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Chapter 6: Ethical Decision-Making: Employer Responsibilities and Employee Rights Chapter Objectives After reading this chapter, you will be able to: Discuss the two distinct perspectives on the ethics of workplace relationships. Explain the concept of due process in the workplace. Define “employment at will” (EAW) and its ethical rationale. Describe the costs of an EAW environment. Explain how due process relates to performance appraisals. Discuss whether it is possible to downsize in an ethical manner. Explain the difference between intrinsic and instrumental value in terms of health and safety. Describe the “acceptable risk” approach to health and safety in the workplace. 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. Explain the basic arguments for and against regulation of the global labor environment. Describe the argument for a market-based resolution to workplace discrimination. Define diversity as it applies to the workplace. Explain the benefits and challenges of diversity for the workplace. Define affirmative action and explain the three ways in which affirmative action may be legally permissible. Articulate the basic guidelines for affirmative action programs.
Opening Decision Point American Apparel: Image Consciousness? This Decision Point deals with the clothing manufacturer American Apparel, a brand popular with many young consumers. Contributing to this popularity are AA’s decisions to prove its primarily Latino workforce with generous benefits, to keep its manufacturing in the U.S., and, as well, to use provocative, “no-frills,” and often controversial photos in its advertisements. AA’s highly-visible founder and CEO Dov Charney takes many of the photos, which commonly feature female company employees. Charney and AA have faced a steady stream of allegations of illegal and unethical conduct in recent years: 2005-2006: Four former employees filed sexual harassment lawsuits against AA, charging that they were subjected to an unsafe working environment in which female employees faced sexual misconduct and innuendo. 2008: A former employee sued AA, asserting that he had been wrongfully terminated after refusing to pad inventory reports. The company denies wrongdoing. 2009: An immigration investigation found that many of AA’s 5,600 factory employees were not properly documented. Charney was forced to lay off more than a quarter of his production workforce. 2009: AA paid filmmaker Woody Allen $5 million to settle a lawsuit charging that the company illegally used Allen’s image in an advertisement without permission. 2009: An AA advertisement featuring a partially dressed model who appears to be under 16 was banned in the U.K. 2010: A popular blog claimed that AA requires job applicants for retail positions to submit a full-body photograph that must be approved by executives before hiring, and charged that only model-thin, white or Asian applicants tend to make the cut. In 2011, five more female employees filed sexual harassment charges against Charney. Allegations included a charge that Charney pressured some of them to perform sex acts against their will. The lawsuits and the forced production lay-offs took a heavy financial toll on AA, which teetered on the brink of bankruptcy in early 2011. Students are asked to consider the following questions when assessing this scenario: Do you see a connection between the subject of the lawsuits discussed above and the choices made by the popular retailer? Do you feel that Charney did anything wrong by promoting his personal vision in corporate decisions, from advertising and production to hiring and corporate culture? What are the key facts relevant to your determination? Are there ethical issues involved in your decision? Please identify. Who are the stakeholders in this scenario? Are any stakeholders’ rights abridged by Charney’s decisions? In what way? Even if you answer no to the first question above, evidently certain stakeholders believed that American Apparel acted inappropriately. Was there any way to have prevented the negative publicity from happening in the first place, without undercutting American Apparel’s reputation as an anti-corporate, provocative brand? What alternatives were originally available to the retailer? How would each of these new alternatives have affected each of the stakeholders you have identified? As it moves forward from this point, what alternatives now exist for American Apparel to heal relationships with its stakeholders? What recommendations would you offer to American Apparel?
Introduction Ethics in the employment context is perhaps the most universal topic in business ethics since nearly every person will have the experience of being employed. Unresolved Ethical Issues: While legislators and the courts have addressed many aspects of the working environment, countless ethical issues remain that these regulatory and judicial bodies have left unresolved. Beyond the Law: The law provides guidance for thinking about ethical issues in the workplace, but such issues go well beyond legal considerations. This chapter explores areas of ethical decision making in the workplace where the law remains relatively fluid and where answers are not easily found by simply calling the company lawyer. The chapter also examines various ethical challenges the employee faces and the nature of employer responsibilities. While individual perspectives may change, similar conflicts and stakeholders present themselves across business settings. Utilizing the Ethical Decision-Making Process: Consider how you might employ the ethical decision-making process we have discussed to reach the best possible conclusion for the stakeholders involved in the situations described in this chapter. Using the ethical decision-making process may seem cumbersome at the outset, but once the process becomes embedded in the professional landscape and culture, its effectiveness and efficiency in resolving these issues will become apparent. Ethical Issues in the Workplace: The Current Environment Ethics in Human Resources: 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” – more than double! Data: Less than half of U.S. workers feel a very strong sense of loyalty to their employer. Only a third of employees feel that their employer has a strong sense of loyalty to them. These influences play out in practical ways for businesses since research shows that 49% of US workers have observed misconduct in the workplace during the previous twelve months. Employees who have not witnessed ethical violations tend to express higher levels of engagement with their workplace; disengaged employees are three times more likely to have felt pressured to violate company standards. The challenges are compounded by the fact that misconduct increases and is less likely to be reported when employees do not perceive a positive ethical culture. *Chapter