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Why It’s Essential to Treat Corporations as Persons, Except When It’s Not

I’ve long held that you can’t understand much about business ethics if you don’t understand a bit about markets (their role and limits), corporations (their nature and purpose), and managers (their role and the limits on it). Of those three, it is perhaps the corporation that raises the most controversy, although the other two certainly generate their share.

A corporation is, very roughly, an entity recognized by the law and that exists independently of the people who form it. The general term “corporation” includes business corporations (Walmart, Amazon, etc.), as well as cooperatives (such as ACE Hardware and Dairy Farmers of America) and nonprofit corporations (including charities, universities, hospitals, etc.). Some churches are corporations too.

Corporations are treated as persons under the law just about everywhere. The notion has raised controversy in the US, especially in the wake of the 2010 Citizens United* decision of the US Supreme Court. But that controversy sometimes leads people to miss the fact that corporate personhood isn’t some idiosyncratic American thing. Corporations are treated as persons pretty much everywhere. (If you know an exception, let me know in the Comments section below). Take Canada’s criminal code, for example. The Criminal Code is full of sentences that say “every one who” or “every person who” does such-and-such is guilty of a crime. In the Definitions section of the Code, it clarifies that those terms (“every one” and “person”) are to be read as including organizations, and that “organization” means “a public body, body corporate, society, company, firm, partnership, trade union or municipality” (and certain kinds of associations).

What does this mean in practice? Well, first, it means that corporations can be charged with crimes under the Criminal Code. But corporate personhood under the law also means that corporations can do things like own property, make contracts, borrow money, and own other corporations. It also means that they have certain rights, like the right against unreasonable search and seizure.

The fact corporations are persons under the law — persons, not people by the way — is sometimes described as a “legal fiction.” A legal fiction is a kind of expedient that courts engage in on a practical basis. A good example is the “doctrine of survival”. That doctrine says that when two people die for example in the same car crash, and when it is not known who died first, the older person is taken to have died first, even in the absence of any evidence to that effect. (The order in which people have died is sometimes important, as when they are named as beneficiaries in each other’s wills.) This stipulation that the older person died first is a “legal fiction.” No one believes (or needs to believe) that it is true that the older person actually died first in a particular case. The court just needs a way to move forward, and having a standard assumption is better than, say, flipping a coin.

So, many have regarded corporate personhood as a legal fiction of that sort. We don’t need to hold, in other words, that corporations really have the properties that human persons have (rationality, or intentionality, or a soul, or whatever) in order to justify treating them as persons on public policy grounds. After all, it would be incredibly dangerous to the public good for courts not to include corporations as persons under the law, since that would mean that corporations couldn’t be sued for the harm they sometimes do, they couldn’t be forced to honour warranties, and the money you invest in them wouldn’t be safe from arbitrary seizure by the government. But still, the question lingers: is corporate personhood merely a legal fiction, or does regarding them as persons make good, literal, sense?

One mistake that it is important to avoid is this: some people argue that corporations just can’t be persons, because doing so would have morally intolerable consequences. If we let corporations be persons, this argument goes, then they get all the rights ‘real’ people have. And that’s intolerable. We can’t, for example, reasonably contemplate a world in which corporations — like human persons — have the right to adopt children. But it just doesn’t follow from according corporations personhood that they must have exactly the same rights as human persons. After all, personhood already comes in many varieties, with varying clusters of rights. Adult persons, for instance, have rights that child persons do not. And tourists generally have a different set of rights than citizens have. Personhood isn’t one thing, but many.

A person, at heart, is just a kind of agent — an entity capable of taking action and intentionally shaping the world. Since they area capable of intentionally shaping the world, they are also subject to being held responsible fo the choices they make in doing so.

So, are corporations persons, in that sense?

One option is of course skepticism. Skeptics argue that corporations can’t be persons, because they don’t have minds. Since they don’t have minds, they’re not capable of intending anything. And if they can’t intend, they can’t be persons. Versions of this view are popular among people of widely divergent political stripes. One prominent person who famously held a version of this view was the Nobel-prizewinning economist, Milton Friedman. Friedman made his view of personhood clear in his argument against Corporate Social Responsibility (CSR). He argued that corporations can’t have responsibilities, because they aren’t capable of taking action. A corporation’s managers take action, and so they can have responsibilities. But to Friedman, all this stuff about CSR was just silliness.

