as just another commodity, another individual preference, to be traded off against competing commodities. It treats health and safety merely as an instrumental value and denies its intrinsic value. Cost-benefit analysis requires that an economic value be placed on one’s life and bodily integrity. Typically, this would follow the model used by the insur- ance industry (where it is used in wrongful death settlements, for example) in which one’s life is valued in terms of one’s earning potential. Perhaps the most offensive aspect of this approach is the fact that since, in feasibility analysis, health and safety is already traded off against the economic viability of the indus- try, a shift to cost-benefit analysis entails trading off health and safety against profit margin. (Please see the above Reality Check for an application of cost- benefit analysis.)

The policies that have emerged by consensus within the United States seem to be most defensible. Employees have a legitimate ethical claim on mandatory health and safety standards within the workplace. To say that employees have a right to workplace health and safety implies that they should not be expected to make trade-offs between health and safety standards and job security or wages. Further, recognizing that most mandatory standards reduce rather than eliminate risks, employees should also have the right to be informed about workplace risks. If the risks have been reduced to the lowest feasible level and employees are fully aware of them, then a society that respects its citizens as autonomous decision makers has done its duty.

Evidence collected by the Occupational Safety and Health Administration suggests just the opposite: Safety and health programs add value and reduce costs. Even average companies can reduce injuries 20 to 40 percent by establishing safety and health programs. Several studies have estimated that safety and health programs save $4 to $6 for every dollar invested. Yet, only about 30 percent of U.S. work sites have established these programs. These savings result from a decrease in employee injuries

and illnesses, lower workers’ compensation costs, decreased medical costs, reduced absenteeism, lower turnover, higher productivity, and increased morale.

Source: Charles N. Jeffress, former assistant secretary for occupational safety and health, U.S. Department of Labor, “Future Directions for OSHA,” speech delivered to Nation- al Safety Congress, New Orleans, October 19, 1999 (http:// www.osha.gov/pls/oshaweb/owadisp.show_document?p table�SPEECHES&p_id�244).

Reality Check Do Health and Safety Programs Cost Too Much?

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Global Applications: The Global Workforce and Global Challenges

As you consider the issues of due process, fairness, and health and safety raised thus far in the chapter, note that the law discussed here applies to workers who are employed in the United States. Workers outside of the United States may be sub- ject to some U.S. laws if they work for an American-based organization, though enforcement is scattered. In some cases, workers in other countries are often pro- tected by even more stringent laws than those in the United States. Many countries in the European Union, for example, have strong laws protecting workers’ rights to due process and participation. But in many other cases, especially in certain developing countries, workers find themselves subject to conditions that U.S.- based workers would find appalling. While those of us who work in the United States may benefit from battles fought in years past for occupational safety and health, workers in certain Southeast Asian countries, for instance, are simply argu- ing for at-will bathroom breaks.

The response to this stark contrast is not a simple one. Though few people, if any, would argue for the continuation of the circumstances described above, econo- mists and others do not agree about a solution. Some contend that the exploitation of cheap labor allows developing countries to expand export activities and to improve their economies. This economic growth brings more jobs, which will cause the labor market to tighten, which in turn will force companies to improve conditions in order to attract workers (see Figure 6.2 ). In fact, several commentators argue that encouraging greater global production will create additional opportunities for expansion domestically, providing a positive impact on more stakeholders. 6 Though it is an unpopular sentiment with the general consuming public, many economists argue that the maintenance of sweatshops is therefore supported by economic theory. Indeed, even the term sweatshops remains open to debate.

On the other hand, opponents to this perspective argue that allowing this pro- cess to take its course will not necessarily lead to the anticipated result, just as voluntarily improving legal compliance, wages, and working conditions will not inevitably lead to the negative consequences the free market advocates threaten. As we examine ethical issues in the workplace, a helpful exercise is to consider the global dimension of an ethically responsible workplace. Certainly it is argu- able that some minimum standards might apply and multinationals may have some core ethical obligations to employees. But how do we determine what those might be? Should the best employment practices in the United States set the standard for the global economy? That would mean concluding that the standards of one particular country are appropriate for all countries and cultures of the world, not necessarily the optimal conclusion.

Instead, some scholars have argued that Kantian universal principles should govern the employment relationship and that the ethical obligation of respect for persons should guide the employment interactions. “To fully respect a person, one must actively treat his or her humanity as an end, and not merely as a means to an end. This means that it is impermissible to treats persons like disposable tools.” 7

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Though different ethical theories may yield conflicting responses, it is arguable that a fundamental moral minimum set of standards exists that should be guaranteed to workers in all countries notwithstanding culture, stage of economic development, or availability of resources. Philosophers Arnold and Bowie contend that multina- tionals “must ensure the physical well-being of employees and refrain from under- mining the development of their rational and moral capacities . . . [R]especting workers in global factories requires that factories of multinational corporations (MNCs), including contract factories, adhere to local labor laws, refrain from the use of coercion, provide decent working conditions, and provide wages above the overall poverty line for a 48-hour work week.” 8 Others contend the list should also include a minimum age for child labor, nondiscrimination requirements (including the right to equal pay for equal work), and free association including the right to organize and to bargain collectively in contract negotiations. 9

International nongovernmental organizations have also attempted to step into this fray to suggest voluntary standards to which possible signatory countries or organizations could commit. For instance, the International Labour Office has promulgated its Tripartite Declaration of Principles Concerning Multinational Enterprises and Social Policy, which offers guidelines for employment, training,

FIGURE 6.2 The Case for Sweatshops

Source: D. Arnold and L. Hartman, “Worker Rights and Low Wage Industrialization: How to Avoid Sweatshops,” Human Rights Quarterly, vol. 28, no. 3 (August 2006), pp. 676–700. Reprinted by permission of Human Rights Quarterly and its publisher, the Johns Hopkins University Press.

The Case for Sweatshops

Exploitation of cheap labor

Expansion of exports

Labor market tightens

Improves economy

More jobs enter country

Companies forced to improve conditions to attract workers

Working conditions improve

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conditions of work and life, and industrial relations. The “Tripartite” part of the title refers to the critical cooperation necessary from governments, employers’ and workers’ organizations, and the multinational enterprises involved.

As mentioned above, the discussion of legal and ethical expectations and bound- aries in this chapter is based on the law in the United States. However, awareness of the limitations of this analysis and sensitivity to the challenges of global imple- mentation are critical in today’s multinational business operations. We will revisit the quandary of varying ethical standards as applied to diverse economic and social environments in the next section with regard to the issue of child labor.

The Case of Child Labor One of the key issues facing business in today’s globalized economy is the potential for cultural or legal conflicts in connection with worldwide labor management. Though the issues stir our consciences, their resolution is not so clear. Let us con- sider, for example, the case of child labor . As we begin to understand the circum- stances facing children worldwide, we can see that a simple prohibition might not offer us the best possible solution. But what options exist? (For a general inquiry, please see the Decision Point, above.)

According to International Labour Organization estimates, 250 million chil- dren between 5 and 17 years old currently work in developing countries, almost half of them on a full-time basis. 10 “Moreover, some 8.4 million children [a]re engaged in so-called ‘unconditional’ worst forms of child labor, which include forced and bonded labor, the use of children in armed conflict, trafficking in chil- dren and commercial sexual exploitation.” 11 Because work takes children out of school, more than half of the child labor force will never be literate. 12 Substandard working conditions have an impact on growth; child employees will be physically smaller than those who did not work as children even into adulthood. 13 By the time

Decision Point What to Do about Child Labor

As you consider the discussion of child labor, consider the many stakeholders involved and the power each one holds (or lack thereof), the options available to the multinational corporations, and the options consumers have in determining from whom they will buy, what rights might be implicated and the consequences of protecting them, and how you would respond if you were a labor advocate seeking to determine the best next steps in the debate.

What are the key facts relevant to your decision regarding child labor? What are the ethical issues involved in child labor? What incentives might be in place that would actively support or pose challenges to your response? Who are the stakeholders in connection with child labor? What alternative responses might you suggest? How would each of your alternatives affect each of the stakeholders you have identified? Is there any guidance available from global organizations to assist you in resolv- ing this particular dilemma?

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child laborers become adults, most will irrevocably be sick or deformed, unlikely to live beyond fifty years old. 14

Of course, many economically developed countries currently employ child labor, albeit with restrictions, so one should carefully review the social and eco- nomic structure within which the labor exists. While the easy answer may be to rid all factories of all workers under 18 years of age, that is often not the best answer for the children or the families involved. Prospects for working children in devel- oping countries indeed appear bleak. Children may begin work as young as three years old. They not only may work in unhealthy conditions; they may also live in unhealthy conditions. The labor opportunities that exist almost always require children to work full time, thereby precluding them from obtaining an education. 15

However, if children are not working, their options are not as optimistic as those of children in developed economies. Sophisticated education systems or public schools are not always available. Often children who do not work in the manufac- turing industry are forced to work in less hospitable “underground” professions, such as drug dealing or prostitution, simply to earn their own food each day. 16

Moreover, even if educational alternatives are available in some environments, recommending removal of the child from the workplace completely ignores the financial impact of the child leaving his or her job. The income the youth worker generates may, at the very least, assist in supporting his or her fundamental needs (food, clothing, and shelter); at the most, it may be critical in supporting the entire family.

Rights and Responsibilities in Conflict: Discrimination, Diversity, and Affirmative Action

In the preceding sections, we explored the ethical environment of several elements of the employment relationship. As explained earlier, the ethical issues discussed in the first section of this chapter are, for the most part, settled. Though our discus- sion addressed particular areas of outstanding contention, the underlying rights have been established.

In the following section, we consider several matters that scholars, jurists, and corporate leaders continue to debate. The focus is on those subtle areas where the law may not yet be completely settled, where it remains open to diverse cultural interpretations, strong minority opinions, and value judgments. Though the courts have been forced to render judgment in these areas, their decisions might not be unanimous or might reverse a strong lower court opinion representing a contrary perspective.

From a Kantian, deontological perspective, agreement on the fundamental rights implied by the following issues and on their appropriate prioritization is not yet universal. From a utilitarian viewpoint, reasonable minds engaged in these ethical issues do not always agree on which resolution might lead towards the greatest com- mon good, or even what that good should ultimately be. Distributive justice does not provide a clear-cut solution as each camp can often make an argument for fairness. Our purpose here is to articulate and apply the ethical decision-making process to

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One approach towards discrimination in employment calls for no corporate or governmental intervention. Defenders of the market argue that if the market were left to its own devices, we could expect discrimination to fall by the wayside. That is, if a firm hires its employees on the basis of prejudices and discriminatory views (such as that women cannot do a certain job), then it is limiting its pool of possible employees. Another firm that does not discriminate can choose from the larger pool and is more likely to obtain the most qualified individual for the job. There is therefore an opportunity cost to discrimination. Labor is clearly a factor of production; when we leave productive resources unused, the entire economy suffers. The human capital of women and minorities is lost when we deny them opportunities in the economy. Judge Richard Posner explains the economic impact of this theory in terms of race discrimination as follows:

In a market of many sellers, the intensity of the prejudice against blacks will vary considerably. Some sellers will have only a mild prejudice against them. These sellers will not forgo as many advantageous transactions with blacks as their more prejudiced competitors (unless the law interferes). Their costs will therefore be lower, and this will enable them to increase their share of the market. The least prejudiced sellers will come to dominate the market in much the same way as people who are least afraid of heights come to dominate occupations that require working at heights: they demand a smaller premium.17

Should corporate policy makers and government leave such issues to the market? Should employees’ fears or concerns about workplace discrimination be relieved upon understanding Judge Posner’s theory? Why or why not?