Objective 1 Addressed Below* Perspectives on Workplace Relationships: There are two very distinct, and sometimes competing, perspectives on the ethics of workplace relationships. Motivation for treating workers appropriately: Employers might decide to treat employees well as a means to produce greater workplace harmony, productivity, and innovation. This raises a question about moral motivation and instrumentalist, self-interested reasons for doing good, which is similar to our discussion of corporate social responsibility in Chapter 5. While no one is claiming that employees have some universal right to a “happy” workplace, 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. Role of Emotion in the Workplace: 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 workplace and model a positive emotional environment. Rewards and compensation structures can clearly impact the emotions of workers, as can the composition of teams or the power relationships within the workplace. When employees see that a firm values their emotions, as well as exhibits values 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 misconduct to outside parties. Additional motivation for treating Employees Well: Employers might treat employees well out of a Kantian sense of duties 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 important 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. *Reference: “Reality Check – Protecting Employee Rights through Unions”* Defining the Parameters of the Employment Relationship Legal and Ethical Boundaries: The employment relationship raises issues of power, obligation, responsibility, fair treatment, and expectations. The livelihoods of both parties rely on each other’s contributions to the relationship, so it is important that clear boundaries be established to maintain the relationship. Legal Requirements: Though legal requirements might serve to protect some interest, they can only go so far and only cover so many bases. The ethics underlying the concepts of due process and fairness can help determine what is or is not acceptable behavior in the workplace. Challenging circumstances, such as reduction in force, may threaten employers’ ability to remain true to the principles of due process and fairness. The employment relationship is further defined by the application of these principles to working conditions such as health and safety, both in domestic operations and abroad. The issues in the following sections: are predominantly settled from an ethical perspective by their justification. In other words, for example, people of good will would be likely to agree that an employee has a right to a safe and healthy workplace. Disagreements remain, however, in discussions surrounding the implementation, interpretation, or extent of that right. 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 *Chapter Objective 2 Addressed Below* Employment security 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. Remaining issues: Should employers’ rights and ability to hire, fire, or discipline employees be restricted in order to prevent injustices? Are there any other means by which to protect against unethical behavior or unjust results? 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 procedures that police and courts must follow in exercising their authority over citizens. The state’s authority to punish citizens, through police and courts, creates a safe and orderly society. The state’s authority is not unlimited; it can be exercised only in certain ways and under certain conditions. Due process rights specify these conditions. Due process in the workplace acknowledges and employer’s authority over employees. Because of the immense value that work holds for most people, the threat of losing one’s job is a powerful motivation to comply. Basic fairness, implemented through due process, demands that an employer’s power be used justly. The definition of basic fairness remains a challenge. *Reference: “Reality Check – Protests in Support of Employment Security in Spain”* A 2010 survey reported that 35% of workers had experienced “bullying” in the workplace firsthand, defined as “the repeated, malicious, health-endangering mistreatment of one employee . . . by one or more employees.” These behaviors lead not only to emotional abuse but a complete loss of personal dignity, intimidation and fear. Evidence demonstrates that, not only does the employer have significant bottom line expenses from workers’ compensation claims based on stress and other emotional stimuli, but also costs related to potential litigation arising from claims of abusive work situations. There is also the indirect impact on employee morale, and certainly the negative effects that occur when one would prefer not to be at the workplace: turnover, absenteeism, poor customer relationships, and acts of sabotage. The issue of workplace bullying is one that we hear about more and more, especially in economies based on strong service sectors where the work relies significantly on interpersonal relationships and interaction. *Chapter Objective 3 Addressed Below*
Decision Point Bullying in the Workplace This Decision Point addresses anti-bullying legislation that would enable victims of workplace bullying to sue their harassers and hold their employers accountable. Advocates of anti-bullying laws argue that the extent of the problem, when considered alongside evidence that bullying causes significant physical, emotional and economic harm to its victims, calls for a legislative response. On the other hand, critics worry that anti-bullying legislation would lead to a spike in employee lawsuits, and point to the difficulty of determining whether abusive bullying has taken place, particularly in high-pressure work environments. Since 2002, anti-bullying bills have been introduced in 21 states, but as of 2011, none of them have been passed into law. New York began considering a bill in 2010 that defines bullying broadly, and would include “the repeated use of derogatory remarks, insults and epithets, as well as conduct that a ‘reasonable person’ would find threatening, intimidating or humiliating.” Students are asked to consider the following questions concerning anti-bullying legislation: How would you define “bullying” if you were to design an anti-bullying law? What stakeholder groups should be considered in crafting your definition? As a manager, what steps might you take to prevent bullying behavior in your company? Do you believe that legislation is needed to respond to the problem of workplace bullying? Why or why not? Students are asked to consider if their views about anti-bullying legislation are impacted by data that shows that the majority of workplace bullying involves same-gender harassment, which is not illegal unless another protected class (such as race or religion) is involved, or the harassment reaches the level of criminal violence.