At another corner of the political landscape are folks who share Friedman’s skepticism, but for different reasons. A range of critics of corporate behaviour worry that if we attribute personhood to corporations, we’ll be so busy holding the corporations themselves responsible for wrongdoing that we’ll neglect to hold the flesh-and-blood humans within the corporations — the ones who actually ‘pulled the trigger,’ so to speak — responsible. But of course, that outcome isn’t necessary, though it’s surely plausible in particular cases. The fact is that the law generally makes it possible both to prosecute the corporation itself and to prosecute the relevant executives for their role in corporate wrongdoing. And besides, this practical worry doesn’t exactly settle the metaphysical question.

There have been various attempts, though, by philosophers to argue that literal corporate personhood is indeed possible. Peter French, for example, argued forty years ago that corporations are indeed capable of intentionality. French argued that if you want to locate corporate intentions, you just need to look to what he called the corporation’s “Internal Decision Structure.” That is, look to the corporation’s rules about things like whose signature is required to authorize what decisions, and look as well to the corporation’s stated objectives. A decision that is in line with corporate objectives and that is made through the proper administrative processes is, in every relevant sense, made in line with corporate intentions.

Other attempts have been made to outline ways in which we can justifiably understand corporations as persons, including for example Denis Arnold‘s attempt to formulate a theory of corporate personhood based on the capacity for planning — a capacity that corporations generally do have, above and beyond the planning capacity of any individual employed by the corporation.

But the issue is, shall we say, far from settled.

My own view is that much of the hubbub about corporate personhood results from a wrongheaded kind of essentialism — a search for the true essence of the corporation, for the truth about what a corporation really, really is, at heart. Is the corporation essentially (and not just incidentally or for convenience) a person? A group of persons? A nexus of contracts? An engine of wealth creation? A mechanism for rapacious aggregation of wealth?

I think such essentialism is a mistake. The corporation — indeed, any particular corporation — is many things to many people. And there are many lenses through which we can view the corporation, lenses that make more or less sense depending on the topic at hand.

I argued above that for a range of mundane purposes, thinking of the corporation as a person (an entity capable of having rights and duties) is essential. For corporations not to have at least some rights and responsibilities would be disastrous, both in human and in economic terms.

But for other topics, it may be that thinking in terms of personhood obscures more than it illuminates.

Take, for example, the question of corporate political activity. Should corporations be allowed to use their power to lobby government? Should corporate spending on political communications be regarded as protected ‘free speech’ (and hence virtually unlimited)? The latter question was dealt with in the Citizens United case, and many people take that case to have hinged on the question of personhood. That is, they take the court’s decision as having expanded the political rights that corporate persons have.

Independent of that court decision (which as a matter of fact barely mentioned corporate personhood), I think it’s basically unhelpful to think of corporate political action in terms of personhood. In the political realm, personhood is a fraught concept, and one that has historically been the subject of important battles. It was only in 1928, for example, that the Supreme Court of Canada ruled that women were indeed persons under the law (and hence eligible to be appointed to the Senate). Discussion of corporate personhood, in this context, inevitably leads to awkward and contentious comparisons with such hard-won legal changes.

I think that a good argument can be made that politics is fundamentally about relations between citizens (and between citizens and their government). And it’s unhelpful to think of corporations as a “new” kind of persons inhabiting this domain, and to try to figure out what political rights these new, artificial beings “really” (essentially) have.

What I recommend instead, for discussion of ethics in corporate political activity, is to view corporations as a particular kind of instrument. So rather that asking whether corporations may legitimately lobby government, I suggest asking whether it is legitimate for citizens to use corporations as a mechanism for lobbying government (given that lobbying government is undeniably a right every citizen has), and to ask what the proper limits are on citizens’ use of that mechanism. And given that citizens have a right to free speech with regards to politics, what limits (if any) are there on the use of the corporation as a tool for conveying (and amplifying) their views? Compare: the right to free speech doesn’t permit you to use a bullhorn to express your views six inches from your neighbour’s ears. There are limits on the technology you may use to express your views.

Thinking of the corporation as a technology means asking an entirely different set of questions than thinking in terms of personhood.

When thinking about the ethics of corporate political action, thinking in terms of personhood is a red herring. We don’t need to ask whether the corporation is a person in order to talk about corporate free speech, any more than we need to think about my house as a person in order to ask whether my house should be free from arbitrary search by police. Both the corporation and the house serve human ends, and it is in those terms that we ought to be thinking.

Corporations must be treated as corporations, for many purposes, in order to preserve the rights and protect the interests of the persons involved with them. Owners, customers, employees, and creditors would all be worse off if corporations were not treated by courts as persons. But personhood is best thought of as a lens — useful for some purposes — rather than as a deep truth about the nature of corporations.

