Ethics and Liability

Ever since the Ford Motor Company people chose to fight the product liability lawsuits instead of paying the extra few dollars a copy to put a safer gas tank on the Pinto in 1971 – and were caught doing so and subsequently taken to the cleaners – everyone has known the risks of making such decisions, and the importance of not putting all of the details into a “smoking gun” memo signed and countersigned by all of the company’s top executives if you do. That hasn’t kept many additional companies from making the same kind of unsound choices, but I’m not going to write 500 words about why you shouldn’t do something that is ethically reprehensible as well as stupid; I’m going to assume that anyone smart enough to operate a computer already knows that.

A rather more complex question that does come up these days is what to do about such a situation if you are the one who stumbles upon it, as opposed to the one who created it in the first place. Of course, every criminal attorney has a sworn duty to turn in his or her client if the client confesses, and every citizen has a duty to report crime (including criminal conspiracy) if they have knowledge of one, but unfortunately, not all of these cases are that simple. In the movies, characters like Michael Clayton or Erin Brockovich can expose the reckless or greedy criminal actions of the evil corporation and walk away as heroes, but in real life there are consequences for the “good guys” as well – sometimes even worse ones than the “bad guys” will suffer.

Blowing the whistle on your employer’s actions could easily destroy your career; it might lead to criminal charges against you if the government feels that you were culpable for whatever wrongdoing was involved, and it will almost certainly lead to civil suits against you on the part of any corporate officials not convicted of anything serious. Even worse, if your whistle blowing does bankrupt the company, or even seriously reduce its value, you will have cost the stockholders vast sums of money, possibly destroying the lives of people whose only crime was investing in the wrong mutual fund. If the company was the primary employer for a community, you may have turned that community into a ghost town and destroyed the lives of all of the people who worked there, sold things to the people who worked there, provided services to the people who worked there, and so on.

Now we all know that it isn’t the whistle-blower him or herself who is responsible for all of these consequences; it’s the corporate executives who made the original decision against the public interest who caused all of this hardship. But while the executives may or may not suffer the consequences (they may be able to avoid personal financial responsibility in the civil trials – and it’s always possible they will beat the criminal charges if any are ever brought), the person who blows the whistle will almost always have to live through the fallout that results. And while there are laws on the books that are supposed to protect the whistle-blower, they can only protect you from overt actions by your employer; they can’t save you from never getting another job in your industry, never receiving the assignments you want, or from having the people whose lives you have inadvertently destroyed spit on you in the street.

My question of ethics for the day is this: If in real life, the person blowing the whistle will receive no reward, and may very well give up their career, their fortune, their home, their freedom or even their life, can we blame them for not having the courage to make that stand and blow that whistle? If they have spouses and children, can we blame them for not being willing to hazard their families in order to do the right thing? And if we can, then don’t we, as a society, owe those people something more than the lame, weak, useless excuses for protection that the current “Whistle Blower” statues provide? If we fail to enact real protections for such people, isn’t it all of us who are responsible for this?

It’s worth thinking about…