Employment at Will: 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.” *Reference: “Reality Check – Employing ‘Employees’” Unless an agreement specifies otherwise, employers are free to fire an employee at any time and for any reason. 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. The Ethical Rationale for EAW: Employment at Will has both utilitarian and deontological elements. EAW was thought to be an important management tool. Total discretion over employment gives manager 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. *Chapter Objective 4 Addressed Below* Limits to EAW: Both legal and ethical analyses demonstrate that there are good reasons to limit EAW. Even if EAW proved to be an effective management tool, justice demands that such tools not be used to harm other people. Even if private property rights grant managers authority over employees, the right of private property itself is limited by other rights and duties. The freedom to terminate the relationship is theoretically mutual, however the employer is often responsible for the employee’s livelihood, which creates an unbalanced power relationship between the two parties. Exceptions to EAW: Many courts and legislatures have created exceptions to the EAW rule. Civil rights laws, for example, prohibit 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. *Reference Table 6.1 Here* EAW Has Priority: A crucial element to recognize with these exceptions 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 policy or through legislation, would reverse this burden of proof and require employers to show cause to justify the dismissal of an employee. *Chapter Objective 5 Addressed Below* Due Process in Other Employment Contexts: Being treated fairly in the workplace also involves fairness in areas such as promotions, salary, benefits, and work conditions. Because such decisions are typically made on the basis of performance appraisals, due process rights should also extend to these aspects of the workplace. *Reference Table 6.2 Here* Ethical Questions: In the EAW environment these ethical questions remain: Is this atmosphere one that is most fair and just for all stakeholders? Does it lead to the most effective employment outcomes? Does it satisfactorily guard the rights and interest of both employers and employees? Consider the key facts relevant to issues of due process and fairness. Example: If you are striving to serve the autonomy of the employer, could you perhaps serve the due process interest of the employee by offering additional notice of termination or more information about alternatives? Due process is the right to be protected against arbitrary use of authority, so it as the decision-maker, it is your role to ensure protection against those arbitrary decisions. The over-arching obligation, here, is to make sure that decisions are made in light of reasons that can be defended from an ethical perspective. Downsizing: Terminating many employees at once can have both emotional and ethical implications. Terminating workers is not necessarily an unethical decision, but it raises ethical quandaries since alternatives may be available to an organization in financial difficulty. Since a host of negative consequences may result, these alternatives may pose a more effective option from the perspective of all stakeholders involved. A 2011 study examined the downsizing methods of more than 100 “high-performance work systems” (HPWSs), defined as organizations that depend heavily on human capital for competitive advantage. The study found that when HPWS companies showed greater consideration for employees’ morale and welfare in the downsizing process, they significantly mitigated the loss in productivity that typically accompanies lay-offs. A similar study found that almost 90 percent of surviving workers reported that they were less likely to recommend their firm as a good place to work. *Chapter Objective 6 Addressed Below* Once the decision to downsize has been made, one must consider whether there are ways an organization can act more ethically in the process. Important factors to consider are respect, dignity, transparency, and consistency. Using the decision-making model can provide guidance for downsizing. First, the decision regarding downsizing should be made by a representative group to consider all stakeholder interests and earn the trust of those that will be impacted. The facts should be collected and any issues should be determined. The question of notice is debatable since some say that firms should give notice of the intent to downsize as soon as the need is determined, while others say that early notification can create too many negative feelings and rumors. These costs and benefits must be weighed in any communication decision and certainly considered in managing and interacting with employees following a layoff. Enumerate any and all possible option with regard to the downsizing efforts and catalog the impact of each option on each group of stakeholders. *Reference: “Reality Check - Is It Really ‘Inevitable’?”* When a firm decides to downsize, it is critical to lessen the impact as much as possible and to allow the terminated employees to depart with dignity. It is critical to be honest and forthright and to be sensitive to the experiences of those who will be affected. Planning for Downsizing: 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 neutral on its face, such as seniority, but the plan results in a different impact on one group than another, the decision may be suspect. Example: Assume the firm makes termination decisions based on longevity with the organization. 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 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 termination policy has a more significant—and negative—impact on women. Firms should review both the fairness of their decision-making process and the consequences of that process on those terminated and the resulting composition of the workforce. Rawls’s theory of justice presented in Chapter 3 is one of the most effective philosophical theories to employ in downsizing decisions because the decision-maker considers the decision as if she or he does not know what role they will be in after the decision. Rawls contends that you are more likely to reach a decision that is relatively fairest to all impacted if you do not know which role you would be playing. Perhaps the most important consideration in the event of a downsizing or layoff is the fact that there are countless stakeholders who will be impacted by the decisions involved. Health and Safety Right to Safety: 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 working environments that are often termed “sweatshops.” 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.
Decision Point Measuring Our Worth This Decision Point deals with how we measure the intrinsic value of a life in addition to the instrumental value. The scenario discussed is that of the Ford Pinto, which involves a decision that teaches the hazards of considering only the instrumental value of a life. In 1968, Ford Motor Company made a historic decision regarding the 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 on figures from the National Highway Traffic Safety Administration. Using these figures, 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 be only about $50 million. If the students were responsible for deciding whether to engage in the recall, how would they conduct the decision-making process? How would they account for the intrinsic as well as the instrumental value of a human life? They are asked to consider how they would measure their own worth or the value of someone close to them. Who are their stakeholders and what is their value to each of them? How will they measure it – financially? Students should consider the following questions when assessing this scenario: How much would your stakeholders suffer if they lost you? 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 they prefer that they reach conclusions in these areas?