That is why it is essential to treat corporations as persons, except when it’s not.

 


*Citizens United v. Federal Election Commission, 558 U.S. 310 (2010)


(This is based in part on a presentation I gave on November 22, 2019, in the Business Ethics Speakers Series, and a paper I published in the Georgetown Journal of Law & Public Policy, called “The Right to Bear Corporations”).

Is the Polaris RZR the New ‘Ford Pinto’?

Polaris RZR raising dustFor years, the ‘Ford Pinto Case’ was a staple of business ethics classrooms. As readers of a certain age will know, the Ford Pinto was discontinued in the early 1980s, in part due to controversy over safety. The potted version of the case, as studied in hundreds of business ethics classrooms, goes roughly like this: in the late 60’s, Ford decided it needed a small, light, cheap car to compete with Japanese imports. So in the early 70’s, Ford started producing the Pinto. Shortly after, the company started receiving reports of Pintos catching fire after relatively minor rear-end collisions. People died, or were badly burned, and some lawsuits ensued. The problem was traced to a design flaw having to do with the design of the rear bumper and the placement of the gas tank. Engineers concluded that an easy and effective fix would be the addition of a small plastic shield between the gas tank and some protruding bolts that otherwise tended to puncture the tank in the case of collision. The fix would cost $11 per car. But some quick math showed that an $11 fix to about 12 million cars would cost a lot more than what the company was likely to have to pay out in lawsuits to victims and their families. So, they kept making and selling the cars, minus the $11 fix. And the fiery crashes kept happening, until Ford finally canned the Pinto in 1980. (You can find more details here, via Wikipedia: Ford Pinto fires.)

So, that’s the standard version. And I’ve heard it referred to in the hallways of business ethics conferences within the last year. As far as it goes, the case is a great way to generate discussion about the profit motive, about cost-benefit-analysis, and about the ethics of putting a dollar-value on a human life.

Problem is: the ‘standard’ version isn’t entirely true.* First, the Pinto was not unusually fire-prone, when compared to other cars its size at that time (like the VW Beetle). The Pinto got some bad press, but it wasn’t exactly unusual, in terms of safety. And in cases like this, what’s ‘normal’ in the industry matters (though it’s not all that matters). Second, the internal Ford memo that showed the cost-benefit math was directed at regulators, and there’s little evidence that it was even seen by the Ford execs who made the decision to go ahead with production. So while that math was done, it’s not clear that it was acted upon. None of this is to say that Ford was blameless, but those are pretty important details, from the point of view of assigning blame.

Fast-forward roughly four decades, and another manufacturer is in the spotlight. A recent NYT story outlines the case of the Polaris RZR (pronounced “Razor”), a 4-wheeled off-road recreational vehicle that has been at the centre of a number of recent lawsuits. And that story that is at least  superficially similar to the case of the Ford Pinto: there are fiery deaths and injuries, apparently traceable to a clear design flaw, and ignored by the company for years.

A few more points of similarity, and a few differences, between the two cases, based on what the NYT has reported:

Baseline statistics: The NYT reports that “2013 to 2018, Polaris Industries issued RZR recalls 10 times for fire hazards, far more than for any competing product.” In other words, the RZR hazard is not just bad, it’s remarkably bad. This seems to be a difference between the RZR case from the Pinto case.

Design flaw: The NYT reports that the RZR’s new, souped-up engine “has an exhaust pipe that is housed inches behind passengers and too close to key components without adequate ventilation, lawsuits have alleged, citing reviews by mechanical engineers.” And: “On the ProStar [engine], the exhaust header pipe is connected to the front of the engine, behind the seats, before turning 180 degrees and ending at the rear of the vehicle.”

Tradeoffs: In both cases, the question of tradeoffs — potentially deadly ones — are front and centre. In the Pinto case, the tradeoff was supposedly, at least, made by Ford: they decided that keeping the car cheap was better for them, and maybe better for cash-strapped customers, too. In the Polaris RZR case, the tradeoff is perhaps also being made by customers. According to the NYT, the RZR remains popular because, “For many customers, any danger is overshadowed by excitement.”

In both cases, it is tempting to chalk up the death counts to a simple matter of corporate greed: “Hey, the profits are awesome, so let’s keep selling these things, regardless of the risks to consumers!” But in both cases it’s incredibly unlikely that things are as simple as that. Large corporations are complex entities, composed of people clustered into units. Some of those people, and some of those units, will yes likely be driven by greed. Others will be driven by faith in their product, by personal ambition, by professional pride, or by a drive to “hit the numbers” — whether or not hitting those numbers is actually conducive to any particular corporate goal.