What key facts do you need to determine whether the market can solve this challenge? Under what circumstances would Posner’s argument fail? What market failures might prevent economic forces from efficiently ending discrimination? What are some of the other ethical issues that come to mind when you consider this proposed “solution”? What is the effect of regulation such as Title VII on Posner’s argument? Even if the market could work against discrimination, is this matter sufficiently important from an ethical perspective that society should ad- dress it more actively through legislation? Who are the stakeholders involved in this particular issue? What alternative responses could you propose? Are you more comfortable with management through legislation or a free market? Consider the implications if the discriminating firm held a monopoly on its good or service. How would each of your alternatives affect each of the stakeholders you have identified? Where might you look for additional guidance to assist you in resolving this particular dilemma?

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the challenges presented, provide a cross section of the arguments the advocates involved make, and explore the insights that ethical theory might supply.

Discrimination The courts have carefully construed legal precedent in the decades since Title VII of the United States Civil Rights Act was passed in 1964 and created the pro- hibited classes of discrimination. Though several specific areas of delicate and subtle quandaries remain, many of the original legal and ethical debates have been fought, offering business decision makers arguably clear guidance on appropriate behavior in the workplace. For instance, while the advent of sexual harassment as a basis for a legal complaint was new to the court system during the last century, seldom does a new recruit begin employment at a large company today without standard sexual harassment training. When the issue was first raised in U.S. work- places, employees were at a loss about what was or was not acceptable. Today the Equal Employment Opportunity Commission (EEOC), 18 as well as a host of other sources, provides explicit guides and resources detailing appropriate behavior as well as offering legal direction and parameters for both employees and employers.

As we have stated throughout this text, though, the law can only go so far. While it is not our purpose to explore in detail the law relating to workplace dis- crimination, suffice it to say that the law allows employers to make decisions on any basis other than those prohibited by the Constitution, precedent, and several statutes (such as age, religion, race, disability, gender, national origin, and color). Some commentators would contend that this broad mandate allows employers enormous autonomy in their employment decisions while many employers still bemoan any regulation of their workplaces.

Widespread disagreement on a global basis remains about the rights of employ- ees with regard to discrimination, the extent of protected classes, and the more specific subtopics such as diversity and affirmative action that we will examine shortly. Even in the United States, the concept of discrimination remains one of the most intensely debated issues today. Employers continue to advocate for their rights to manage the workplace and to be permitted to hire, retain, and terminate employees without external influence or control. Employees fear unfair treatment and a loss of power based on reasons completely outside their control. Judge Rich- ard Posner argues in the previous Decision Point how the market might be able to relieve employees of some of these fears— at least in theory .

Without diminishing the impact of overt acts of discrimination or their continu- ation in the workplace, covert forms of discrimination are also widely prevalent though they often go unnoticed. For instance, University of Chicago scholars Mari- anne Bertrand and Sendhil Millainathan found that there remains discrimination simply on the basis of one’s name. 19 In order to determine the extent of discrimina- tion in the labor market on the basis of the racial sound of a name, these researchers answered help-wanted ads in Boston and Chicago newspapers by submitting résu- més that were exactly the same in their substance, but that used different names. The number of callbacks for each résumé differed significantly. Names that were tradi- tionally associated with Caucasians (such as Jill, Allison, Neil, and Brad) drew 50

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percent more callbacks than did those traditionally associated with African Amer- icans (such as Aisha, Ebony, Tremayne, and Leroy). Even when the researchers increased the quality of the résumés, higher quality résumés from candidates who sounded African American received no more callbacks than the original résumé. The only bright spot in the research was the finding that Chicago employers in Afri- can American neighborhoods discriminated less than those in other communities.

We often do not recognize areas of Western culture that contain or perpetuate covert discrimination. In the article “White Privilege: Unpacking the Invisible Knapsack,” 20 Peggy McIntosh identifies a number of daily conditions a white per- son in Western society can count on:

I can go shopping alone most of the time, pretty well assured that I will not be followed or harassed.

I can open a newspaper or turn on the television and see people of my race represented positively.

I can do well in a challenging situation without being called a credit to my race.

I am never asked to speak for all of the people in my racial group.

McIntosh explains that these privileges are like “an invisible weightless knapsack of provisions, maps, passports, codebooks, visas, clothes, tools and blank checks.”

Discrimination not only persists in the United States with regard to race, but also in connection with gender. Women often face challenges that are dis- tinct from those faced by men. For instance, women and men are both subject to gender stereotyping, but suffer from different expectations in that regard. A woman who is aggressive in the workplace is often considered a bully, while a man is deemed to be doing what he needs to do to get ahead. In fact, a corporate

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How would this same story about gender coaching sound if it had to do with one race acting too much like another? Or, how would you feel about the story if it suggested that a certain group of people should “know their place” or people will not want to work with them? What would you think of a program that offered coaching to men on how to be “more like women” because the program suggested that women were put off by boorish, insensitive males?

What key facts are relevant to the issue of coaching? What are the origins of coaching and what challenges have served to create a need for it? In addition to the race question raised above, what are some of the other ethi- cal issues that come to mind when you consider this practice? Who are the stakeholders involved in this particular issue? What alternative responses are available? How would each of your alternatives affect each of the stakeholders you have identified? Where might you look for additional guidance to assist you in resolving this particular dilemma?

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Decision Point Gender versus Race

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coaching program exists for women who are considered to be “bullies” called “Bully Broads.” The program is designed to help women understand how their conception of what it takes to get ahead (often learned through interactions with men) might cause co-workers to view them negatively. Its goal is to boost produc- tivity because “it is difficult to produce if others do not want to work with you.” Can you imagine a similar program for men? Probably not. Aggressive men are viewed in positive terms: going after what they want, not letting anything get in their way, and so on. (See the Decision Point on the previous page for another perspective on coaching.)

An article discussing the above coaching program failed to mention how women’s behavior might have been learned or whether it should be all right for women to engage in behavior similar to that of their male counterparts. 21

Diversity The Bully Broads idea that “it is difficult to produce if others do not want to work with you” might not have been relevant even just a few decades ago since the U.S. workforce today is significantly more diverse than ever before and all data suggest that this will continue. Efforts towards eliminating discrimination in employment over the past 30 years are partially responsible for this change. But a changing population is also a major factor in the increasingly diverse workplace.

Diversity refers to the presence of differing cultures, languages, ethnicities, races, affinity orientations, genders, religious sects, abilities, social classes, ages, and national origins of the individuals in a firm. Ninety percent of employees in U.S. businesses believe they work in a diverse workplace. 22 This is not surpris- ing since the pool of eligible and interested workers is becoming more and more diverse as well. It is estimated that, by 2010, only 20 percent of the workforce will be white men under 45. 23 As one might expect, the management composition at firms with diversity programs is significantly more diverse than those at fi rms that do not have such programs, and 79 percent of senior managers at those fi rms say that cultivating a more diverse workforce is part of the organization’s overall business strategy. The positive impact on the overall strategy is not insignificant, as the following Reality Check indicates.

Diversity has brought benefits to the workplace, but diversity efforts have also created new conflicts. Recall the definition of diversity above: Diversity refers to the presence of differing cultures, languages, ethnicities, races, affinity orientations, genders, religious sects, abilities, social classes, ages, and national origins of the individuals in a firm. When a firm brings together individuals with these (or other) differences—often exposing these individuals to such differences for the first time— areas of tension and anxiety may emerge. In addition, the organization is likely to ask its employees to work together toward common goals, on teams, in supervisory or subordinate roles, and in power relationships, all requests that might lead to con- flicts or tension even without additional stressors such as cultural challenges.

Diversity can potentially increase several areas of values tension. Where differ- ences are new or strong, and where negative stereotypes previously ruled interac- tions between particular groups, sensitivity to the potential for conflict is necessary.

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Another concern involves integrating diverse viewpoints with a preexisting corporate culture. There seems nothing inappropriate about seeking to ensure that workers will support the particular values of a firm, but it might be difficult to do this while also encouraging diversity. Diversity, which might be the source of positive gains for the organization, might also be the source of fundamental differences in values that must be balanced. Some scholars suggest that job appli- cants be screened with regard to their values, but how can employers do so? Hir- ing is not an area to be taken lightly, but most firms go with a “gut” instinct about whether or not a job applicant will “fit in.” In the same way that you might apply the “can you sleep at night” test to an ethical dilemma after considering all the implica- tions of a decision, you might trust an employment choice to the same test.

It is not discriminatory to refuse to hire someone about whom you simply have a “bad feeling,” unless that bad feeling is based on their difference in race or gen- der. On the other hand, it is vital to be wary of prejudgments based solely on dif- ferences in interpretations of culturally based standards. While variance in funda- mental standards might justify a sense of a “bad fit” between a potential employer and employee, divergence in culturally based standards such as attire, hair styles, or manner of speaking might instead be treated differently. Efforts at understand- ing multiculturalism, such as acknowledging and promoting diversity through celebration and appreciation of various cultures in the workplace, can serve both to educate and to encourage the benefits linked to diversity efforts.

On the other hand, the cost of ignoring diversity is high, not only in terms of losses of productivity, creativity, and other performance-based measures, but also in terms of legal liability. Texaco experienced what insiders refer to simply as “the crisis” in 1996 when the company was required to pay $175 million to settle a racial discrimination lawsuit. The settlement was based on taped conver- sations of executives using racist language as well as documented compensation

A groundbreaking study by Catalyst in 2004 evidenced a strong link between gender diversity in top management teams and corporate fi nancial performance. The study’s authors contend that the link is based on the fact that employers who pay attention to diversity have a larger and more capable applicant pool from whom to choose the best workers. These organizations are also better positioned to respond more effectively to a diverse consumer population. In addition, these fi rms evidence better decision-making, production and other critical success factors.

The group of companies with the highest rep- resentation of women on their top management

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teams experienced better fi nancial performance than the group of companies with the lowest women’s representation.

In four out of the fi ve industries analyzed, the group of companies with the highest women’s representation on their top management teams experienced a higher total return to sharehold- ers than the group of companies with the lowest women’s representation.

Source: Catalyst, Inc., “The Bottom Line: Connecting Corporate Performance and Gender Diversity” (2004), http: //www.catalystwomen.org/knowledge/titles/title. php?page = lead_fi npertf_04.

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discrimination against minority employees, hundreds of whom were being paid below the minimum salary for their job level.

A firm often reaches its depths before it emerges anew, and Texaco’s subse- quent numbers tell a much different story. In 2002, minority hires accounted for 46 percent of all new employees, including some key senior executives, and more than 20 percent of promotions, and 34 percent of new hires were women. Texaco pledged to spend at least $1 million with minority and women contractors within five years of the settlement and, of course, diversity training is now mandated for all workers, with management compensation tied to the attainment of success in implementing new initiatives. (See above Decision Point for additional informa- tion about Chevron Texaco programs.)

Affirmative Action Throughout this chapter, we have discussed the means by which to protect employer interests and employee rights. With regard to the latter, we have focused on employee rights to fair treatment and due process in the workplace. A question arises, how- ever, when we consider balancing those rights with competing employee rights, as

Decision Point Diversity Mentoring Programs

Chevron Texaco includes case studies in its annual Corporate Responsibility Reports. The following appeared in its 2002 report in a discussion about diversity. As you read above, several years prior, Texaco settled a large discrimination suit and knew it had to make some changes in this area. As you review the statistics above and the case study below, consider these questions:

What do you believe is Chevron Texaco’s motivation? Who are its key stakeholders for this particular communication and for the pro- gram itself? Do you believe the program seems like it is or will be a successful one or, if you might need additional information, what do you believe would be the key components to make this program successful?

