Typically The Bullard Edge focuses on workplace laws.
We often present common workplace scenarios and examine what the law requires in those situations, what the law permits, and how to comply with applicable law.
Today, though, we want to switch it up a bit and spend a few minutes thinking about ethics: the exercise of discretion where there is a legal right —but no legal mandate— to take some action. We believe that this has relevance in workplace. Our discussion will have four parts: (1) a wild soccer dream I had on Monday; (2) a real life ethical situation that I faced; (3) the thoughts of several actual experts on ethical decision-making; and (4) your real life situations.
My Wild Soccer Dream
On Monday morning I awoke at the tail end of an intriguing dream. I was on a soccer field as a goalie, a position I never played in my soccer days. I was out of position slightly, which allowed the ball to get behind me. I raced back as it bounced towards the goal and managed to slap it away from the goal after the ball was fully over the goal line ~ not by much, but that does not matter.
There was no whistle. The referee had missed the call and play continued. As luck would have it, my swipe of the ball had sent it directly to an attacking player who had an unobstructed shot at the goal. In that instant I considered whether I should simply concede a score to make up for the missed call. However, when the shot came low and hard I made a marvelous kick save, with the ball caroming to an opposing player on my left. That player directed the ball back in front of the net to another player with a clear shot. That player ripped a hard, but savable, but I instinctively pivoted to my left like a swinging gate and allowed the goal.
While it seemed in the moment like the right thing to do, all hell broke loose. As you may expect, my teammates had their hands up and were yelling (I was not trying to read lips). I also was surprised by the reaction of the opposing player who had made the scoring pass. He asked me why I allowed the goal; I told him it felt like a make-up for the non-goal that had crossed the goal line; he called me a fool.
After I awoke, the dream sequence remained vivid in my mind. Nothing about my decision to allow the score had been against the rules. I had the discretionary right to save or not save the shot, although the odds are good that I would not be starting the next game. Even though I was within the rules, I was left feeling that I had done the wrong thing.
My Real Life Ethical Situation
While practicing law in California in the mid-1990s I had an interesting exchange with a client’s president. We were in a conference room, along with the vice-president (the president’s brother), preparing for depositions in a case that ultimately went to trial.
Next to me in the conference room was a box of documents produced by the plaintiff, a sole proprietor and former employee of my client. The lawsuit involved the ownership of certain intellectual property that my client alleged the plaintiff had stolen before leaving employment. To safeguard each side, the court had entered a protective order that limited who could review various product-design documents produced in discovery. The box next to me contained documents that I could review, but my client could not.
It was not clear to me whether the president knew the box contained “attorneys only” documents. The president had been reviewing a number of documents and asked to see the documents in that box. I told him they were “attorneys only” documents that I could not let him review.
A few minutes later the following conversation took place.
President: “Mike, why don’t you go get a cup of coffee.”
Me: “I don’t drink coffee.”
President: “At [name of another law firm] they drink a lot of coffee.”
I assumed the president wanted me out of the room so that he could dig into the box of “attorneys-only” documents, but I was not certain of that. Perhaps the president wanted to discuss something with his brother. I could have rationalized leaving the room (perhaps after reminding them both that the court’s order barred them from reviewing the documents in the box). However, even if leaving the room might have been within my discretion, it felt wrong. I did not leave the room, the president never broached the topic again, and we worked well together through the successful conclusion of the trial.
An Expert On Ethical Decision-Making
The Bullard Edge does not claim to be an ethics expert. We recognize that there are work-related situations in which individuals have the option to choose between multiple legal options. Some of these choices are easy and some are difficult. (For example, consider two employees who fail to completely fill out forms needed for some benefit – one is a solid performer and the other is a nuisance. Do you alert both employees of their errors, or neither, or just the solid performer?)
The question is how to approach decision-making in these situations. The experts at the Markkula Center for Applied Ethics at Santa Clara University tell us that “ethics are not based on feelings, religion, law, accepted social practice, or science”. Rather, the term “ethics refers to standards of behavior that tell us how human beings ought to act in the many situations in which they find themselves”.
The Markkula Center suggests a framework for ethical decision-making, which can be paraphrased as follows:
— Recognize when ethical issues are presented;
— Get the relevant facts concerning the situation and the options for responding;
— Evaluate the alternative actions using several approaches (utilitarian, rights, fairness, common good, and virtue);
— Make a decision and teste that decision;
— Implement the decision; and
— Reflect on the outcome.
Your Real Life Ethical Situations
Ethics expert Frank Bucaro notes that ethical decision-making is not easy. In an article titled “What Would You Do” (Corporate Compliance Insights, April 5, 2011), Mr. Bucaro observes that in the workplace we face ethical situations (big and small) all the time. Here are two of the examples he offers.
— “You’re about ready to sign a big new client to a contract worth over $50,000. Your boss is under a lot of pressure to increase sales. He calls you into his office and tells you his job is on the line, and he asks you to include the revenue for your contract in the sales figures for the quarter that ends tomorrow. You know the contract is a sure thing but the client is out of town and cannot possibly sign by tomorrow. What do you do?”
— “Your best friend is the VP of one of [your clients]. You take her out for lunch just to catch up on personal stuff, and you pick up the check. Do you declare this a ‘business lunch’ and submit the receipt for reimbursement?”
Business ethicist James O’Toole offers another example.
— “For example, in my on-going organizational research I have been following the fortunes of a large financial services company that has doubled its sales and halved its workforce over the past three years. * * * The way it halved its workforce was through domestic outsourcing or selling off divisions and then contracting for the services of their former employees. In essence, their policy is to find ways to pay people less for doing the same work without benefits and with fewer legal obligations.”
These are just a few examples of situations that allow for a decision between multiple legal options. Assuming all of the options are legal, the question is how to go about making the right, or ethical, decision.
The Bullard Edge would love to hear from you about situations that involve these kinds of decisions. They can be real situations that you have faced or situations that others have faced (names and dates can be modified, of course). We hope that the sharing of situations will be valuable for all of us.
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