 


* Some of the details are taken from: Matthew T Lee’s and M. David Ermann’s paper,  “Pinto ‘madness’ as a flawed landmark narrative: An organizational and network analysis.” Social Problems 46.1 (1999): 30-47.

Ethics in Sales — Across the Organization

Walmart recently announced that it would raise the minimum age to purchase tobacco products at its stores across the United States, effective July 1. (See also their press release here.)

The ethics of sales involves many different issues, including what you sell, who you sell it to, the price you sell it at, and the information you provide in the process.

But this Walmart story highlights another key aspect of the topic known casually as ‘the ethics of sales.’ And that’s the fact that the ethics of sales isn’t just about the behaviour of sales professionals. Of course, the behaviour of sales professionals — from the helpful 19-year-old on the floor at Best Buy, to the person who sold you that shiny new SUV, to the big pharma sales rep visiting physicians’ offices to promote the latest antidepressent — is crucially important. But not every company has ‘salespeople’ in that sense of the term, and not all sales work is done by people with the word “sales” in their job title or description.

The Walmart story is a case in point. The key ethical sales decision in this case was one made by not by salespeople, as such, but by head office — it was a policy decision. The relationship between corporate policy and front-line decision-making is, of course, complex. Sometimes head office has the right idea, ethically, but has trouble incentivizing salespeople properly. In other cases, head office may have an ‘anything goes’ attitude, and customers have to rely on the basic decency and humanity of the sales staff to protect them.

And in some cases, even professional sales staff won’t have the knowledge and skills required to do what is best for customers. Recall the 2012 case of the California insurance agent who got in serious trouble (lost his license, got it back) for selling a complex policy to an elderly woman with borderline dementia. Insurance agents know lots of things, but how to assess cognitive capacity may not be one of them.

The Walmart case also raises the role of customer-facing employees a few steps farther down the professionalism scale than licensed, highly-educated insurance agents, namely the checkout cashiers taking home pay at-or-near the minimum wage level. One account of Walmart’s decision notes that the company will be sending ‘secret shoppers’ to Walmart stores — presumably, underage individuals who will attempt to buy cigarettes. Cashiers who fail the test may be disciplined or fired. Two things need to be said about that: first is that those cashiers are among Walmart’s more vulnerable employees. I hope they receive training that makes it at least somewhat fair to put the pressure on them. The other point is that this story illustrates how ethics in sales needs a top-to-bottom approach. Selling ethically requires the right top-end policies, the right mid-level sales professionals, and the right training for the front-line folks interacting directly with customers.

Why I’m Not Buying Nikes This Week

I’ll get right to the point. I’m not buying a pair of Nikes this week because I don’t need them.

No, I’m not boycotting Nike. Far from it. I think Nike’s recent move to feature Colin Kaepernick in their ads is strategically very clever, and more generally I’m supportive of Kaepernick’s kneeling as a form of protest, and so by extension I’m supportive of Nike’s support of Kaepernick. And no, I don’t think there’s any need to decide between those two analyses: a given business decision can be both strategic and ethical, opportunistic and morally laudable. I think Nike has scored well on both counts, in the present case.

But buying a pair of Nikes I don’t need would be almost as silly as burning a pair. I’ve already got a good pair of athletic shoes for running, and I’ve got a couple of nice pairs of sneakers for walking around town.

And so I think buying a pair of Nikes this week would be foolish. For starters, it would be a foolish waste of money I could spend on something else—like, say, a $175 donation to the ACLU, or the NAACP. And generally, buying Nikes wouldn’t accomplish much. Yes, in principle I’d like to pat the company on the back, but me shelling out for a pair of shoes is hardly going to be noticed by a company with over $30billion in revenue. Nor is anyone going to notice my flashy new Nikes, and nod in appreciation that I’m on the right side of this debate. When so many people sport a particular logo—sporting it for so many different reasons—that logo’s significance as a signal is necessarily close to zero.