Value of Health and Safety: 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. *Chapter Objective 7 Addressed Below* Health and safety are also valuable in and of themselves. They have intrinsic value in addition to their instrumental value. The life of a worker 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 lost wages do not measure the intrinsic value of the life. 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 safe and healthy workplace. *Chapter Objective 8 Addressed Below* Health and Safety as Acceptable Risk: Employers cannot be responsible for providing an ideally safe and healthy workplace. 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. *Reference Figure 6.1 Here* “Risks” can be defined as the probability of harm, and we determine the “relative risks” by comparing the probabilities of harm involved in various activities. A workplace is considered safe if the risks are acceptable. An “acceptable level of risk” means that the probability of harm involved in a specific work activity is equal to or less than the probability of harm of some more common activity. If all workplace health and safety standards were determined in this manner, the responsibility for workplace safety would fall solely on management. Businesses would hire safety experts to perform a risk assessment and determine the relative 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. Problems with Excluding Employees: Putting all of the responsibility for workplace health and safety on the management poses several problems. This approach treats employees disrespectfully by ignoring their input as stakeholders. It treats employees like children and makes crucial decision for them, ignoring their role in the decision-making process. It assumes that health and safety are mere preferences that can be traded off against competing values, ignoring the fundamental deontological right and employee might have to a safe and healthy working environment. It assumes and equivalency between workplace risks and other types of risk, when there are actually significant differences between them. The risks faced in the workplace may not be freely chosen, nor are the risks faced in the workplace within the control of workers. It disregards the utilitarian concern for the consequences of an unsafe working environment on the social fabric, resulting product or service created, morale of the workforce, and the community, as well as other large-scale results of an unhealthy workplace. *Reference Table 6.3 Here* Workplace Risks: 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. Making the workplace safe may pose substantial costs to employers. Workers’ choices and control are limited in the workplace. As long as a worker wants to keep her or his job, they cannot avoid the risks involved in the work or workplace. Often the employer could minimize or eliminate the risks, but there may be financial incentive not to do so. Health and Safety as Market Controlled: Perhaps the health and safety standards can be left 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 workplace health and safety. Under individual bargaining, employees would be free to choose the risks they are willing to face by bargaining with employers. Employees could balance 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, individual bargaining would result in the optimal distribution of safety and income. Employer Responsibility: The market approach can support compensation to injured workers when it can be shown that employers were responsible for causing the harms. An employer who fails to install fire-fighting equipment in a workplace can be held liable for burns an employee suffers during a workplace fire. The threat of compensation can act as incentive for employers to maintain a reasonably safe and healthy workplace.
Decision Point Should Clinical Trials for New Drugs Be Exported? This Decision Point discusses the concept of exporting dangerous jobs to places where people are willing to do them. Following the market-based recommendation to allocate workplace risks on the basis of an optimal distribution of risks and benefits, from a business perspective it seems that 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 and health effects, 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. Following this market-based logic, many U.S.-based pharmaceutical companies seeking to test new medications have begun to conduct pharmaceutical trials abroad. Clinical trials in developing economies tend to be subject to far fewer regulations than trials in the U.S., and therefore are significantly less costly. Students should consider the following questions when assessing this scenario: What facts would you want to know before deciding whether the practice of exporting clinical trials was fair and responsible? What alternatives to exporting clinical trials exist for a pharmaceutical company? Who are the stakeholders of your decision? What is the impact of each alternative mentioned above on each stakeholder you have identified? Should local legal regulations govern the situation, or should legal regulations in the pharmaceutical company’s home country? 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?
1. *Chapter Objective 9 Addressed Below* Problems with the Free Market Approach: The free market approach has a number of serious problems, especially since labor markets are not perfectly free and competitive. Employees do not have the kinds of free choices that the free market theory would require in order to attain optimal satisfactions. Though enlightened self-interest would be a valuable theory to introduce and apply in this environment, it is unrealistic to presume employees always have the choices available to them that make it possible. For example, risky jobs are often 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. Employees seldom, if ever, possess the kind of complete information efficient markets require. If the employees do not know the risks, 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 not at all obvious, such as the toxicity or exposure levels of workplace chemicals or airborne contaminants. Such market failures can have deadly consequences when they involve workplace health and safety issues. Market Balance: Market defenders argue that 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. This raises the “first generation” problem. In effect, markets sacrifice the first generation to gain information about safety and health risks. These questions of public policy 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 ethical public policy approach to worker health and safety. *Reference Table 6.4 Here* Health and Safety—Government Regulated Ethics: Mandatory government standards address most of the problems raised against market strategies and appear appropriate from an ethical perspective. Standards can be set according to the best available scientific knowledge, thus overcoming 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. Standards are fundamentally a social approach that can address public policy questions ignored by markets. *Reference: “Reality Check - Do Health and Safety Programs Cost Too Much?”* Occupational Safety and Health Administration (OSHA): In 1970, the U.S. Congress established OSHA and charged it with establishing workplace health and safety standards. Since OSHA was established, the major debates concerning workplace health and safety have focused on how such public standards ought to be set. The dominant 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, placing the burden of proof on industry to show that high standards are not economically feasible. Health and safety standards are not required, no matter the cost; 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 sacrifices employee health and safety. From that perspective, industries that cannot operate without harming the health and safety of its employees should be closed. More influential critics argue that these standards go too far. Critics in industry as well as government have argued that OSHA should be required to use cost-benefit analysis in establishing such standards. From this perspective, 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. Cost-Benefit vs. Cost-Effectiveness Analysis: Using cost-benefit analysis to set standards, in effect, returns us to the goals of the market-based, individual bargaining approach. Use of cost-benefit analysis faces serious ethical challenges. However, rejecting cost-benefit analysis in setting standards is not the same as rejecting cost-effective strategies in implementing those standards. A commitment 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 because the use of cost-benefit analysis in setting workplace health and safety standards commits us to treating worker health and safety as just another commodity to be traded against competing commodities. It denies health and safety its intrinsic value. Use of Cost-Benefit Analysis: 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 insurance industry in which one’s life is valued in terms of one’s earning potential. A shift to cost-benefit analysis entails that health and safety is traded off against profit margin.