DIVERSITY MENTORING PROGRAM

ChevronTexaco Global Lubricants (CTGL) markets more than 3,500 lubricants and coolants around the globe and is ranked among the top three global lubricants companies. CTGL believes that its success depends not just on product quality but also on developing a workforce that mirrors the global diversity of its customers. “Having a diversity of backgrounds and views gives us a unique advantage,” says Shariq Yosufzai, president of Global Marketing for Downstream. “The varied perspectives of our colleagues help us better anticipate market challenges and forge better solutions. We must look and think like our customers.”

An innovative mentoring process helps CTGL cultivate a diverse management team. Each of the 15 members of the Global Lubricants Leadership Team mentors up to three visibly or globally diverse employees. The goal is to increase the number of diverse candidates for leadership positions around the world, while also providing those leaders continued support to ensure that they, as well as the business, succeed.

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may occur in the case of affirmative action . The question regarding affirmative action is not necessarily whether a person has a right to fair process in connection with employment but instead whether one has a right to the job in the first place. Does one person deserve a position more than another person? For instance, efforts to encourage greater diversity may also be seen as a form of “reverse discrimi- nation”: discrimination against those traditionally considered to be in power or the majority, such as white men. A business that intentionally seeks to hire a candi- date from an underrepresented group might be seen as discriminating against white males, for example.

The arguments on both sides of this issue have a tendency towards emotional persuasion. Imagine you are hiring a social worker to serve an overwhelmingly African American community that is currently facing issues, among others, of teen pregnancy. Not only might you argue that you want to hire someone who is African American; you might also want a female social worker who might be bet- ter able to speak with the teenage women in that community. On the other hand, in front of you is a 40-year-old white male with a master’s degree from an extraordi- narily valuable program. He has years of experience in the field and in fact has an adopted African American daughter himself. He claims he can handle the job. In fact, he claims he deserves the job. Does he? Does it matter whether he deserves it, has a right to the job? Assume you still want the younger African American woman you know is next on your interview list. What is the fairest decision? Fair to whom? Fairest to the young women of your community, to the applicants you are interviewing, or to other stakeholders? How should you decide? What will be the consequences of your decision?

Diversity issues raise other less apparent problems. For example, consider a report by the U.S. Commission on Civil Rights that addresses the unique pre- dicament of Asian Americans. The report documents widespread discrimination against Asian Americans, who have long been seen as having escaped the national origin barriers that face other cultures. The report contends that the typical Asian stereotype of being hardworking, intelligent, and successful is actually a detri- ment to Asian Americans. This stereotype results in the problems of overlook- ing poor Asians and preventing successful Asian Americans from becoming more successful. It also places undue pressure on young Asian Americans to succeed in school, and it discredits other minorities by arguing that “if Asian Americans can succeed, so can other minorities.” 24 In an article highlighting the report, Fortune magazine contends that the problem is really that the commission is “being driven crazy by the fact that Asian Americans have been succeeding essentially without the benefi t of affi rmative action. The ultimate problem is not that they may make other minorities look bad—it is that they are making the civil rights bureaucracy look irrelevant.” 25 Some theorists argue that formal affirmative action measures have often served to create a greater divide rather than to draw people closer.

Let us take a closer look at affirmative action to explore the ethical issues it raises. The term affi rmative action refers to a policy or a program that tries to respond to instances of past discrimination by implementing proactive measures to ensure equal opportunity today. It may take the form of intentional inclusion of previously excluded groups in employment, education, or other environments.

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The use of affirmative action policies in both business and universities has been controversial for decades. (For the latest facts and figures, see the Reality Checks that follow.) In its first discussion of affirmative action in employment, the U.S. Supreme Court found that employers could intentionally include minorities (and thereby exclude others) in order to redress past wrongs. However, the holding was not without restrictions, which have caused confusion. Even today, the law is not clear, and we must turn to values systems to provide direction, which we will discuss shortly.

Affirmative action arises in the workplace in three ways. The first way is through legal requirements. Much of the law relating to affirmative action applies only to about 20 percent of the workforce, however: those employees of federal contrac- tors with 50 or more employees who are subject to Executive Order 11246, which requires affirmative action efforts to ensure equal opportunity. Where Executive Order 11246 does not apply, courts may also require what is termed “judicial affir- mative action” in order to remedy a finding of past discrimination. A third form of affirmative action involves voluntary affirmative action plans employers undertake to overcome barriers to equal opportunity. These might include training plans and programs, focused recruiting activity, or the elimination of discrimination that might be caused by hiring criteria that exclude a particular group. A demonstrated under- representation of a particular group or a finding of past discrimination is required to justify affirmative action efforts under either of these latter two options.

After a number of legal opinions, employers are left with some basic guide- lines for creating these programs and policies. Consider how the following legal constraints to an affirmative action program are in line with deontological and teleological frameworks that also support ethical decision making:

1. The affirmative action efforts or policy may not unnecessarily infringe upon the majority employees’ rights or create an absolute bar to their advancement.

2. The affirmative action effort or policy may not set aside any positions for women or minorities and may not be construed as quotas to be met.

3. It should unsettle no legitimate, firmly rooted expectation of employees.

4. It should be only temporary in that it is for the purpose of attaining, not main- taining, a balanced workforce.

5. It should represent a minimal intrusion into the legitimate, settled expectations of other employees.

Opponents to affirmative action contend that the efforts do more harm than good, that affirmative action creates ill will and poor morale among workforces. They argue that it translates into current punishment of past wrongs and therefore is inap- propriately placed because those who “pay” for the wrongs are unfairly burdened and should not bear the responsibility for the acts of others. Not only white males make this claim. Ward Connerly, an African American regent of the University of California, discussed affirmative action during a 60 Minutes interview and stated, “Black Americans are not hobbled by chains any longer. We’re free to compete. We’re capable of competing. It is an absolute insult to suggest that we can’t.”

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In its first ruling on this issue in more than a decade, the Supreme Court addressed affirmative action again through a case of “reverse discrimination” in 2003. While this particular case involved university admissions, American busi- ness was a stakeholder in the case as well. The University of Michigan Law School relied on an admissions policy that took into account the ability of each applicant to contribute to the school’s social and intellectual life. As part of this criterion, the school considered the applicant’s race, on the assumption that a diverse stu- dent body would contribute to the goals of the law school and that a critical mass of minority students was required to accomplish that goal. Thus, although scores from LSAT tests, undergraduate college grades, letters of recommendation, and other traditional factors were primarily used to grant admission, an applicant’s race was also a factor. Two white females who were denied admission brought the

According to the U.S. Census, 23 percent of the workforce is minority, up from 10.7 percent in 1964.

In 2003, white women’s median weekly earnings were 76 percent those of white men. Black wom- en’s earnings were 66 percent of the earnings of white men, and Latina women’s earnings were 55 percent of white men’s earnings.

Black women with bachelor’s degrees make only $1,545 more per year than white males who have only completed high school.

In an important longitudinal study of black and white women ages 34 to 44, only one-fi fth of the gap between their wages could be explained by education and experience. The study found that while women are segregated into lower-paying jobs, the impact is greater on black women than white women.

Research indicates that as the percentage of fe- males and the percentage of minorities in a job increases, average pay falls, even when all other factors are held steady.

Black men with professional degrees receive 79 percent of the salary paid to white men with the same degrees and comparable jobs. Black women earn 60 percent.

A study conducted by the U.S. Department of Labor found that women and minorities have made more progress breaking through the glass

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ceiling at smaller companies. Women comprise 25 percent of the managers and corporate offi cers in smaller establishments, while minorities rep- resent 10 percent. But among Fortune 500 com- panies, women held 18 percent of the managerial jobs, with minorities holding 7 percent.

The federal Glass Ceiling Commission found that white women made up close to half the work- force, but held only 5 percent of the senior level jobs in corporations. Blacks and other minorities account for less than 3 percent of top jobs (vice president and above).

Cecelia Conrad, associate professor of econom- ics at Barnard College in New York, examined whether affi rmative action plans had hurt worker productivity. She found “no evidence that there has been any decline in productivity due to af- firmative action.” She also found no evidence of improved productivity due to affi rmative action.

A study of Standard & Poor’s 500 companies found fi rms that broke barriers for women and minorities reported stock market records nearly 2.5 times better than comparable companies that took no action.

Source: D. Bennett-Alexander and L. Hartman, Employment Law for Business, 5th ed. (McGraw-Hill/Irwin: Burr Ridge, IL 2005), p. 186. Copyright © 2006 by The McGraw-Hill Companies, Inc. Reprinted by permission of the publisher.

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lawsuit, arguing that admission of minority students with lower grades and test scores violated their rights to equal treatment.

General Motors Corporation filed an amicus curiae (“friend of the court”) brief in support of the law school’s admission policy. By doing so, GM went out of its way at great expense to identify itself as a business stakeholder and argue publicly in support of affirmative action. In its brief, GM claimed that the need to ensure a racially and ethnically diverse student body was a compelling reason to support affirmative action policies. GM claimed that “the future of American business and, in some measure, of the American economy depends on it.” In its own busi- ness experience, “only a well educated, diverse workforce, comprising people who have learned to work productively and creatively with individuals from a multitude of races and ethnic, religious, and cultural backgrounds, can maintain America’s competitiveness in the increasingly diverse and interconnected world economy.” Prohibiting affirmative action likely “would reduce racial and ethnic diversity in the pool of employment candidates from which the nation’s businesses can draw their future leaders, impeding businesses’ own efforts to achieve and obtain the manifold benefits of diversity in the managerial levels of their work forces.”26

The court seemed to agree.

[D]iminishing the force of such stereotypes is both a crucial part of the Law School’s mission, and one that it cannot accomplish with only token numbers of minority students. Just as growing up in a particular region or having particular professional experiences is likely to affect an individual’s views, so too is one’s own, unique experience of being a racial minority in a society, like our own, in which race unfortunately still matters. The Law School has determined, based on its experience and expertise, that a “critical mass” of underrepresented minorities is necessary to further its compelling interest in securing the educational benefits of a diverse student body. 27

Do you believe that a diverse student body contributes to the ability of a school to accomplish its educational mission? Should the law prohibit, allow, or require affirmative action programs? Would General Motors be ethically correct in adopting a similar affirmative action hiring policy? Can you think of cases in which an employee’s race or ethnic background would be a qualification—or a disqualification—for employment?

Some white males may feel that they under siege by the forces of affi rmative action and multiculturalism. Still, Newsweek argues that being a white man remains a very comfortable role in contemporary America:

But is the white male truly an endangered species, or is he just being a jerk? It’s still a statistical piece of cake being a white man, at least in comparison with

being anything else. White males make up just 39.2 percent of the population, yet they account for 82.5 percent of the Forbes 400 (folks worth at least $265 million), 77 percent of Congress, 92 percent of state governors, 70 percent of tenured college faculty, almost 90 percent of daily-newspaper editors, 77 percent of TV news directors.

Reality Check The White Male as Endangered Species?

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In the 2003 class action lawsuit against Abercrombie & Fitch, a settlement agreement was reached between A&F and more than 10,000 claimants who were Latino, African American, Asian American, and female applicants and employees of the company. Under the settlement, A&F agreed to pay claims ranging from several hundred dollars to thousands of dollars, depending on the claimant’s particular damages and the extent to which they contributed to the prosecution of the case for a total of $50 million, including attorneys’ fees. In addition, A&F also is required to institute policies and programs to promote diversity among its workforce and to prevent discrimination based on race or gender.