Finally, this issue is a good opportunity to talk about what values we think should determine our behaviour in the marketplace. Do we really want politics creeping in? Is that a good thing? Should lefty consumers really stick to buying shoes (or cars, or broccoli) from lefty producers, and should right-wing consumers stick to buying from right-wing companies? Or should we instead stick, generally, to buying good, well-made products that suit our needs? Markets work better when we ignore each other’s political leanings. Voltaire noted it in the 18th century, pointing out how marvellous it was that the Christian, the Jew, and the Muslim could set their religious differences aside in order to engage in trade. And so, as my friend Alexei Marcoux, argued more recently, we should be wary of letting the marketplace become what he calls a ‘market for values.’ “The market for values,” he argues, “undermines and displaces toleration in the most important venue for social cooperation in a commercial society—the market.” The marketplace is a place where we learn to accept differences of opinion; we shouldn’t jump at opportunities to let our differences of opinion interfere we behave in the marketplace.


See also: Ethical Consumerism (Concise Encyclopedia of Business Ethics)

Let’s Celebrate Business Integrity When We See It

A friend-of-a-friend of mine runs a mid-sized construction company in Latin America. As many readers will know, that industry in that region has a reputation for a relatively high degree of corruption, and in particular bribery.

This friend-of-a-friend says he absolutely refuses to give bribes, in spite of the obvious temptations. When asked whether he loses business because of it, he is candid. “Yes, of course.” And when asked whether he still does lots of business, and still makes a good living, he is again candid: “Yes, for sure!”

When was the last time someone told you a story like that?

We don’t often enough tell stories of integrity when we talk about business ethics. As a professor, I know I’m guilty of this. What cases get discussed in a typical business ethics class? You know the list well. Enron. Volkswagen. Wells Fargo. Equifax. Walmart. Spend 12 weeks discussing companies like those and you could be forgiven for thinking that the world of business is a rotten place. For a student, that may mean graduating and heading off into a career armed with a particular preconception about what kinds of behaviours are normal in business, namely rotten ones.

But I’m convinced that good behaviour, by people of high integrity, goes on all the time in business.

This week’s case in point: a pharmacist in Cape Breton, Nova Scotia, has decided to stop selling homeopathic remedies. Why? Because he looked at the available evidence (he’s got the relevant scientific training) and realized that there’s no good evidence that homeopathic remedies actually work.

And as a business owner, and as a professional, he decided he simply couldn’t continue to sell those products.
(I’ve explained in a peer-reviewed paper why selling unproven health products is unethical. See: Alternative Medicine and the Ethics of Commerce.)

Feel free to disagree with me (and this pharmacist, and the entire scientific community) about the effectiveness of homeopathy. Feel free to swear that it works for you. My grandmother swore by the power of 4-leaf clovers. Others swear they’ve seen a psychic bend a spoon with his mind, or seen a magician saw a woman in half. The point is that this pharmacist has the training to evaluate evidence, and determined that—by the scientific standards his profession cleaves to—the evidence for homeopathy just isn’t there. Such a realization puts any qualified health professional who also happens to run a business in a sticky position. Do you sell something just because people will buy it? This one pharmacist’s answer, apparently, is “no.” It’s worth noting that the answer of most large pharmacy chains is “yes.”

But back to my main point: we need to celebrate integrity when we see it. It’s out there. It may be more common than its absence, it’s just that bad behaviour gets all the press. That’s a shame, and we should all do our part to nudge things in the opposite direction once in a while. The public’s perception of the world of business would benefit from it. And my impressionable students — soon to be your youngest employees — will be shaped by it.

Starbucks is trying to please everyone, and it’s not going to work

Should Starbucks care more about the homeless, or its employees? Should it care about them equally? Should it even be in the business of balancing such interests? More generally, how should a company prioritize its stakeholders? Should a company try to do the most good, or try to do the most good for those most intimately involved in the company?

These questions came to mind recently following a random interaction on Twitter. Someone tweeted the story about Starbucks trying to figure out just how welcome the homeless are in its stores, and in particular in its bathrooms.

One respondent said, roughly, that maybe the least Starbucks could do is to put a donation jar on the counter (a common enough thing!) and donate the proceeds to the homeless.

Nice idea. But consider this. Should the donation jar replace the tip jar that’s often on the counter at Starbucks? After all, there’s only so much space on the counter. And if the donation jar replaces the tip jar, then the company is implicitly prioritizing the homeless over its own not-terribly-well-paid employees. Even if they were to find room for two jars, having two is still going to means less tip money for employees. I only get so much change back when I pay for my latté, and it’s either going in one jar or the other, or is (less likely) getting split in half. Who should the company side with—poor-but-employed employees, or the homeless?

The fact that the answer isn’t obvious (and if you think it’s obvious, you’re not thinking hard enough) suggests two broader lessons.