Decision Point How much is enough? This Decision Point contemplates whether the cost of violating workplace health and safety standards is sufficiently high to deter unsafe conditions for workers. In one occurrence, OSHA imposed a fine $87.5 million on British Petroleum (BP), the largest fine in OSHA's history. OSHA had found over 400 new safety violations at the company's Texas City refinery. The violations were considered egregious since they were discovered in 2009, four years after a deadly explosion at the refinery (15 deaths, 170 injured) led BP to sign an OSHA agreement promising to improve safety conditions. Students are asked to answer the following questions: If you were on the OSHA Commission to review the amounts of fines imposed, how would you reach a decision as to how much is enough? What factors would you consider? Who are the stakeholders involved in your decision? What do you foresee will be the impact of your decision on the stakeholders involved? How might ethical theory assist you in reaching this particular decision? Once you have reached your decision, which constituencies do you anticipate will be most supportive and which will be most against your decision, and why?
2. Employees have a legitimate ethical claim on mandatory health and safety standards within the workplace. This implies that employees should not be expected to make trade-offs between health and safety standards and job security or wages. Recognizing that most mandatory standards reduce, rather than eliminate risks, employees should also have the right to be informed about workplace risks. If 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. ** Teaching Note: Consider the alternative perspective of health and safety here with the students. An internal Wal-Mart Stores Inc. memo proposing that the retailer cut its health-care costs by discouraging unhealthy people from applying for jobs raises questions about how far employers can legally go in preferential hiring. The Wal-Mart memo to the company's board of directors proposes incorporating physical activity in all jobs to discourage the infirm from applying. For example, the memo suggests that Wal-Mart arrange for "all cashiers to do some cart gathering." Are there any ethical issues associated with the a firm’s choice to cut health care costs by eliminating people who are unhealthy? Do you think there will be ethical or legal issues associated with a corporate memo proposing physical activity in all jobs to discourage the infirm from applying? What do you think of businesses’ attempt to decrease health care costs by helping employees to become healthier? Global Applications: The Global Workforce and Global Challenges Which Law Applies? Workers outside of the United States may be subject 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 protected by even more stringent laws than those in the United States. Many European Union countries have strong laws protecting workers’ rights to due process and participation. In certain developing countries, however, workers find themselves subject to conditions that U.S.-based workers would find appalling. For example, some workers in certain Southeast Asian countries are simply arguing for at-will bathroom breaks. *Chapter Objective 10 Discussed Below* Solution to Poor Working Conditions: Economists and others do not agree about a solution to these circumstances in the workplace. Some contend that the exploitation of cheap labor allows developing countries to expand export activities and to improve their economies. 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. Some argue that encouraging greater global production will create additional opportunities for expansion domestically, providing a positive impact on more stakeholders. Though an unpopular sentiment with the general consuming public, many economists argue that the maintenance of sweatshops is therefore supported by economic theory. The reading by Zwolinski, “Sweatshops, Choice and Exploitation,” explores the issue from a slightly different perspective. He defends the moral legitimacy of sweatshops and responds to the question of whether a worker under these conditions can actually consent to them or be considered to be working “voluntarily” at all. He concludes that a worker actually is able to give consent. *Reference Figure 6.2 Here* Economists and others still do not agree on a solution. The reading by T.A. Frank, “Confessions of a Sweatshop Inspector,” offers a perspective somewhat in opposition to Zwolinski’s. Consider the sign mentioned early in the article, observed in large characters on a factory’s wall, “If you don't work hard today, look hard for work tomorrow.” Frank might take issue with Zwolinski’s claim of worker consent to conditions where few alternatives exist. From a unique point of view, Frank shares the experience of inspecting serving as an independent monitor of overseas suppliers to multinational retailers. The reading by Juliette Garside explores Apple’s response to media exposure of its Chinese supplier’s poor practices. Apple products were produced in conditions that might not be deemed ethically acceptable in the United States and certainly violated internal standards issued by Apple and local Chinese labor laws. How might you have responded? Would you have responded any differently than did Apple, as described in Garside's reading? If Apple were the most ethical company possible, how might it have responded differently than it did, in January 2012? Perhaps our judgment of Apple might be more effectively conceived from our answers to these questions, as well as a consideration of Tim Worstall's reading, "Apple's Foxconn to Double Wages Again," which explains the role of the market in these decisions, in addition to values and judgment. Apple is a company that relies heavily on consumers’ positive opinion of the company. In turn, Foxconn, relies heavily on its relationship with Apple; both Apple and Foxconn derive profit from stable, long-term relationships, and that provides the opportunity for continued improvement in working conditions. Global Dimension: Certainly it is arguable that some minimum standards might apply and multinationals and their suppliers may have some core ethical obligations to employees. In absence of specific guidance, how do we determine what those standards and obligations might be? Concluding that the standards of one particular country, such as the U.S., are appropriate for all countries and cultures of the world is not necessarily the optimal conclusion. 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. This means that individuals should be treated with respect and dignity, rather than as a means to an end. 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. Multinational corporations must ensure the physical well-being of employees, encourage development of rational and moral capacities, adhere to local labor laws, refrain from using coercion, provide decent working conditions, and provide wages above the overall poverty line for a 48 hour work week. Living Wage: Even defining a living wage is problematic. In a world that cannot seem to agree on the number of people living in poverty, figuring out how much is sufficient to offer a subsistence quality of life represents hurdles. A number of companies have joined the Ethical Trade Initiative. (ETI), an alliance of corporations, trade unions and voluntary organizations dedicated to improving the conditions of workers. The ETI has established a "Base Code" of ethical standards that all signatories commit to uphold. The portion of the Base Code addressing living wages states the following: Wages and benefits paid for a standard working week meet, at a minimum, national legal standards or industry benchmark standards, whichever is higher. All workers shall be provided with written and understandable information about their employment conditions in respect to wages before they enter employment and about the particulars of their wages for the pay period concerned each time that they are paid. Deductions from wages as a disciplinary measure shall not be permitted nor shall any deductions from wages not provided for by national law be permitted without the expressed permission of the worker concerned. All disciplinary measures should be recorded
Decision Point What to Do about Child Labor This Decision Point raises critical questions to prompt student reflection and discussion regarding the issue of child labor. As students explore the question of child labor, they are asked to 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 they would respond if they were a labor advocate seeking to determine the best next steps in the debate. Students are asked to consider the following questions, which apply the ethical decision-making process described in Chapter 2: 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 resolving this particular dilemma?