The following additional elements of the settlement agreement are important because they were included in order to promote diversity in A&F’s workforce. Consider whether any of these elements might have helped A&F to avoid the challenging circumstances described at the beginning of this chapter. If it had instituted some of these prior to the T-shirt situation, maybe it would not have found itself in that hot water:

“Benchmarks” for hiring and promotion of women, Latinos, African Americans, and Asian Americans (goals, rather than quotas). A prohibition on targeting fraternities, sororities, or specific colleges for recruit- ment purposes. Advertising available positions in publications that target minorities of both genders. A new Office of Diversity with its own vice president, responsible for reporting to the CEO on Abercrombie’s progress toward fair employment practices. Hiring 25 recruiters who will focus on and seek women and minority employees. Equal Employment Opportunity (EEO) and Diversity Training for all employees with hiring authority. Revision of managers’ performance evaluations, making progress toward diver- sity goals a factor in their bonuses and compensation. A new internal complaint procedure. Marketing materials that will reflect diversity by including members of minority racial and ethnic groups.28

Since the time of the settlement and in partial satisfaction of it, A&F has launched a new human resources campaign, “Diversity is who we are.” Information about the campaign can be found at A&F’s human resources general Web site at http://www.abercrombie.com/anf/hr/jobs/index2.html. The diversity link on the Web site includes photographs of multiracial couples rather than its traditional “American classic” look, images of people of color, and text from the chairman that explains, “Diversity and inclusion are key to our organization’s success. We are determined to have a diverse culture, throughout our organization, that benefits from the perspectives of each individual.” Ironically, the main “job opportunities” link on the human resources Web site continues to maintain the standard “American classic” imagery more traditional to A&F’s original style.

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Opening Decision Point Revisited Abercrombie & Fitch: Image Consciousness?

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When one explores the impact of the T-shirt controversy it is interesting to con- sider both sides of the stakeholder opinions. Though one side expressed emotional pain and derided the perpetuation of historic discrimination, others felt that people have become too thin-skinned and that, as a society, we have moved beyond these issues to a point where poking fun at stereotypes is acceptable, hence A&F’s response. One of the values in a diverse workforce is the ability to weigh varying stakeholder perspectives. While one group might consider a marketing campaign to be “poking fun,” another might be brutally pained by the mockery. A greater diversity among decision makers certainly does not guarantee that all perspectives are represented, but it does ensure that a broader range of opinions might be considered.

A&F might benefit from a broader range of opinions on a variety of matters. In recent years, it has drawn criticism from Mothers Against Drunk Driving for its “Drinking 101” directions for “creative drinking” in its catalogs aimed at college students and from several family-oriented organizations for its children’s thong underwear with the words “eye candy” and “wink wink” printed on the front. With headlines such as “Abercrombie Criticized for Sexy Undies,”29 perhaps A&F again misjudged its audience. A&F responded that “the underwear for young girls was created with the intent to be lighthearted and cute,” and placed any misunderstanding “purely in the eye of the beholder.”

Maya confides in her friend and colleague, Alicia, “My husband Gene is very sick. I haven’t shared this with anyone else at work because I didn’t want them to think I couldn’t manage my responsibilities. He was diagnosed last year with progressive Parkinson’s and I thought it would move slowly, and that I could handle everything. Believe me, I am trying to keep everything under control, but our home life is just overwhelming me already. You couldn’t imagine how hard this is—physically and emo- tionally—plus there’s the added pressure of keeping it under wraps at work. You know they’ll start diminishing my role on those larger projects if they knew my attention might be diverted, and Gene and I just can’t risk the financial instability that might cause. I really appreciate being able to talk to you. I had to get this off my chest, and I knew I could trust you.” Alicia offered her shoulder and told Maya that she could count on her to cover for her, if need be, or to support her in any way she needed. Three weeks later, Alicia and Maya are separately called into the president’s office and told that they are both being considered for a more senior-level position. This new position would require a great commitment of both time and energy and would involve taking on a large number of subordinates for mentoring and development. Both women express a strong interest in the position and are told that they will learn of the president’s deci- sion within two weeks. What should Alicia do with the information Maya gave her, if anything? Notwithstanding your response to the previous question, if Alicia chooses to inform the president of Maya’s current situation, would you consider that action to be wrong, unethical? If you were the president in this current scenario, what could you do to impact the corporate culture in order to ensure that your preferred result in this dilemma occurred in the future?

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Review the discussion about global labor challenges, explore any additional resources (Web sites or otherwise), and offer your conclusions. In particular, which arguments do you find the most or least persuasive? Are you in favor of greater restrictions and regulations of MNCs and the treatment of their workforces, or would you advocate a more hands-off approach (sometimes described inappropriately as “pro-sweatshops”)? Support your conclusions.

We can distinguish due process from just cause in the following way: Imagine a com- pany wanted to abandon the arbitrary nature of employment at will and ensure that its employees were treated fairly in any termination decision. Can you imagine how the employment environment in that firm might be different than in other firms? One approach would be to specify the acceptable reasons for terminating an employee. Obvi- ous candidates would include absenteeism, incompetent job performance, theft, fraud, and economic necessity. This approach might also identify unacceptable reasons for dismissal. Such a policy would be identified as a “just cause” practice, since it defines the factors that would justify dismissing an employee for cause. But creating such a list could be a challenge in that one would have to know beforehand all possible reasons for firing someone. As the common law clearly shows, one cannot anticipate all future ways in which something unjust could occur. As a result, a due process policy might be created to complement, or substitute for, a just cause policy. A policy guaranteeing due process, for example, would outline procedures that must be followed before an employee can be dismissed. The process itself is what determines a just dismissal. If an employer followed the process, the decision would be considered just; if the process was violated, then dismissal would be considered unjust. Such procedures might include regular written performance appraisals, prior warnings, documentation, probationary periods, rights to appeal, or response to accusations. Can you imagine other ways in which this hypothetical firm might change standard processes to ensure fairness?

What are the key facts relevant to issues of due process and fairness?

What are the ethical issues involved in your decision and implementation?

Who are the stakeholders involved in your decision?

What alternatives are available to you?

How would each of your alternatives affect each of the stakeholders you have identi- fied?

Where might you look for additional guidance to assist you in resolving this par- ticular dilemma?

What is the difference in your mind, and in your common usage, between a perception, a generalization, and a stereotype? Can you give an example of each? After doing so, go to the Web and find dictionary-equivalent definitions of the terms to determine whether your common understanding is the correct one. Are each or all consistently unethical judgments or are they sometimes or always ethically justified in their use and imple- mentation? Under what conditions?

A particular research study provides some evidence that those born between 1979 and 1994 are perceived as “impatient, self-serving, disloyal, unable to delay gratification and, in short, feeling that they are entitled to everything without working for it.” The study dubs this group the “entitlement generation.” Do you know people born during those years? Is this true generally or would you consider the perception instead a stereo- type? From where do you think it stems?

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As a result of rising health care costs and the challenge to contain them, companies are trying to encourage employees to take better care of themselves, and some are even penalizing employees if they do not. One company, AstraZeneca, increased employees’ health-insurance premium by $50 a month for each month they failed to complete an online health-risk assessment tool that asked for lifestyle details, then offered recom- mendations on ways live a more healthy lifestyle. In 2006, an internal Wal-Mart Stores Inc. memo was leaked publicly that suggested that it cut its health care costs by dis- couraging unhealthy people from applying for jobs. What do you think of businesses’ attempts to decrease health care costs by helping employees to become healthier? What are the ethical issues associated with a firm’s choice to cut health care costs by eliminat- ing people who are unhealthy? What rights, duties, responsibilities, and consequences does this strategy imply? Do you think people who don’t take care of themselves should be responsible for their increased health care costs? How would you feel personally if your past health conditions and current health practices were a part of an employment application?

You run a small consulting business that serves a relatively diverse community and have 24 employees in professional positions. You are not subject to Executive Order 11246. You are concerned that, of the employees in professional positions, your workplace has only one African American, no other employees of color, and three women. At this time, your upper-level management—the top six executives and yourself—are all white males. On the other hand, you have 15 support staff (secretaries and other clerical work- ers), of whom 14 are women and 11 are either African American or Latino.

You would very much like to better represent the community in which you do business and you believe a diverse workforce has significant business benefits. You therefore decide to institute a program that will increase the numbers of minorities and women in professional positions as soon as possible. Is this permissible? Do you have all the relevant facts you will need to answer this question? What steps will you undertake in your plan to increase these proportions and what pitfalls must you avoid?

You are a senior global human resources manager for a large apparel retailer that pur- chases goods from all over the world. The media have focused a great deal of attention on the conditions of your suppliers’ workplaces and, for myriad reasons including a strong commitment to your values-based mission, as well as a concern for your reputa- tion, you are paying close attention to the wages paid to the workers who construct your clothing. Your suppliers in several locations have agreed to talk with you about devel- oping a policy that would apply throughout your operations—now and in the future, wherever you plan to do business—and would impose a minimum wage requirement for all factory workers. You begin to explore some of the resources publicly available to you, such as www.globalexchange.org , www.workersrights.org , www.fairlabor.org , and www.irrc.org , to find out what other firms are doing and what labor advocates recommend in terms of language for policies such as these. You explore Nike’s Web site at www.nikebiz.com , http://www.adidas-group.com/en/home/welcome.asp , and others. Now it is time to begin constructing your own policy. What will you include, how specific will you make this policy, how will you determine what will be the “living wage” in each region, and what elements will it contain? Please draft a policy for your company on implementing a living wage worldwide.

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Key Terms

affirmative action, p. 215 child labor, p. 207 discrimination, p. 210 diversity, p. 212 downsize, p. 195

due process, p. 193 employment at will (EAW), p. 193 just cause, p. 194 multiculturalism, p. 213

OSHA, p. 203 reverse discrimination, p. 215 sweatshops, p. 205

After reading this chapter, you should have a clear understanding of the following Key Terms. The page numbers refer to the point at which they were discussed in the chapter. For a more complete definition, please see the Glossary.

1. Walker Information, “Committed Employees Make Your Business Work,” Employee Relationship Report (1999) http://www.walkerinfo.com/products/err/ee_study.cfm.

2. Jeffrey Pfeffer,The Human Equation: Building Profi ts by Putting People First (Bos- ton, MA.: Harvard University Press, 1998).

3. Neal Ashkanasy and Catherine Daus, “Emotion in the Workplace,” Academy of Man- agement Executive 16, no. 1 (2002), p. 76.

4. Payne v. Western & A.A.R. Co., 81 Tenn. 507 (1884).

5. John A. Challenger, “Downsizing: The Better Ways,” Ethikos (January/February 2002), p. 7.

6. Craig Karmin, “Off-shoring Can Generate Jobs in the U.S.,” The Wall Street Journal, March 16, 2004.

7. D. Arnold and L. Hartman, “Worker Rights and Low Wage Industrialization, How to Avoid Sweatshops,” Human Rights Quarterly, vol. 28, no. 3 (August 2006), pp. 676–700.

8. Denis G. Arnold and Norman E. Bowie, “Sweatshops and Respect for Persons,” Busi- ness Ethics Quarterly 221 (2003), pp. 223–224, cited in D. Arnold and L. Hartman, “Worker Rights.”

9. L. Hartman, B. Shaw, R. Stevenson, “Exploring the Ethics and Economics of Global Labor Standards: A Challenge to Integrated Social Contract Theory,” Business Ethics Quarterly, 13, no. 2 (2003), pp. 193–220.

10. Kebebew Ashagrie,“Statistics on Working Children and Hazardous Child Labor in Brief” (Geneva: ILO, 1998), (accessed July 29, 2006) at http://www.ilo.org/public/ english/standards/ipec/simpoc/stats/child/stats.htm.

11. International Labour Office, Every Child Counts (Geneva: International Labour Or- ganization, 2002), accessed July 29, 2006, at http://www.ilo.org/public/english/stand- ards/ipec/simpoc/others/globalest.pdf.