One is that it’s a mistake to think that business ethics is easy, and that companies should simply “clean up their act” and “do better.” Critics too often assume that greed is the simple reason that companies aren’t doing what they want them to do. But sometimes it’s because doing what Critic A wants you to do is going to make you an evil-doer in the eyes of Critic B.

The second lesson has to do with the popular but ultimately impotent notion of “creating shared value.” That notion, made popular by Michael Porter and Mark Kramer, suggests that the key to socially responsible business is to focus on the “shared value” that is created whenever business is done. As others have pointed out, the notion that business is about value creation is hardly new. That’s Capitalism 101. How to create value is the key question for all would-be business people. But the question of how that value gets shared—within whatever discretionary limits market forces permit— is the really hard question for ethics.

The buck stops here: why leadership requires taking responsibility

When and Why are Leaders Responsible?

The idea that leaders bear ultimate responsibility for the success or failure of their organizations is an old one. Maritime tradition has long held that “the captain goes down with the ship.” And US Harry President Truman’s desk was famously adorned with a plaque that read, “The buck stops here!” Leaders historically have accepted, at least in theory, that they bear responsibility for both the good and the bad.

It’s worth pointing out that the responsibility at stake here is not direct causal responsibility. Sometimes leaders make disastrous decisions, but responsibility goes well beyond such cases. The reason the captain goes down with the ship (or, more precisely, is expected to be last off) is not that the boat’s sinking was necessarily her fault. And the fact that Truman eschewed passing the buck didn’t imply that he thought everything that happened in a very large federal government was literally his fault: he was saying that morally he accepted responsibility, which meant that accepting responsibility was his job.

Ships and governments aside, accepting responsibility is something we expect in a business leader, too. Unfortunately it’s alarmingly common to see CEOs fail to accept responsibility for their companies’ financial ups and downs, let alone for any moral failings.

But then, in a complex organization, why should a leader accept responsibility?

One possible answer is that, well, someone needs to do it. When passing the buck is common, but there’s a need for accountability, the buck has to stop somewhere. And maybe that’s part of what defines the job of head honcho: you’re the one who takes the blame. But that’s not much of an explanation. If it were merely about the need for someone to take the fall, surely we wouldn’t choose the one person who had been hired because she or he has the talent to make things better. The CEO, in other words, would be an unlikely sacrificial lamb, if a sacrificial lamb were all that was required.

Another possibility is that it is merely a contractual term: you’ll get to be boss, and we’ll pay you well, but if things go south, you’re going to get the blame. Taken literally, this would imply a kind of strict liability: it doesn’t matter what you did, you’re going to be punished anyway. This arguably makes the leader into a kind of whipping boy, which, in the historical sense, was a boy who could be punished by a prince’s tutor for the transgressions of the prince who, as royalty, was himself immune to being punished personally. But surely for leaders an actual causal connection to the success or failure of the organization is part of the puzzle.

A third approach would be to understand ultimate responsibility in terms of motivation: when you know that you’re going to be held responsible if things go badly, then presumably you’re going to work hard to make sure that things go well.

If that’s the case, it’s worth spelling out the structural features of leadership that make attribution and acceptance of ultimate responsibility make sense. That is, what features of being a leader make it possible for a leader reasonably to accept that she will ultimately be held responsible for any- and everything that goes wrong?

A number of distinct features of most leadership positions (and certainly all corporate leadership positions) are worth singling out:

1. The power to choose your team: Corporate leaders have ultimate (direct or indirect) control over who is hired, and who is fired. If someone screwed up, it’s because you either hired them, or you hired the person who hired them. So, you’re responsible.

2. The power to put policies in place: Corporate leaders are responsible for seeing that the right policies are being put in place. If things went badly because people followed bad policies, it’s your fault. If things went badly because people didn’t follow policy, that’s your fault too (see #1 just above).

3. The power to shape culture: Culture is the tool that allows leaders to shape behaviour in ways that have impact even when they’re not personally around. This starts with tone at the top, but includes everything from how compensation schemes are structured to the behaviours that get celebrated and the stories that get told and retold.

When leaders have these powers, it makes sense not just for them to have formal responsibility, but for them to be seen as having a level of control that implies sufficient causal responsibility to underpin ultimate moral responsibility.

Of course, where leaders (at any level) lack one or more of these tools, it is harder to make sense of holding them accountable. This itself has two implications.

First, we need to be cautious when blaming leaders for the failures of their organizations. We need to look at whether the leader in question actually had (in theory and in practice) the power to hire and fire, the power to shape policy (which is sometimes constrained by legislation, collective agreements, and so on), and the power to shape culture (which often takes a very long time).