Non-wage benefits are an important and neglected aspect of the debate over global sweatshops. In many instances such benefits can provide an advantage to both the worker and the employer. An MNC factory that provides free health checkups and basic health care services to workers through a factory clinic will typically have a healthier and more productive work force than factories that lack such benefits. Example: Levi Strauss & Company provides medical services to employees, their families, and members of the surrounding communities. Because public healthcare in the locations where the Levi Strauss factories are located is generally poor, particularly in smaller cities and remote rural areas, companies play a vital role in providing additional assistance. Levi’s sees the business value of investing in women’s health as a pathway to strengthening whole communities. Voluntary Standards: International nongovernmental organizations have also attempted to suggest voluntary standards to which possible signatory countries or organizations could commit. Example: The International Labour Office has promulgated its Tripartite Declaration of Principles Concerning Multinational Enterprises and Social policy, which offers guidelines for employment, training, conditions of work and life, and industrial relations. Awareness of the limitations of the legal and ethical analysis and sensitivity to the challenges of global implementation are critical in today’s multinational business operations. The Case of Child Labor: One of the key issues facing business in today’s global economy is the potential for cultural or legal conflicts in connection with the worldwide labor management. One such conflict arises with the case of child labor. As we begin to understand the circumstances facing children worldwide, we can see that a simple prohibition might not offer us the best possible solution. According to International Labor Organization estimates, more than 215 million children between 5 and 17 years old currently work in developing countries. Approximately 115 million of these children are performing “hazardous work.” The category of hazardous work developed by the ILO includes all forms of labor that adversely affect children’s safety, health, or moral development. However, this category is also considered a proxy for the worst forms of child labor for which data is difficult to secure, such as forced and bonded labor, child soldiering and commercial sexual exploitation. Child labor has damaging effects on children: Because work takes children out of school, nation-specific studies show that high levels of child labor are associated with low literacy levels. Regions with a high prevalence of child labor are also characterized by high levels of childhood morbidity associated with HIV/AIDS, non-HIV infectious diseases, and malaria. The harmful effects are not limited to child laborers themselves; because children who work are more likely to earn low wages as adults, the risk that poverty and child labor will be passed to the next generation increases. Employers in many economically developed countries currently use children as laborers, so one should carefully review the social and economic structure within which the labor exists. Ridding all factories of all workers under 18 years old is not necessarily the best answer for the children or families involved. Prospects for working children in developing countries appear bleak. Children may begin work as young as three years old and may both live and work in unhealthy conditions. The labor opportunities that exist almost always require children to work full time, precluding them from obtaining an education. However, if they are not working, their options are not as optimistic as those of children in developed countries. Often children who do not work in the manufacturing industry are forced to work in “underground” professions, such as drug dealing or prostitution, simply to earn their own food each day. Before suggesting the removal of the child from the workplace, one must consider that the income that the child worker generates may, at the very least, assist in supporting his or her fundamental needs and may even be critical in supporting the entire family. Rights and Responsibilities in Conflict: Discrimination, Diversity and Affirmative Action Debatable Issues: The issues of discrimination, diversity and affirmative action are all matters that scholars, jurists, and corporate leaders continue to debate. The law is not yet completely settled on many of these issues and remains open to diverse cultural interpretations, strong minority opinions, and value judgments. 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 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 prohibited classes of discrimination. Several specific areas of delicate and subtle quandaries remain, however many of the original legal and ethical debates have been fought, offering business decision-makers arguably clear guidance on appropriate behavior in the workplace. Example: While the advent of sexual harassment as a basis for 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. Today the Equal Employment Opportunity Commission (EEOC), 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. Guidelines for Decision Making: The law allows employers to make decisions on any basis other than those prohibited by the Constitution, precedent, and several statues (such as age, religion, race, disability, gender, national origin, color, and depending on the jurisdiction, sexual orientation).
Decision Point Who Needs Ethics? Can The Market “Fix” Discrimination? This Decision Point addresses the issue of discrimination in employment. 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 based on prejudices and discriminatory views, then it is limiting its pool of possible employees. Another firm that does not discriminate has a larger pool of applicants and is more likely to obtain the most qualified individual for the job. Judge Richard Posner explains the economic impact of this theory in terms of race discrimination, noting that the least prejudiced “sellers” will come to dominate the market in the same way that those who are least afraid of heights dominate occupations that require working at heights. 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? Students should consider the following questions when assessing this scenario: 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 address 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?