12. International Labour Organization, World Employment Report 1998-1999 (Geneva: International Labour Organization, 1999).

13. World Health Organization, Children at Work: Special Health Risks, Technical Report Series No. 756 (Geneva: International Labour Organization, 1987); K. Satyanarayan et al., “Effect of Early Childhood Nutrition and Child Labour on Growth and Adult Nutritional Status of Rural Indian Boys around Hyderabad,” Human Nutrition: Clini- cal Nutrition, no. 40 C (1986).

14. World Health Organization, Children at Work, infra, note 13.

15. See Lammy Betten, International Labor Law (1993), p. 316, which notes that child labor legislation may lead to a movement of child labor from the formal to the infor-

EndnotesEndnotes

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mal sectors of the economy. See also Ministry of Labour, Manpower and Overseas Pakistanis & SEBCON (Pvt) Ltd., Qualitative Survey on Child Labour in Pakistan (Islamabad: International Labour Organization/OPEC, 1996) The ILO study in Paki- stan evidences that, among the child labourers interviewed, 72 percent had no access to education at all. Alan R. Myerson, “In Principle, a Case for More ‘Sweatshops,” The New York Times (June 22, 1997) (online version: http://www.ncpa.org/pd/pdint152. html); “Labor Secretary Herman Speaks Out against Child Labor,”Apparel Industry Magazine 58, no. 11 (November 1997), p. 12 [Mohammed Hafizul Islam Chowdhury, an apparel manufacturer from Bangladesh, asks, “Why are Americans against child labor? It’s good in my country because it keeps children off the streets and out of pros- titution.”]; and Stephen Golub, “Are International Labor Standards Needed to Prevent Social Dumping?”Finance & Development (December 1997), pp. 20, 22, http://www. imf.org/external/pubs/ft/fandd/1997/12/pdf/golub.pdf.

16. However, some advocacy groups fail to consider all perspectives. For example, the Global Reporting Initiative’s discussion on its Child Labour Indicators fails to take into account the impact of the termination of children beyond their removal from the workplace.

17. Richard A. Posner, Economic Analysis of Law (New York: Aspen, 2002), p. 616.

18. EEOC, “Sexual Harassment” (2006), http://www.eeoc.gov/types/sexual_harassment. html.

19. Marianne Bertrand and Sendhil Millainathan, “Are Emily and Brendan More Employ- able than Lakisha and Jamal?” University of Chicago, Graduate School of Business, unpublished paper, November 18, 2002.

20. Peggy McIntosh, “White Privilege: Unpacking the Invisible Knapsack,” Peace and Freedom (July/August 1989), pp. 10–12.

21. Good Morning America, “Powerfully Nice,” abcnews.com. July 16, 2001.

22. “Diversity Policies Have Positive Impact on Company Business Performance,” New York Times Company Press Release, February 13, 2003.

23. Business in the Community, “Workplace,” http://www.bitc.org.uk/resources/research/ statbank/workplace/index.html.

24. “Up from Inscrutable,” Fortune, April 6, 1992, p. 20.

25. “Up from Inscrutable,” infra, note 24.

26. General Motors, “Brief of General Motors as Amicus Curiae in support of Defend- ants” in Gratz v. Bollinger, 539 U.S. 244 (2003).

27. Grutter v. Bollinger 539 U.S. 306 (2003).

28. The actual consent decree (legal term for a settlement agreement) can be accessed at http://www.afjustice.com/pdf/20050422_consent_decree.pdf.

29. CNN Money (May 28, 2002), http://money.cnn.com/2002/05/22/news/companies/ abercrombie/.

Reading 6-1: “Worker Rights and Low Wage Industrialization: How to Avoid Sweatshops,” by Denis G. Arnold & Laura P. Hartman, p. 225.

Reading 6-2: “Women in the Workplace: Freedom of Choice or Freedom from Choice?” by Tara J. Radin, p. 235.

Reading 6-3: “Employment-at-Will, Employee Rights, and Future Directions for Employment,” by Tara J. Radin and Patricia H. Werhane, p. 240.

Readings

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Worker Rights and Low Wage Industrialization: How to Avoid Sweatshops Denis G. Arnold and Laura P. Hartman

Abstract

Disputes concerning global labor practices are at the core of contemporary debates regard- ing globalization. Critics have charged multinational enterprises with the unjust exploi- tation of workers in the developing world. In response, some economists and “classical liberals” have argued that these criticisms are grounded in a naïve understanding of global economics. They contend instead that sweatshops constitute an inevitable and essential feature of economic development. To the contrary, we argue that there are persuasive theo- retical and empirical reasons for rejecting the arguments of these defenders of sweatshops. In particular, we argue that respecting workers entails an obligation to adhere to local labor laws, and we demonstrate that it is feasible for multinational corporations (MNCs) to pro- vide decent working conditions and fair wages to workers. The main conclusion of this essay is that there are compelling ethical and strategic reasons for MNCs to embrace vol- untary codes of conduct.

I. Introduction

The use of global sweatshops for the manufacture of consumer goods is an important feature of contemporary debates concerning economic globalization. 1 On university cam- puses throughout the United States, student activists have successfully lobbied admin- istrators to require that manufacturers of university-licensed apparel adhere to codes of conduct that protect factory workers from unjust exploitation. Human rights organizations and unions have led boycotts and have waged media campaigns against companies that they believe unjustly exploit factory workers in the interest of excessive profits. Consum- ers are becoming increasingly aware of the debate and are demanding changes to create greater alignment with the recommendations of intergovernmental organizations such as the International Labour Organization. Partially in response to such critics and inquiries, companies such as Nike and the Gap have made significant efforts to use their leverage to eliminate the worst forms of worker abuses from their contract factories. Meanwhile, some economists and proponents of “classical liberalism” wage a campaign of their own, arguing that these criticisms are grounded in a naïve understanding of global economics. They contend instead that not only do sweatshops constitute an inevitable and essential feature of economic development, but they also benefit the world’s poor.

This essay provides an overview of arguments used to defend the existence and contin- ued use of sweatshops. Section II argues that multinational corporations (MNCs) have an ethical obligation to respect the rights of their employees and contract workers. The next section argues that defenders of sweatshops fail to appreciate the range of ethical issues concerning working conditions. In particular, respecting workers entails an obligation to adhere to local labor laws, and it is feasible for MNCs to provide decent working conditions and fair wages to workers. Section IV argues that voluntarily improving legal compliance, working conditions, and wages will not inevitably lead to negative consequences. Section V

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argues that MNCs have good strategic reasons for embracing voluntary codes of conduct. The essay concludes that there are compelling ethical and strategic reasons for MNCs to respect local labor laws, to voluntarily improve working conditions, and to pay workers a living wage in their global factories.

II. The Case for Sweatshops

Many individuals who are concerned with the welfare of workers in developing nations never theless disagree with the conclusion that sweatshop conditions should be improved. These individuals argue, with varying degrees of sophistication, that improving sweatshop conditions will result in greater harm than good. They point out that the exploitation of cheap labor supplies allows developing countries to expand export activities and to improve their economies. This economic growth creates more jobs, causing the labor market to tighten, which in turn forces companies to improve conditions in order to attract additional work- ers. Though an unpopular sentiment with the general consuming public, many economists argue that the maintenance of sweatshop conditions is well supported by economic theory. Furthermore, proponents of sweatshops argue that people work in sweatshop conditions because it is the most rational means available to them for furthering their own ends. 2

Frequently, these arguments are supplemented by the claim that the views of North American and European critics of sweatshops are simply naïve, or worse, their views are grounded merely in an aesthetic distaste for sweatshops. The defenders of sweatshops argue that, if these critics would only be less self-indulgent, they would recognize the positive role that sweatshops play in improving the lives of workers in the developing world. The follow- ing passages are typical of the arguments deployed by those who defend sweatshops:

I have come to feel that campaigns against sweatshops are often counterproductive,

harming the very Third World citizens that they are intended to help. The effect of these

campaigns is to be twofold. First, in the short term they clearly raise the condition at exist-

ing factories producing branded merchandise for companies like Nike. Second, they raise

labor costs and thus encourage mechanization, reducing the number of employees needed

in the factories. 3

[H]igher wages and improved labor standards are not free. After all, the critics themselves

attack companies for chasing cheap labor. It follows that, if labor in developing countries

is made more expensive (say, as the result of pressures by critics), then those countries will

receive less foreign investment, and fewer jobs will be created there. Imposing higher wages

may deprive these countries of the one comparative advantage that they enjoy, namely low-

cost labor. 4

You may say that the wretched of the earth should not be forced to serve as hewers of wood,

drawers of water, and sewers of sneakers for the affluent. But what is the alternative? . . .

Should their own governments provide more social justice? Of course—but they won’t, or at

least not because we tell them to. And as long as you have no realistic alternative to indus-

trialization based on low wages, to oppose it means that you are willing to deny desperately

poor people the best chance they have of progress for the sake of what amounts to an aes-

thetic standard—that is, the fact that you don’t like the idea of workers being paid a pittance

to supply rich Westerners with fashion items. 5

[Sweatshop critics seem] to ignore the well-established fact that multinational corporations

commonly pay their workers more on average in comparison to the prevailing market wage

for similar workers employed elsewhere in the economy. In cases where subcontracting is

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involved, workers are generally paid no less than the prevailing market wage. We are con-

cerned therefore that if MNCs are persuaded to pay even more to their apparel workers in

response to what the ongoing studies by the anti-sweatshop organizations may conclude are

appropriate wage levels, the net result would be shifts in employment that will worsen the

collective welfare of the very workers in poor countries who are supposed to be helped. 6

At least some of these claims are not baseless. For example, workers in these fac- tories often do make more than workers in the informal sectors of developing econo- mies. Furthermore, there is evidence that workers at these factories often make more than the going rate at nearby non-MNC factories. 7 In summary, defenders of sweatshops argue that, though one may not like some of what one sees in the labor conditions of developing nations, this is the market at work, and the market works to generate overall improvements for individuals and society as a whole. So, more, not fewer, sweatshops are needed.

There are, however, a number of perplexing features of pro-sweatshop arguments such as those outlined above. First, proponents of sweatshops seem to believe that MNCs and their contactors have no ethical obligations to workers in the developing world. Second, defenders of sweatshops typically do not distinguish between issues such as the health and safety conditions in the factories, the number of working hours of employees, compliance with local labor laws, wages, and benefits. Indeed, these defenders appear to assume that improvements in any one of these areas will result in inevitable and dire consequences for workers. However, such assumptions are unwarranted. Third, despite the significant scholarly accomplishments of some defenders of sweatshops, they have failed to provide detailed arguments or analyses in support of their conclusions. Instead they tend to invoke basic economic theory or “classical liberal” ideology as a basis for their claims. However, without more detailed, empirically grounded arguments that focus on the labor markets in specific economies and the practices of specific MNCs, their arguments are unpersua- sive. 8 Furthermore, there are good reasons for thinking that many of the arguments used to defend sweatshops are flawed on both theoretical and empirical grounds. Section III of this essay will defend these contrary conclusions.