The flip side of that coin is that we need to realize that precisely because leaders are going to be held responsible, we need to make sure they do have the relevant powers. The principle of ultimate responsibility doesn’t just apply to CEOs and other top-tier leaders: it regularly gets applied to leaders at all levels. This implies one more responsibility for top-tier leaders, namely the responsibilityto make sure that leaders throughout the organization have the tools they need.

Unlike most boycotts, the #BoycottNRA campaign might really work

If the NRA were a publicly-traded corporation, I’d be short selling its stock. Not because the organization is going away any time soon, or because I think Americans are going to repeal the Second Amendment any time soon. But because a group of high school students seem to be doing substantial damage to its already divisive brand.

And I’m willing to predict that its brand is going to suffer serious and meaningful damage over the coming weeks and months.

The primary reason is, of all things, a commercial boycott, spearheaded by the student survivors of the recent Florida school massacre, and their supporters. It’s one of the few boycotts I’ve seen that I think actually makes sense, tactically and ethically.

It’s an unusual boycott, in many ways. It’s not aimed at the NRA’s core business—for a membership-based organization like the NRA, that would mean reducing membership. Yes, the boycott is officially called (and hashtagged) #BoycottNRA, but those involved aren’t boycotting the NRA itself, burning their membership cards and so on. They’re boycotting companies that do business with the NRA, and in most cases this means companies that provide benefits to NRA members in the form of things like discounts on purchases or cash-back NRA-branded credit cards. And a stunning string of companies—from Avis to Delta Airlines to MetLife to Symantec—have already caved to the pressure.

(Note: There’s a Wikipedia page about the boycott, with a running tally of companies that have succumbed to the pressure. See: 2018 NRA Boycott.)

Boycotts are mostly stupid, and often immoral. They seldom have much impact, and are often more likely to hurt low-level employees than CEOs or shareholders. Front-line employees, after all, are the ones who get yelled at by angry boycotters, and are most likely to be lose their jobs if the targeted organization ends up needing to tighten its belt. Their role, in most cases, is to let people vent, to engage in virtue signalling, and to give them a focus for their indignation.

But this one, I think, is different. For one thing, the boycott is so diffuse—targeted as it is at dozens of companies—that little real impact can be expected to be felt by those companies, in terms of the bottom line. (Sure, a bunch of people will give up using FedEx—one of the few major companies to hold its ground against the boycott— but are they really going to boycott two dozen companies, and suffer that much disruption of your consumption habits? I bet few will.) This means that no innocent bystanders are likely to be harmed. The pressure is primarily symbolic, and so are the concessions.

The NRA itself is characteristically full of bravado. “Let it be absolutely clear,” the organization said recently in response to the boycott. “The loss of a discount will neither scare nor distract one single NRA member from our mission to stand and defend the individual freedoms that have always made America the greatest nation in the world.”

Well, no kidding. But surely that’s not the point. Hurting the NRA by driving a wedge between them and a couple dozen national brands is intended to send a signal to politicians who are cozy with the NRA. Affiliation with the NRA is no longer a clear plus, if it ever was. As the NRA’s brand weakens, so are those relationships likely to become less cozy.

And that’s a good thing.

In just about any other industrialized nation, the NRA would be a quaint fringe group. And its antiquated understanding of what a citizenry needs in order to safeguard itself against tyranny would be laughable, if it weren’t so dangerous. It’s long been said that the pen is mightier than the sword. We’re about to find out whether the boycott is mightier than the gun.

Ram Trucks and MLK

It has to be admitted that the Ram Trucks ad featuring a speech by Martin Luther King, Jr, and played during this year’s Super Bowl, was in fact reasonably subtle. The company’s logo only appeared at the very end, and without much fanfare. In a world of yippee-ki-yay truck ads, featuring manly men doing implausibly manly things in their oversized, manly trucks, an ad focused on promoting service to others set to the inspiring words of true hero is kind of refreshing. Or could have been. Except this is 2018, so what on earth was Fiat Chrysler—makers of Ram trucks—thinking?

A lot of people are referring to the add, and its use of King’s voice to sell trucks, as “tone deaf.” Some on Twitter were merely “disappointed.” Some referred to it as being in “really poor taste” and “insulting” and even “exploitative.” Others referred to it as an act of appropriation. A number mentioned the irony of celebrating a black civil rights activist during the Super Bowl, given that a black football player—Colin Kaepernick—has effectively been blackballed for his activism.

