Fairness Dilemma:When Should Past Misdeeds Affect Present Trust?

The Shirley Sherrod case raises a broader ethical question that surfaces frequently, both in current events and in private life. When, if ever, is it fair to lower one’s opinion and level of trust in an individual’s character based on events that occurred long ago?

In Sherrod’s case, an twenty-four year old incident she cited in a speech before the N.A.A.C.P. as a lesson in how not to behave got her fired from her job at the U.S.D.A., condemned by the N.A.A.C.P., and called a racist by conservative news commentators. This is an easy call: her instance of racial anger and bias should not be held against her for several reasons:

  • The event occurred over two decades ago. It is unreasonable to assume that people cannot adopt new attitudes, principles and patterns of conduct after many years of experience.
  • She related the incident herself, using her own misconduct as a cautionary tale for others. This creates a reasonable assumption that she rejects her past conduct, and is willing to have others judge it harshly.
  • Absent evidence of any more recent conduct that mirrors that of the incident, there should be a presumption that her current conduct, not her conduct of two decades ago, is the more accurate measure of her character.

Still, it is difficult to state a rule that should govern in all such situations. Should some kinds of conduct cause a diminishment of trust and regard even if they are far removed from the present? Whether or not they should, it is certainly undeniable that when the past conduct is serious, unusual, and seems to directly contradict the character and principles an individual is currently trying to project, it will create distrust. If it is serious and unusual enough, it should create distrust.

For example, an executive director of an anti-child abuse organization will not be able to continue at his job if the wake of a disclosure that he sexually abused a minor many years ago, nor should he. His behavior was unusual and particularly difficult to reconcile with someone in his current position. If there are qualified executives without a history of abusing children, there is no reason to have someone with such a history run an anti-child abuse organization no matter what his other virtues and accomplishments in the intervening years. Similarly, an expert witness who had been convicted of perjury decades ago is still going to be accorded less reliability in a trial than a witness without a history of lying under oath. The proper weight to be given to the unethical acts far in the past was a prominent controversy in the careers of  the two recently deceased Democratic Senators. Robert Byrd was an official with the Ku Klux Klan; Ted Kennedy negligently caused the death of a young woman, and used his influence and money to cover it up. Was it fair for these past acts to lessen the admiration and trust some citizens had in these lions of the Senate?

Sure. But we are talking about very serious misconduct that most people never engage in or even consider: negligent homicide, leadership in a terrorist organization, child abuse, the crime of perjury. When the conduct is more common,  the kind of unethical conduct that can result from immaturity, emotion, typical bad judgment or other factors, it is unfair and illogical to project the implications of the past conduct on the individual involved years after the fact. This is particularly true if the individual openly admits the conduct and has demonstrated by his or her subsequent acts that he rejects and deplores what he did.

A common example is illegal recreational drug use by someone when they were a college student. That prior conduct tells me absolutely nothing about the individual’s attitudes toward drug abuse and the duty to obey the law. The conduct was not especially heinous nor was it particularly unusual. In 1969, as a college freshman, I fudged some of the data on a psychology experiment…essentially cheating. It bothered me immediately; I never did anything like that again. Should that mistake of four decades ago count against my reputation as a professional ethicist? In fact, I use that incident to inspire me as an ethicist. I am not an ethicist who cheats, nor am I an ethicist who cheated. I am someone who became an ethicist in part because I did cheat. I never thought about ethics then; the next year, I selected to take my first course in the subject, and began the study of character in leadership.

Might a past misdeed be a symptom of a deep character flaw that still influences an individual’s thoughts and conduct? Of course. Logic, fairness, kindness, and the Golden Rule, however, dictate that the most ethical course is to judge an individual’s values based on recent, not ancient history. Each case is different, but the weight given to any instance of past misconduct should be proportional to a combination of factors:

  1. How long ago was it? If it was longer than ten years ago, there is a strong likelihood that it is no longer relevant, and the likelihood gets stronger with the years.
  2. How old was the individual when the act took place? Anything that occurred prior to the age of 22 can be the result of callow youth; anything before the age of 30 may be due to lack of maturity and inexperience.
  3. Was it a single incident, or many? One instance of bad conduct can be a mistake; repeated instances are a pattern.
  4. Was the bad conduct criminal, cruel, or especially callous?
  5. Was it something most people might do at some point in their lives, as opposed to something so unusual that would shock the average person?
  6. Is the individual genuinely remorseful, acknowledging the misconduct and expressing sincere regret that it occurred?
  7. Is the person open and candid about the event, admitting it freely without being forced to do so? Being open and candid is itself strong evidence that the individual disapproves of and rejects his own past conduct.
  8. Is there evidence or a reasonable presumption that the individual has adopted new values, habits, standards of conduct, experience and maturity in the intervening years?
  9. Is the conduct so directly in conflict with the individual’s responsibilities that it creates reasonable distrust and disqualifies him or her from being trusted to stay in a position of power, management or influence?

By these measurements, Shirley Sherrod was unfairly treated.  Other cases, however, are not so clear.

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