III. The Ethical Obligations of Multinational Corporations

A remarkable feature of many of the arguments used to defend current conditions in sweat- shops is the assumption that MNC managers have no ethical obligations to employees in the developing world. Defenders of sweatshops appear to presume that the wages and working conditions in the factories of MNCs and their contractors are the inevitable out- come of global economic forces. 9 For example, economist Paul Krugman observes:

Workers in those shirt and sneaker factories are, inevitably, paid very little and expected to

endure terrible working conditions. I say “inevitably” because their employers are not in

business for their (or their workers’) health; they pay as little as possible, and that minimum

is determined by the other opportunities available to workers. 10

However, Krugman concedes too much. Insofar as business is a human activity, it is sub- ject to the same rationally justifiable moral norms as any other human activity. While it is true that MNC managers have an ethical obligation to make a profit for the owners of the enterprise, this obligation does not automatically trump other ethical obligations. Indeed,

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one of the primary tasks of an ethical manager is to balance the competing ethical obliga- tions of stakeholders. One core ethical obligation of MNC managers is to respect their employees. To fully respect a person, one must actively treat his or her humanity as an end, and not merely as a means to an end. This means that it is impermissible to treat persons like disposable tools. The Kantian basis for this claim is well established. Respecting people is an obligation that holds for every person qua person, whether in the personal realm or in the marketplace. Respecting people requires honoring their humanity; which is to say it requires treating them as ends in themselves. Thomas Hill argues that treating persons as ends in themselves requires supporting and developing certain human capaci- ties, including the capacity to act on reason; the capacity to act on the basis of prudence or efficiency; the capacity to set goals; the capacity to accept categorical imperatives; and the capacity to understand the world and reason abstractly. In their recent discussion of the doctrine of respect for persons as it applies to global sweatshops, Denis Arnold and Norman Bowie make several additions to the list. They argue that treating people as ends in themselves requires that MNC managers and their contractors ensure the physical well-being of employees and refrain from undermining the development of their rational and moral capacities. They argue that respecting workers in global factories requires that MNC factories, including contract factories, adhere to local labor laws; refrain from the use of coercion; provide decent working conditions; and provide wages above the overall poverty line for a forty-eight-hour work week.

The application of a Kantian approach to problems concerning poverty and economic development in underdeveloped countries is similar to the capabilities approach devel- oped by Amartya Sen. Sen has famously argued that development involves more than an increase in people’s incomes and the gross national product of the country. He argues that one must be concerned with certain basic human capabilities, the most important of which is freedom. Sen’s perspective is similar in important respects to the Kantian perspective because both are concerned with providing work that enhances the ability of workers to exercise core human capabilities. The United Nations utilizes both the Kantian view and the capabilities view as the dual theoretical foundation for its defense of human rights. Among the rights identified by the UN are freedom from injustice and violations of the rule of law; freedom to do decent work without exploitation; and the freedom to develop and realize one’s human potential. The UN argues that all global actors, including MNCs, have a moral obligation to respect basic human rights. This general approach to poverty and development has recently been embraced by the World Bank. The World Bank identified “crucial gaps” in its efforts to encourage development and eliminate poverty through mar- ket liberalization. In particular, it notes its previous failure to pay “adequate attention to the quality and sustainability of growth.” The World Bank now explicitly acknowledges that all major stakeholders have important roles to play in the process of promoting not merely economic growth, but sustainable economic growth that is sensitive to the needs of work- ers in developing nations. While holding that “[f]unctioning markets and liberalization are crucial” to poverty reduction, the World Bank acknowledges the “limits of the market” and the essential roles diverse stakeholders must play in the process. MNCs have significant interests in developing nations as sources of natural resources, inexpensive labor, and mar- kets for their goods and services. As such, the World Bank properly recognizes MNCs as stakeholders with important moral obligations in the global reform process. Furthermore, it is not just non-governmental organizations (NGOs) that hold this view. Those familiar with the practice of business recognize that the view that MNCs have an ethical obligation to respect workers in their global factories has long been accepted and practiced by a select number of MNCs, including Motorola and Levi Strauss.

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A second problematic feature of many of the arguments used to defend sweatshops is that they tend to blur the distinction between factories owned by MNCs and factories with which MNCs contract. Not all MNCs own their own factories; indeed, many MNCs use a substan- tial number of contractor factories to produce their products, and some use such contractors exclusively. Typically, employees of MNC contractor factories earn less than the employees of MNC-owned factories and work under more adverse conditions. Historically, most MNCs accepted responsibility only for that which fell within the boundaries of their own organiza- tions and specifically did not regard themselves as accountable for those particular labor abuses that occurred within the operations of their contractors. This original conception of global supply chain systems was the outgrowth of traditionally insular domestic contracting relationships. When North American and European MNCs did business domestically, they were bound to domestic laws, as were their contractors and other stakeholders. When they began to globalize, most MNC managers did not at first consider the need to be accountable for the actions of their contractors since that was not the case in their domestic business operations, where comprehensive and well-enforced legal systems were already in place. In addition, part of the allure of overseas contracts was a lower cost structure, in part the result of fewer legal requirements and lax regulatory regimes. This conception of a global supply chain system changed for some MNC managers as awareness grew regarding work- ing conditions in these factories and the lack of adequate legal protections for workers. The emerging alternative conception of supply chain systems involves a network of relationships among diverse stakeholders such as the MNCs, contractors, factory workers, NGOs, govern- ments, and consumers. Each of these entities contributes to shaping the social-political and economic environments in which the MNCs operate, and helps define the boundaries within which the MNCs consider and reach decisions regarding the labor challenges they face. At the core of this new conception of the supply chain system is the recognition by MNCs that they have ethical obligations regarding the practices of their contractors. Defenders of sweatshops have tended to ignore these changes in the global supply chain.

The justification for the claim that MNCs have ethical obligations regarding the prac- tices of their contractors is grounded in the moral claims discussed above, together with a recognition that the relationship of power between many MNCs and their contractors and suppliers is significantly imbalanced in favor of the MNCs. One researcher describes the relationship in the following way:

[A]s more and more developing countries have sought to establish export sectors, local manu-

facturers are locked in fierce competitive battles with one another. The resulting oversupply of

export factories allows U.S. companies to move from one supplier to another in search of the

lowest prices, quickest turnaround, highest quality and best delivery terms, weighted according

to the priorities of the company. In this context, large U.S. manufacturer-merchandisers and

retailers wield enormous power to dictate the price at which they will purchase goods. 11

MNCs that dictate the price at which they will purchase goods from contractors also have considerable influence regarding working conditions. In many cases, contract factory own- ers may not have the resources to improve working conditions and wages without assist- ance from the MNC. 12 Given this imbalance in power, MNC managers are well positioned to help ensure that the employees of its contractors are respected. In addition, MNCs can draw upon substantial economic resources, management expertise, and technical knowl- edge to assist their business partners in creating a respectful work environment.

Defenders of sweatshops tend to presume that there are only two choices: permit, or even encourage, existing sweatshops to maintain poor working conditions and wages in order to retain desperately needed jobs in developing economies, or mandate improvements

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in working conditions, allowing wages to drive up unemployment. As this essay will dis- cuss, this is a false presumption. There is a third option. Morally imaginative MNCs can voluntarily opt to improve the conditions in their global factories, without laying off work- ers, while remaining competitive within their industry.

* * * *

V. Sweatshop Economics

Contrary to the contentions of the defenders of sweatshops, voluntarily improving legal compliance, working conditions, and wages will not inevitably lead to the negative con- sequences they predict. First, with regard to the lowest paid formal sector wage earners in developing countries, the assumption that productivity is independent of wage levels is mistaken. The wage which, if reduced, would make the firm worse off because of a decrease in worker productivity is known as the efficiency wage. The most obvious ways in which wages affect productivity are captured by nutrition models. Put simply, work- ers whose minimum daily dietary requirements are met and who have basic non-food needs met will have more energy and better attitudes at work; will be less likely to come to work ill; and will be absent less frequently. In order to ensure that workers’ minimum daily caloric intake is met, it may be necessary to pay workers two to four times the amount necessary to purchase adequate food and health care for the employee. This is because the employer cannot prevent the worker from spending wages on food and health care for the employee’s family. 13 A second economic model emphasizes the gift-exchange nature of employment relations, as opposed to the pure market exchange of such relations. On this model, employers who compensate workers at rates significantly higher than the wages demanded by the market are seen as bestowing a gift on workers, who reciprocate with greater productivity and greater loyalty. Increased productivity and employee loyalty alone may offset the cost spent to respect workers’ basic rights through adherence to local labor laws, providing comparatively safe and healthy working conditions, and pay- ing workers a living wage.

Second, it is economically feasible for MNCs to raise wages and to improve working conditions in factories in developing economies without causing increases in unemploy- ment. MNCs may choose to improve wages and working conditions while maintaining existing employment levels. In cases where increased productivity and loyalty do not com- pletely offset increased labor costs, these costs may be passed on to consumers. A recent study of this issue found that

[l]arge mandated wage increases, as a feature of a decent labour standards regime in the

apparel production industry, could be financed through increases in retail prices—certainly

through price increases within the range that US consumers say they are willing to accept to

ensure ‘good’ working conditions in apparel production. 14

Increased labor cost may be offset by the value added to the good insofar as consumers demonstrate a preference for products produced under conditions in which the rights of workers are respected.

Third, it should also be noted that profit margins vary among products. For the manu- facturers of brand name retail goods, a significant increase in labor costs may be readily absorbed as an operating expense, as in the case of Nike. However, there may be cases where increased labor costs are not offset by greater productivity, where the increase in costs cannot be passed on to consumers, and where the increased costs cannot be readily absorbed as an operating expense. For example, manufacturers of generic goods with low

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profit margins may find it difficult to absorb the cost of increased labor expenses. In such cases, the added cost of labor may instead be balanced by internal cost-cutting measures. One set of obvious targets for expense reduction is the cost of supporting significant num- bers of home-country managers in the country of the supplier. While some presence may be necessary, it will often be more cost effective to employ host-country nationals in this capacity. Another attractive set of targets is executive perks. While such perks vary signifi – cantly among firms, it does appear morally inconsistent to argue that improving the welfare of the factory workers is cost prohibitive while executive perks remain substantial. Given the frequently fierce competition among the manufacturers of generic products targeted at cost-conscious consumers, it may be difficult for one retailer to remain competitive while raising prices to cover increased labor costs, while others do not. For this reason, industry- wide standards concerning labor practices may prove valuable as a way of distributing costs equitably. Finally, the cost may be passed on to the owners of the business enterprise via lower return on equity. In such cases, the costs of respecting workers must be regarded as a necessary condition of doing business. This point should not be problematic for any man- ager who recognizes the existence of basic human dignity. For insofar as one recognizes the dignity of workers qua persons, one has an obligation to respect that dignity.

VI. The Importance of Voluntary Codes

The best means by which to improve working conditions is through MNC adoption and implementation of voluntary codes of conduct. “Code of conduct” refers to the codification of a firm’s values as they are interpreted and applied to the workplaces in which the firm’s goods are produced. These codes are created voluntarily by MNCs and are not based on the laws of any one nation but are instead designed to help managers and suppliers embrace and implement a core set of values regarding the treatment of workers. These codes are intended to transcend cultural and geographical borders.

Sometimes the workplaces where the firm’s goods are produced are wholly-owned by the MNC but, more often than not, they are owned and managed by third-party suppliers. Given the power differential discussed earlier, the MNC often has significant influence over the contractor that enables them to require adherence to the MNC’s codes of conduct. Note that the mere drafting of a code of conduct is insufficient. Instead, it is the voluntary adoption and full-scale implementation of a code that is encouraged. A firm that merely produces a code without further action sends a message that the same lack of attention is all that is expected from its workers, suppliers, and other contractors. To the contrary, effective integration of a code throughout an organization’s culture requires that a firm hold its contractors to the same standard regarding respect for employees to which it holds itself.