Now, apparently Fiat Chrysler had the consent of King’s family. That’s clearly important, legally and morally. But members of the family aren’t the only relevant stakeholder here. When an individual, or his memory, is a national treasure, there’s a lot more to consider. Clearly, judging by the blowback, an awful lot of people (of all races) feel that they have a stake here, and felt that the commercial was problematic.

It’s useful when examining things from an ethical point of view to start out charitably. So let’s grant that it’s entirely possible that someone at Fiat Chrysler just really, really admired Dr King, and wanted to be able to use 30 incredibly expensive seconds of Super Bowl airtime to play his words. They are, after all, very good words. More people should hear them. Having over a hundred million people hear them all at once is, in principle, a very good thing. But…2018.

The controversy over the commercial is reminiscent of the controversy over businesses attempting to honour veterans, for example by marking what is called Veterans Day in the US, and Remembrance Day in Canada. (On that topic, ssee my older piece, The Ethics of Businesses Honouring Remembrance Day. See also: How Should Companies Memorialize 9/11?) Honouring veterans is generally a good thing. Capitalizing on the respect we all pay them, however, is a bad thing. The difference here, though, is that the world sort of forces the veterans question upon businesses by designating a special day for honouring veterans. It happens on November 11 (in North America) and on that day, every year, companies are bluntly faced with the choice: either mark the occasion (and risk being accused of capitalizing on the sacrifices made by veterans) or ignore it (and risk being accused of, well, ignoring it). But with regard to a figure like King, advertisers have the option of just staying clear. And it’s easy to see the case—both the business case and the moral case—for diving in: linking your brand to the words of a hero is (if it works!) a marketing coup. And if you’re going to celebrate heroes, then it seems like an especially a good thing to celebrate one who fought for such an important cause.

But then, celebration bleeds so readily into commercialization. And maybe it’s literally impossible for a company to do one without the other. Maybe it would be possible, in a fairer world, a world in which so many people didn’t have so much reason to guard King’s image and words so jealously.

Maybe the folks at Fiat Chrysler needed a bigger focus group, or one that was simply more woke.

Was it right to fire an employee for giving President Trump the finger?

Is she defiantly hero, or a disrespectfully flippant? The woman who flipped off Trump has lost her job. Did her employer act ethically?

Juli Briskman—irked that the president was golfing when he ought to be focusing on more important matters—raised her middle finger at Donald Trump’s motorcade as it zipped past her on her bicycle near Trump National Golf Club last month. And for that, she was fired.

I’ve written a few times about people being fired for their off-the-job behaviour (See: Fired for Being a Jerk in Public and Should Rioters be Fired? and Hydro One Was Wrong to Fire Hooligan Employee). In particular, I’ve argued that while it is often satisfying to see some idiot fired over their bad behaviour, we should be cautious about endorsing such moves by employers. For one thing, we should be cautious about endorsing the intrusion of our employers into our private (or at least, non-work) lives. For another thing, there are too few checks on employers’ power: when people are fired for off-duty behaviour, there’s a chance that this sort of ‘punishment’ will be capricious, and disproportionate. It is, in short, a rather rough sort of justice.

Ms Briskman’s employer is—or rather was—Akima L.L.C., a holding company that “oversees government contractors”. Now, one of the sometimes-legitimate reasons for firing an employee over their off-the-job behaviour is when the employee’s behaviour stands to damage the company’s legitimate business interests. And when you’re a company whose business relies on government contracts, having an employee publicly insult the president is a serious concern. So while those of us who agree with Briskman’s sentiment may regret the loss of her job, we should hardly be surprised, and perhaps not offended, at her employer’s actions.

But this case serves a useful purpose in highlighting the role of critical thinking in ethical decision making, because I sense a lot of people out there had a very different reaction to this case than they did to some of the previous high-profile cases of employers firing employees for high-profile off-duty shenanigans. If your moral reaction to this one is different from the last one, you need to think about why. Are you being inconsistent, or is there actually some unspoken principle according to which the rightness of the employer’s action is determined? Is that unspoken principle something other than your own political leanings?

A good test of your moral intuitions is generally to put the shoe on the other foot. In particular, when you applaud the exercise of autonomous judgment or freedom by some individual, group, or company, ask whether you would still applaud it if the individual, group, or company had values different from your own.

Applying that to the question of firing employees for their “bad” behaviour off the job: If you think you are in favour of an employer feeling free to fire an employee for behaviour that you think despicable, ask whether you would like employers to follow the same standard when the behaviour in question is one with which you’re sympathetic. If not, then you should probably have second thoughts about the previous cases in which you endorsed rough justice being handed out by employers.

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