Some commentators would contend that this broad mandate allows employers enormous autonomy in their employment decisions while many employers till be moan any regulation of their workplaces. There remains widespread disagreement on a global basis about the rights of employees with regard to discrimination, the extent of protected classes, diversity, and affirmative action. Even in the U.S., 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 Richard Posner argues how the market might be able to relieve employees of some of these fears—at least in theory. *Reference: “Reality Check – When in Rome…”* *Chapter Objective 11 Addressed Below* Covert forms of discrimination: are widely prevalent, though they often go unnoticed. University of Chicago scholars Marianne Bertrand and Sendhil Millainathan found discrimination simply on the basis of one’s name. The researchers answered help-wanted ads in Boston and Chicago newspapers by submitting resumes that were exactly the same in their substance, but that used different names. Names that were traditionally associated with Caucasians drew fifty percent more callbacks than those traditionally associated with African Americans. Even when resumes were altered and higher quality resumes were submitted those with African American sounding names received no more callbacks than the original resume. The only bright spot in the research was finding that Chicago employers in African American neighborhoods discriminated less than those in other communities. Gender Discrimination: In the United States discrimination not only persists with regard to race, but also in connection with gender. Women often face challenges that are distinct from those faced by men. Women and men are both subject to gender stereotyping, but suffer from different expectations in that regard. Powerful women are often considered ”ice queens,” while unemotional men are seen as doing what is necessary to get ahead. The cultural image of powerful women as “unsympathetic power-mongers” creates a catch-22: if a woman is extremely professional, showing little emotion, she is at risk of being perceived as an ‘ice queen;’ however, if she shows emotion, she is at risk of being seen as unstable or weak, and thus, incapable of strong leadership. A study of the effects of gender stereotyping on communication styles adds support to the experiences reported by powerful women. The study found that women who believed that they were being stereotyped on the basis of their gender tended to adopt a more masculine style of communication. However, other test subjects rated these women as less likable and were less likely to follow their leadership. Diversity: The U.S. workforce today is significantly more diverse than ever before and all data suggest that this will continue. Efforts toward eliminating discrimination and a changing population are major factors 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 in a firm. *Chapter Objective 12 Discussed Below* Ninety percent of employees in U.S. businesses believe they work in a diverse workplace. 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 the age of 45. The management composition at firms with diversity programs is significantly more diverse than those at firms that do not have such programs, and 79 percent of senior managers at those firms say that cultivating a more diverse workforce is part of the organization’s overall business strategy. A study of Fortune 500 companies by Catalyst reports that, between 2004-2008, companies with a critical mass of female board members outperfomed companies with none by 84 percent in the area of return on sales, 60 percent in return on investment capital and 46 percent in return on equity. *Reference: “Reality Check – Diversity = Innovation?”* *Chapter Objective 13 Addressed Below* Diversity efforts have brought benefits to the workplace, but have also created new conflicts. Diversity can potentially increase several areas of values tension. Where differences are new or strong, and where negative stereotypes previously ruled interactions between particular groups, sensitivity to the potential for conflict is necessary. ** Teaching Note: To explore the nature of perceptions, faculty may wish to assign the following brief paper project: During the next week (or however long faculty wish to offer), you should endeavor to experience something outside of your “zone of comfort.” This assignment asks that you might not otherwise do, experience something that you might not otherwise experience. You are NOT being asked to do anything wrong, unethical or otherwise inappropriate (form your own or others’ perspectives), but instead to do something that may constitute a “stretch” for you or something that perhaps you should do (from your own perspective) but do not usually. Before engaging in this activity, consider what your expectations are (i.e. how do you think you'll feel, what do you think it will be like) and draft the first section of your paper. Then, after the experience, conclude the paper by describing the experience and whether the reality matched your expectations. In addition, please comment on the nature of perceptions and how they impact or play a role in your decision-making and your judgment of others’ ethics and decision-making.
Decision Point Women’s Economic Development Programs This Decision Point refers to Wal-Mart’s Global Women’s Economic Power Initiative, which planned to invest billions in new programs aimed at women. This program was announced three months after the United States Supreme Court dismissed a class action suit that alleged systematic gender discrimination in pay and promotion decisions at Wal-Mart, the nation’s largest private employer. Although Wal-Mart was victorious in defeating the class action suit, the Supreme Court decision allows individual employees to file civil actions. In addition, the company faced negative publicity from the high profile case. Students should ask themselves the following questions regarding the scenario presented: What do you believe was Wal-Mart’s motivation for the initiative discussed above? Who are its key stakeholders for this launch announcement and for the programs, themselves? Do you believe the programs will be successful or, if you might need additional information, what do you believe would be the key components to make this program successful?