The remainder of this section explains the significant strategic value a firm can expe- rience through the integration of a voluntary code of conduct for itself and its suppli- ers. Though this essay encourages an enlightened motivation for the development and integration of a code—one that respects and protects the basic rights of workers—this essay recognizes that some firms may simply proceed down this path on the assumption that cohesive, clear expectations about conduct and values through a code can support long-term business strategies and ultimately the firm’s bottom line. Firms might also be motivated as a result of intense media scrutiny or other external pressure, or as a deter- rent to the imposition of more stringent involuntary controls. Under any of these models, notwithstanding the basis or motivation for the code integration, the MNC as well as its suppliers and workers may still reap a benefit. However, a firm that undertakes code development and integration as part of a larger scheme of corporate global citizenship,

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and in an enlightened and concerted effort to recognize the rights of all workers involved in the production of its goods, is more likely to reap greater overall value from its effort than one that is limited to a basic adoption of the code itself in order to ensure positive bottom-line impact.

In her recent work on codes, Deborah Leipziger explains that effective codes can sup- port a firm in the short-term (during crisis management), mid-term (perhaps prevent a crisis from arising), and long-term (enhance stakeholder value). In particular, effective codes can:

Raise awareness about corporate responsibility within the company

Help companies to set strategies and objectives

Assist companies with implementation and control of values

Help companies avoid risk

Foster dialogue and partnerships between companies and key stakeholders and

Enhance utility and identity among divergent companies

These benefits are reinforced by research and are repeatedly articulated as valid, credible results of successful code implementation. For instance, in its report, “Creating a Workable Company Code of Ethics,” the Ethics Resource Center contends that “every organizations, regardless of size, focus or status, should have a code of conduct in place” for several rea- sons, including (1) communication with stakeholders and definition of desired behavior; (2) compliance with recent and anticipated legislation; (3) financial risk mitigation through a good faith effort to prevent illegal acts; and (4) benchmarks against which individual and organizational performance can be measured.

In recent years attempts have been made to measure the bottom-line impact of encour- aging ethical decision making and, in particular, the financial returns on the development and implementation of a code of conduct. Researchers have found that in emerging mar- kets, cost savings, productivity improvement, revenue growth, and access to markets were the most important business benefits of “sustainability activities”; and the role of codes of conduct in perpetuating these activities was found to be significant. Similarly, a landmark study found that firms that were ranked highest in terms of their records on a variety of social issues (including charitable contributions, community outreach programs, environ- mental performance, advancement of women, and promotion of minorities), which often find their foundations in codes of conduct, had greater financial performance as well. Financial performance was better in terms of operating income growth, sales-to-assets ratio, sales growth, return on equity, earnings-to-asset growth, return on investment, return on assets and asset growth.

In exploring the implementation of a voluntary code, research recently undertaken by the Human Rights Research and Education Centre shows that there are essentially five “generations” of issues of ethical and social responsibility dealt with in most business codes of conduct and corresponding management systems:

First generation: conflict of interest.

Second generation: commercial conduct.

Third generation: employee and other third-party concerns.

Fourth generation: community and environmental concerns.

Fifth generation: accountability and social justice .

The business case for codes of conduct is related most closely to the third genera- tion of issues and involves respect for employee rights as well as rights of others in direct

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relationship with the corporation: “[t]he business case for implementing these principles includes improved corporate relations, a motivated work force, and satisfied customers.” The threshold issue is to determine whether the presence of a code is an accurate indicator of genuine ethical commitment. The Institute of Business Ethics conducted a study to validate this supposition by reviewing “good practices” at a sample of UK companies. They evalu- ated “good practices” by looking at (a) a rating for risk management; and (b) a peer evalua- tion which included, for example, competent management, financial soundness, and quality of goods and services and found a positive relationship. The second stage of their research was to determine the relationship between ethical commitment and financial performance:

Regarding financial performance, it was found that those companies in the sample with a code of ethics had, over the period 1997–2001, out-performed a similar sized group who said they did not have a code.

Companies with a code of ethics generated significantly more economic added value and market added value in the years 1997–2000, than those without codes.

Companies with a code of ethics experienced far less P/E volatility over a four-year period than those without them. Other research has suggested that a stable P/E ratio tends to attract capital at below average cost; having a code may be said to be a signifi – cant indicator of consistent management.

This study gives credence to the assertion that “you do business ethically because it pays.” However, the most effective driver for maintaining a high level of integrity throughout the business is “because it is seen by the board, employees and other stakeholders to be a core value and therefore the right thing to do … a sustainable business is one which is well managed and which takes business ethics seriously.” Leaders of this type of business do not need any assurance that their approach to the way they do business will also enhance their profitability, because they know it to be true. The study concluded that “having a code . . . might, therefore, be said to be one hallmark of a well managed company.” Defenders of sweatshops have yet to take seriously the positive role that a carefully crafted and well enforced voluntary code of conduct can have on the success of MNCs.

VII. Conclusions

There are persuasive theoretical and practical reasons for rejecting the arguments of the defenders of sweatshops. In particular, there are compelling ethical and strategic reasons for MNCs to respect local labor laws, to voluntarily improve working conditions, and to pay workers a living wage in their global factories. The evidence shows that MNCs can respect the rights of workers without decreasing overall welfare. However, there remain important areas for further research. For example, how can smaller firms that purchase only a portion of a supplier factory’s production exert influence over that factory so that it adheres to the firm’s code of conduct? To what extent will industrywide codes of conduct support or hinder respect for the rights of workers? How can firms that ignore workers’ rights in the interest of economic efficiency best be identified and sanctioned? And how can those firms that actively seek to respect their workers best be identified and rewarded? These are some of the questions that remain to be taken up by scholars interested in enhanc- ing the welfare of the global workforce.

Source: D. Arnold and L. Hartman, “Worker Rights and Low Wage Industrialization: How to Avoid Sweatshops,” Human Rights Quarterly, vol. 28, no. 3 (August 2006), pp. 676–700. Reprinted by permission of Human Rights Quarterly and its publisher, the Johns Hopkins University Press.

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Notes

1. For the purposes of this paper, we define the term sweatshop as any workplace in which workers are typically subject to two or more of the following conditions: income for a 48 hour workweek less than the overall poverty rate for that country; systematic forced overtime; systematic health and safety risks due to negligence or the willful disregard of employee welfare; coercion; systematic deception that places workers at risk; and underpayment of earnings. For an historical overview of the development of modern sweatshops, see Ellen I. Rosen, Making Sweatshops: The Globalization of the U.S. Apparel Industry (Berkeley, CA: University of California Press, 2002). For a overview of the contemporary issues regarding sweatshops see Theodore H. Moran, Beyond Sweatshops: Foreign Direct Investment and Globalization in Developing Nations (Washington, DC: Brookings Institution, 2002).

2. No one in this debate advocates forced labor.

3. Nicholas D. Kristof, “Brutal Drive,” in Nicholas D. Kristof and Sheryl WuDunn, eds., Thunder from the East: Portrait of a Rising Asia (New York: Vintage Books 2000), p. 129.

4. Ian Maitland, “The Great Non-Debate over International Sweatshops,” reprinted in Tom L. Beauchamp and Norman E. Bowie, eds., Ethical Theory and Business, 7th ed. (Upper Saddle River, NJ: Prentice Hall, 2004), p. 587.

5. Paul Krugman, The Accidental Theorist and Other Dispatches from the Dismal Sci- ence (New York: W.W. Norton & Co. 1999), p. 85.

6. Academic Consortium on International Trade, Letter to University Presidents, 29 July 2000, available at http://www.fordschool.umich.edu/rsie/acit/Documents/Anti-Sweat- shopLetterPage.html. For a reply to this letter from academics with a different stance on sweatshops, see statement by Scholars Against Sweatshops, Oct. 2001, available at http://www.umass.edu/peri/sasl/.

7 Linda Lim, The Globalization Debate: Issues and Challenges (2001). It is important to note that wages at many MNC factories have risen only in response to critics of low wages. Thus, it may not be reasonable to point to particular MNC factories with fair wages as evidence that the critics of low wages are mistaken. Those wages may have been increased to their current levels mainly because of public criticism.

8. For example, the Academic Consortium on International Trade sent its well- publicized letter defending sweatshops to university presidents in September 2000. In the preamble to that letter it promises to provide policy statements and papers defend- ing sweatshops on its Web site. Four years later, the sum total of research presented on the ACIT Web site includes four newspaper opinion page pieces and six work- ing papers on general issues concerning globalization. None are detailed, empirically grounded arguments that focus on the labor markets in specific economies and the practices of specific MNCs or their contractors (the link to a promised paper on living wages is non-functional). The most prominent follow-up work to the ACIT letter by one of its signatories is the recent book by Jagdish Bhagwati, In Defense of Globali- zation (2005). This article responds in detail to many of his arguments concerning sweatshops.

9. At least this was true at the early stages of the recent debate over sweatshops. The responses of MNCs such as Nike, Adidas, the Gap, Mattel, and many others that began in the late 1990s, and continue to this day, make it difficult for anyone familiar with these changes in corporate policy to hold that the treatment of workers in the

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factories of MNCs and their suppliers in developing nations is merely at matter of economic forces.

10. Krugman, The Accidental Theorist, p. 83.

11. The Sweatshop Quandary: Corporate Responsibility on the Global Frontier, Pamela Varley, ed., p. 95.

12 Michael Santoro has defended a similar view concerning the duty of MNCs to ensure that their business partners respect employees by ensuring that human rights are not violated in the workplace. Santoro argues as follows: [M]ultinational corporations are morally responsible for the way their suppliers and subcontractors treat their workers. The applicable moral standard is similar to the legal doctrine of respondeat superior, according to which a principal is “vicariously liable” or responsible for the acts of its agent conducted in the course of the agency relationship. The classic example of this is the responsibility of employers for the acts of employees. Moreover, ignorance is no excuse. Firms must do whatever is required to become aware of what conditions are like in the factories of their suppliers and subcontractors, and thereby be able to assure them- selves and others that their business partners don’t mistreat those workers to provide a cheaper source of supply. Michael A. Santoro, Profi ts and Principles: Global Capital- ism and Human Rights in China (Ithaca, NY: Cornell University Press, 2000), p. 161.

14 Although it is possible to provide meals and health care for the employee at work as part of an overall compensation package.

15 Robert Pollin, et al., “Global Apparel Production and Sweatshop Labour: Can Raising Retail Prices Finance Living Wages?,” Cambridge J. Econ., vol. 28 (2004), pp. 153, 169.

Reading 6-2

Women in the Workplace: Freedom of Choice or Freedom from Choice? Tara J. Radin

Diversity in the workplace, particularly gender diversity, poses numerous challenges. For decades businesses have grappled with sexual harassment and gender discrimination and have established policies to deal with both. These issues, however, merely scratch the sur- face of the problems that women confront in the workplace. Getting women hired is merely a preliminary first step. What about once they are hired? How do we ensure that workplaces not merely allow women but actually accommodate and support them?

An often overlooked yet pressing problem involves entrenched corporate policies that can hinder the professional advancement of women. This is a problem for women seeking careers as well as for firms that risk the loss of considerable talent as a result of antiquated systems that do not adequately handle the increasingly diverse needs and circumstances of the workforce.

An episode of the once popular FOX television series Ally McBeal illustrates some of the ways in which women struggle in the workplace for recognition, respect, and rights. Numerous gender-based concerns arise as firms wrestle with the competing demands of women who work outside the home.

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The Partnership Track

In an episode of Ally McBeal entitled “Let’s Dance,” a woman sues the law firm where she worked for taking her off the partnership track. She had taken a leave of absence from the firm to have a child; after returning, she was no longer considered “partner material.” While it is important to recognize that this is simply an episode of a television show and that television does not always mirror reality, the segment does adeptly capture some of the challenges women confront in the workplace as they attempt to juggle the competing demands of motherhood and a career. Although this episode is set in the specific context of law firms, it translates well into other venues such as accounting firms, investment banks, and so on.