Integrating diverse viewpoints with a preexisting corporate culture can also create conflict. Ensuring that workers will support the particular values of a firm doesn’t seem inappropriate, but it might be difficult to accomplish while also encouraging diversity. Diversity might be a source of fundamental difference in values that must be balanced. Some scholars even suggest that job applicants be screened with regard to their values. Hiring 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.” Multiculturalism: Efforts at understanding multiculturalism, such as acknowledging and promoting diversity through celebration and appreciation of various cultures in the workplace, can serve both to educate and encourage the benefits linked to diversity efforts. 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 gender. While variance in fundamental standards might justify a sense of “bad fit” between a potential employer and employee, divergence in culturally based standards such as attire, hairstyles, or manner of speaking might instead be treated differently. Honoring diversity or promoting freedoms of expression can certainly be taken to an extreme and go too far. A divergence of cultures between a potential employee and one's clientele will render the hire ineffective. Though the law is slow to catch up to social mores, it does eventually come apace so these characteristics of diversity are often resolved by statute or other codification. On the other hand, a few gray areas remain. See the reading below by Gael O'Brien, "American Apparel and the Ethics of a Sexually Charged Workplace." 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. Example: Texaco was required to pay $175 million to settle a racial discrimination lawsuit based on taped conversations of executives using racist language and documented compensation discrimination against minority employees. In the aftermath of this “crisis,” Texaco has reformed and their subsequent numbers reveal that: 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 diversity training is now mandated for all workers, with management compensation tied to the attainment of success in implementing new initiatives. Affirmative Action: Raises questions regarding how to balance employee rights to fair treatment and due process in the workplace with competing employee rights. ** Teaching Note: Given the wealth of materials available that offer varying perspectives on affirmative action, staging a debate on the topic is a valuable way to get students to view the topic in a new light. Ask whether one person deserves a position more than another person. For instance, efforts to encourage greater diversity may also be seen as a form of “reverse discrimination” - in other words, discrimination against those individuals who are traditionally considered to be in power or the majority, such as white men. A business that intentionally seeks to hire a candidate from an underrepresented group might be seen as discriminating against white males, for example. 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 job more than another person? Efforts to encourage greater diversity can be seen as a form of “reverse discrimination”: discrimination against those traditionally considered to be in power or the majority, such as white men. The arguments on both sides of this issue have a tendency towards emotional persuasion. Example: 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 better able to speak with the teenage women in that community. Is it fair to hire a young, female, African American woman for the job, rather than a 40 year-old white male? What is the fairest decision? Fair to whom—the women in the community, the applicants, and other stakeholders? How should you decide? What are the consequences of the decision? Diversity issues raise other less apparent problems, such as the unique predicament of Asian Americans. A report by the U.S. Commission on Civil Rights documents widespread discrimination against Asian Americans. The report contends that the typical Asian stereotype of being hardworking, intelligent, and successful is actually a detriment to Asian Americans. This stereotype results in the problem of overlooking poor Asians and preventing successful Asian Americans from becoming more successful. An article about the report contends that the real problem is that Asian Americans have been succeeding without affirmative action and as a result the civil rights bureaucracy seems to look irrelevant. Some theorists argue that formal affirmative action measures have served to create a greater divide rather than to draw people closer. *Chapter Objective 14 Discussed Below* Ethical Issues Related to Affirmative Action Affirmative Action: refers to a policy or program that tries to respond to instances of past discrimination by implementing proactive measures to ensure equal opportunity today. Affirmative action may take the form of intentional inclusion of previously excluded groups in employment, education, or other environments. The use of affirmative action policies in both business and universities has been controversial for decades. 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. Even today, the law is not clear, and we must turn to values systems to provide direction when it comes to affirmative action. Affirmative Action in the Workplace: Affirmative action arises in the workplace in three ways. Legal requirements: Much of the law relating to affirmative action applies only to about 20 percent of the workforce, however: those employees of federal contractors 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 affirmative action” in order to remedy a finding of past discrimination. Voluntary affirmative action plans: Employers undertake these plans to overcome barriers to equal opportunity. These may include training plans and programs, focused recruiting activity, or the elimination of discrimination that might be cause by hiring criteria that excludes a particular group. A demonstrated underrepresentation of a particular group or a finding of past discrimination is required to justify affirmative action efforts under either of these latter two options. *Chapter Objective 15 Addressed Below* Basic Guidelines: After a number of legal opinions, employers are left with some basic guidelines for creating affirmative action policies and programs. Legal constraints to affirmative action: The affirmative action efforts or policy may not unnecessarily infringe upon the majority employees’ rights or create an absolute bar to their advancement. 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. It should unsettle no legitimate, firmly rooted expectation of employees. It should be only temporary in that it is for the purpose of attaining, not maintaining, a balanced workforce. 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 work forces. Some argue that affirmative action translates into current punishment of past wrongs and therefore is inappropriately placed because those who “pay” for the wrongs are unfairly burdened and should not bear the responsibility for the acts of others. University of Michigan Case: In 2003, the Supreme Court addressed affirmative action through a case of “reverse discrimination” at the University of Michigan Law School. Michigan’s 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 student body would contribute to the goals of the law school and that a critical mass of minority students was required to accomplish that goal. Two white females who were denied admission brought the lawsuit, arguing that admission of minority students with lower grades and test scores violated their rights to equal treatment. In support, General Motors Corporation filed an amicus curiae (“friend of the court”) brief, going out of its way to identify itself as a business stakeholder. In its brief, GM claimed that the need to insure 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 the economy depended on racial and ethnic diversity in the workplace. GM also claimed that prohibiting affirmative action would likely reduce 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.” Questions to consider: Does a diverse student body contribute to the ability of a school to accomplish its educational mission? Should the law prohibit, allow or require affirmative action programs? Would GM be ethically correct in adopting a similar affirmative action hiring policy?
Opening Decision Point Revisited American Apparel: Image Consciousness? Commentators are divided on the future of American Apparel under Charney’s management, with some predicting that his controversial decisions will drive the company into financial ruin and others proclaiming him a brilliant businessman. Although reported to be close to bankruptcy in early 2011, American Apparel secured a line of cash from a private investment consortium; by the end of the first quarter of 2012, sales had increased by 14 percent. The personal vision and management style of Dov Charney, the company’s founder and CEO, continues to define the corporate brand. It is interesting to consider differing sides of stakeholder opinions in the AA controversy. While one group or individual might consider a marketing campaign or a sexualized corporate environment to be “pushing the envelope” in a cutting-edge fashion, another might be brutally pained by the imagery, or find such a working environment to be hostile. 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.
Instructor Manual for Business Ethics: Decision Making for Personal Integrity and Social Responsibility Laura P. Hartman, Joseph R. Desjardins, Chris MacDonald 9780078029455, 9781259060588, 978125941785

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