To understand the problem better, some background information on the partnership track is perhaps helpful. Individuals join law firms as associates, where they spend any- where from five to ten years (or more, depending upon region of country and size of fi rm) as junior and then senior associates before being considered for promotion to “partner.” Many businesses operate similarly. During this time, associates work long hours—it is not uncommon for them regularly to put in 60- to 80-hour weeks—with little glory. They are generally judged in terms of the number of billable hours—hours billed to specific clients for work done—they log each week. To bill 40 hours a week, a person must work up to twice that amount of time because of the time he or she spends in non-billable activities, such as general administrative tasks.

Serving as an associate is not glamorous. They often do a lot of research and writing behind the scenes. While the common perception is that lawyers spend a great deal of time arguing in court, the reality is that associates spend most of their time in the office. It is, in fact, generally considered a rare honor for an associate to be invited just to sit in the court with partners during litigation.

While partnership is never a guarantee, the terms of what is expected tend to be fairly clear. During the past decade, it has become increasingly difficult for associates to “make partner.” This is not a secret to associates (or to most entering law students, for that matter). As a result of the fierce competition for a limited number of openings, many associates move around a lot between firms, while others transition into corporate legal departments after acquiring several years of valuable, and valued, experience at law firms.

Despite the difficulties, “making partner” remains the goal for many associates. The chief reason for this is that it is only as “partner” that a member of the firm can share in the profits of the firm, assert authority, and exercise many of the legal abilities he or she has spent years developing. Once partner, he or she can meet with clients, try cases in court, and make pivotal decisions about the membership and direction of the fi rm.

From a financial perspective, the salaries of associates start high—well above six fig- ures in most of the larger cities in the United States—but they grow relatively modestly thereafter. In New York City, for example, associate salaries at large firms typically start at more than $120K a year; the salaries of senior associates can be double that. Although this might seem exorbitant, it is important to keep in mind the number of hours associates are working. The associate working 60 hours per week, even at $240k per year, is only making about $80 per hour.

Partners, on the other hand, are often making millions. Many associates are willing to invest excessive hours in their career because of the chance to make partner. Eliminating the possibility of partnership therefore represents a significant loss for the associate.

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Changes in the Workplace

In the Ally McBeal episode, the female plaintiff had been on partnership track prior to her maternity leave. Typical of associates, she joined the firm as a junior associate and worked alongside other associates for long hours in the office. She had performed equally well as, if not better than, her peers. She had received no complaints and, in fact, had been consid- ered a model employee.

When the plaintiff returned from maternity leave, things noticeably changed in terms of her work performance. It was not that she had a child—it was the resulting lack of prioriti- zation of her work—that caused concern at the firm. After she returned to work, her work was regarded as inferior to that done prior to her taking leave. While the quality of her work appeared consistent, the quantity of work and her manner of performing work were thought to have changed for the worse. Specifically, her level of billable hours decreased. She was still getting work done, but not as much as she had been prior to going on maternity leave. She claimed she was more efficient, but just was not putting in as much “face time” at the office. It appeared, too, that when she was at the office, she was often distracted and interrupted. She frequently received calls and pages, for or about her child, which demanded her attention and took her away from her work. The demands of motherhood also made her less predictable. It was not uncommon for her to arrive late or have to leave early to care for her child.

Concerns for the Firm

The combination of comparably low billable hours, recurring absences, and lack of depend- ability generated uneasiness on the part of the law firm. The firm was concerned about get- ting the high volume of work done and about making sure work was done properly—on time and with care. At the same time, the firm had an interest in maintaining some degree of internal equity. There was concern as to how not dealing with the plaintiff would affect other associates. Her absences meant that others had to pick up her slack. This resulted in a buildup of resentment that the firm considered necessary to address. To ignore the changes in her performance would risk setting a precedent that would be difficult to reverse; it would signal to other associates that such behavior was acceptable, which was not the case.

The plaintiff was cognizant of all these things and acknowledged the firm’s concerns. She nevertheless contended that she was still getting the work done. While she sometimes had to juggle her job-related responsibilities to attend to unexpected situations at home, she claimed that she took work home with her and was still able to handle everything she needed to do. The “distractions,” as others called them, were, in her view, simply part of motherhood. Moreover, she contended that firms must make allowances for mother- hood; otherwise, women are effectively prevented from pursuing careers. Valuing diver- sity demands an understanding of the need for flexibility in promotion criteria. It requires changing the policies set to uphold traditional family models that have the male working and the female at home with the child. Such models no longer reflect the norm—today both members of many couples work. Attempting to force working parents to adapt to out-dated models creates an unnecessary strain on both work and family life.

Interestingly, in this episode of Ally McBeal , another female attorney spoke up in defense of the firm. She countered the female plaintiff and asserted that women are not denied anything; rather, they are given a choice: motherhood or a career. She explained that she (the attorney) had confronted that choice and chosen a career instead of motherhood.

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Although it was a sacrifice for her, she made it freely. The woman at the law firm, in con- trast, chose motherhood; she must likewise accept the consequences of her choice.

Motherhood, Choice, and the Workplace

Herein lies the crux of the more challenging issues: Is motherhood a situation that demands such consequences? Should it be so?

As firms reengineered and reexamined practices for the 21 st century, they realized the extent to which diversity adds value to the workplace. Having a set of employees that reflects the diverse attributes of society enables firms to serve their constituents better. It puts them in closer touch with their stakeholders and gives them a more robust understand- ing of stakeholder concerns and considerations. Although such diversity extends beyond gender, gender is an attribute than cannot be ignored.

As women have entered the workplace in greater numbers during recent decades, the workplace has developed in unforeseen ways. Many of these developments have been posi- tive, but there have also been a wide range of challenges that have not been anticipated or resolved adequately. Chief among these is the double role that women must play as career persons and as mothers.

While firms might prefer that women treat motherhood as an option, the reality is that motherhood is a non-negotiable. Only females can serve as mothers by bearing children. This places an inherent restriction on women, couples, and families. If only the female can carry and give birth to the child, and if she or the couple wants to have a child, she must make sacrifices to do so. The personal sacrifices, such as those to her health, are inevitable. The question that remains, though, is whether the sacrifices to her career should also be considered inevitable.

The easy answer is, “Yes.” If a woman chooses to have a child, then she must accept the consequences of that choice. The child cannot raise itself. If she is not willing to hire some- one to take care of the child (or make other such arrangements), it is often assumed that she will serve as the primary caregiver—particularly since she has already had to take time off to give birth. This is all known to the woman before she chooses to give birth.

A common response is that either the man or the woman could serve as the primary caregiver. Many people argue that the problem exists between the couple. If a mother is upset because she is not able to pursue a career, she is focusing her energy in the wrong direction. Instead of pressuring the firm, she should work within the family to find another suitable caregiver, such as her husband or her parents.

Whether or not the woman chooses to remain the primary caregiver is not the pivotal issue, however. Today it seems that the more important question involves the role the firm plays in supporting or penalizing caregivers—male or female. Should we compel firms, morally if not legally, to be considerate of the responsibilities of their employees (who are also parents) to their children? Or should we continue to accept firms’ intentional blindness to the fact that employees are people—human beings—and, as such, they have connections outside the workplace that can affect their workplace performance?

Returning to the notion of motherhood as choice, is motherhood a choice? Do we want to treat motherhood as a choice similar to other daily choices: “Should I wear the red or blue shirt?” Interestingly, in law, motherhood is considered a right. The right to bear chil- dren is protected by the Constitution of the United States. Similarly, the right to work is protected. How, then, can we justify penalizing mothers in the workplace?

The typical firm answer is that women are not prohibited from working. If women are not able to rise within the firm, it is only because their external commitments inhibit their

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workplace performance. From the perspective of the firm, that is a personal problem, not a problem for the fi rm.

Interestingly, firms argue that they would be remiss in doing otherwise. Were they to make allowances for mothers, it would be unfair to nonmothers (men and women), and could potentially jeopardize other stakeholder interests. If a mother is not focused on her workplace responsibilities, then she could place firm business at risk. If a nonmother per- forms unsatisfactorily in the workplace, the firm punishes him or her, such as through reprimands, warnings, or even termination. Why, then, should a mother who performs similarly—such as through absences, tardiness, or distractedness—be rewarded?

The Problem

The problem is complex and goes beyond the simple choice a woman must make of whether or not to have a child. Forcing a woman to choose between her career aspirations and moth- erhood places her in a no-win situation. Moreover, it places society in a no-win situation. Workplaces are deprived of valuable members and families are stretched beyond reasona- bleness. It is not always financially an option for a parent to stay home. Life is expensive.

Our society feels the consequences of this tension. Women are waiting longer to have children. Firms are losing high-level employees on maternity leaves. And glass ceilings in many places, instead of being shattered, are becoming reinforced.

While there are benefits to having young mothers, there are also benefits to having more mature mothers. It can be argued that some of the consequences of firm behavior are positive, and helpful to the family unit in society. Whether these are positive or negative consequences is not the point. The point is, should we place our firms in the position of making such decisions for us?

In the Ally McBeal episode, the judge held that the plaintiff could not be denied part- nership. He ruled that a firm cannot punish motherhood, implicitly or explicitly. In this fictitious situation, at least, the judgment was that it is not for firms to make choices for individuals by placing unreasonable obstacles in their paths. We, in other words, should be allowed to be the arbiters of our own destinies.

Although the Ally McBeal episode dealt specifically with a law fi rm, law firms are often set up similarly to business firms. In both professions, we expect a lot from our employees— long hours, huge effort, and valuable contributions, which we tend to measure in terms of visible results. In law, we use “billable hours” and “face time” to gage the worth of employ- ees. In businesses, we have traditionally used similar measures. In both professions, working mothers have confronted obstacles.

In one sense, the situation presented in the Ally McBeal episode is flawed in that it is about what to do after a mother is denied promotion. Arguably, our interest should not lie with what to do after something goes wrong, but, rather, in creating a workplace where mothers can get promotions, or can at least know how to go about getting promotions. In Ally McBeal , there was no system in place for judging a mother as an associate. A large part of the problem, then, is not with the decision, but with the fact that the decision took place after the situation had played itself out. The responsibility for this should be shared by both the woman associate and the fi rm.

The argument here is not that working mothers should receive special treatment, but that we have to accept working parents as a reality and we need to prepare our workplaces for them. Where we have hierarchies in place that assume someone else is home with the children, we need to reexamine those hierarchies, and incorporate in hiring and promotion processes mechanisms to deal with and evaluate working parents.

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Conclusion

There are a number of ways to handle diversity in the workplace, particularly those that stem from parenthood. Firms have experimented with mommytracks and daddytracks and some have instituted less structured programs that incorporate flexibility through work- at-home programs or variable work weeks. The technology is available to us; we just have to open up our thinking and explore our moral imagination to integrate new methods of performing and evaluating work in order to enable parents to keep pace with their peers without having to sacrifice the needs of their young children.

While the Ally McBeal episode highlighted the situation of a working mother, working fathers are equally at risk, if not more so. It is important for firms to make it possible for active parents to pursue successful careers. The first goal should lie in getting fi rms to be clear with their policies, so at least parents can know what lies ahead for them.

During this process, it is essential that individuals think carefully about their choices. A single decision affects innumerable others. It is thus imperative to take care in what we designate as a choice. In characterizing motherhood as a choice, it enables firms to punish mothers for creating our next generation.

The purpose here is not to draw conclusions as much as it is to start a conversation that looks beyond the individuals involved. My concern is not with the woman in the Ally McBeal situation, or about my friends and colleagues, or even about myself. My anxiety is with the signals this sort of behavior sends, and about the very real effects it has on society—on the workplace and on families.