Now THIS Is Ethics Zugzwang! The Unfixable Catch-22 Of Sexual Harassment Law

A recent question to the New York Times workplace column “The Workologist” perfectly illustrates a permanent flaw in sexual harassment law. Believe it or not, I have no recommendation regarding how to fix it. I don’t think it can be fixed.

Here was the question:

I work at a blue-collar job, and I am one of four women in a crew of 40. The guys never touch or harass me, or any of the women, as far as I know.They do, however, constantly hug and grab and bump each other in a friendly way. It’s not unusual for one of the guys to go through a whole short meeting (a stand-up “huddle”) with an arm around another guy’s shoulder. No one ever touches me, and it’s not that I want them to. That would be weird. But I almost feel left out. Should I let this “bro contact” bother me?

I love it. Perfect. This is what using the law to dictate ethics can result in, and does result in frequently: hypocrisy, confusion, and a double-bind.

Let’s begin with the last sentence: “Should I let this “bro contact” bother me?” The whole point of “hostile work environment” sexual harassment law is to make sure no woman has to ask this question. A boss who responds to a female employee’s complaint of a hostile work environment-creating unwanted sexual attention in the office with “Don’t let it bother you!” has breached his or her duty under the law.

So what’s going on here? The men in the company have adopted the current fad (Yechhh.) of hugging each other to express a range of things—support, congratulation, sympathy, platonic affection—and quite properly do not hug the few women in their midst, lest one of the females, reasonably or not (or perhaps intentionally, to grab some power or cash) be made “uncomfortable,” take the physical contact as unwanted and sexual in intent, complain, and perhaps sue. By not hugging them, however, the men isolate the women, exclude them from the social fabric of the “team,” and, in essence, discriminate against them by signalling that they are “the other,” thus creating a hostile work environment.

Even if some of the women announced their consent to be treated as “one of the guys,” it would not solve the dilemma. One of those bro-hugs could still turn into a copped feel, or be perceived as crossing lines by the female huggee. Then there is the looming  third party harassment problem: a woman who has not consented to being hugged might see her female colleagues being man-handled (but completely innocently, of course) and assume that consenting to unwanted physical contact was a condition of employment, or that they would be adversely affected if they did not agree to participate enthusiastically in the hug-fest. Not treating the women in the company like the men is discrimination; treating them the same is an open invitation to a sexual harassment lawsuit. Continue reading

Review: Ethics Alarms Concepts And Special Terms

Recently updating the Ethics Alarms list of concepts and frequently used terms reminded me that I had been meaning to post them for review and assistance to those relatively new here. Of course, the link has always been right there at the top of the home page, but I have this sneaking suspicion that it isn’t visited very often.  Here, then, is the up-to-date list.

CONCEPTS

Non-Ethical Considerations: Defined above, non-ethical considerations are important because they are often the powerful impediments to ethical conduct, and the cause of many conflicts of interest. Non-ethical considerations are many and diverse, and include:

  • The need and desire for shelter, health, wealth, fame, security, self-esteem, reputation, power, professional advancement, comfort, love, sex, praise, credit, appreciation, affection, or satisfaction
  • The desire for the health, comfort, safety, welfare and happiness for one’s family, loved ones, friends, colleagues, an co-workers
  • The pursuit of vengeance or retribution
  • Hunger, lust, pain, ambition, prejudice, bias, hatred, laziness, fatigue, disgust, anger, fear
  • …and many more

Ethical Dilemma: This is an ethical problem in which the ethical choice involves ignoring a powerful non-ethical consideration. Do the right thing, but lose your job, a friend, a lover, or an opportunity for advancement. A non-ethical consideration can be powerful and important enough to justify choosing it over the strict ethical action.

Ethical Conflict: When two ethical principles demand opposite results in the same situation, this is an ethical conflict. Solving ethical conflicts may require establishing a hierarchy or priority of ethical principles, or examining the situation through another ethical system.

Ethical Gray Area: Gray areas are situations and problems that don’t fit neatly into any existing mode of ethical analysis. In some cases, there may even be a dispute regarding whether ethics is involved.

Reciprocity: The ethical system embodied by The Golden Rule, and given slightly different form in other religions and philosophies. It is a straight-forward way of judging conduct affecting others by putting oneself in the position of those affected. Reciprocity should always be available in any ethical analysis, but it is frequently too simple to be helpful in complex ethical situations with multiple competing interests.

Absolutism: Absolutist systems do not permit any exception to certain ethical principles. The champion of all absolutists, philosopher Immanuel Kant, declared that the ethical act was one that the actor was willing to have stand as a universal principle.

One principle of absolutism is that human beings can never be harmed for any objective, no matter how otherwise worthwhile. Absolutism has the advantage of making tough ethical calls seem easy, and the disadvantage of making debate impossible. One sees absolutism reflected today in the controversies over war, torture, abortion, cloning, and capital punishment.

Utilitarianism: Utilitarianism accepts the existence of ethical conflicts and the legitimacy of some ethical dilemmas, and proposes ethical analysis based on the question, “Which act will result in the greatest good for the greatest number of people?’ It entails the balancing of greater and lesser goods, and is useful for unraveling complex ethical problems. Its drawback, or trap, is that utilitarianism can slide into “The ends justify the means” without some application of absolutist and reciprocity principles.

Consequentialism: In formal ethics, utilitarian schools of philosophy are sometimes lumped together as “consequentialism,” in that the ethical decision-making is based on seeking the best result. Here we just uses the above term, utilitarianism.  Consequentialsm, in contrast, is the flawed belief that the rightness or wrongness, or even wisdom, of chosen conduct is measures by its actual results rather than its intended results. If “if all worked out for the best,” in other words, the conduct that created the desirable result most have been ethical, whatever its intent or however the conduct was determined to be necessary or desirable. This is a fallacy.

Cognitive Dissonance:
Cognitive dissonance is a psychological phenomenon first identified by Leon Festinger. It occurs when there is a discrepancy between what a person believes, knows and values, and persuasive information that calls these into question. The discrepancy causes psychological discomfort, and the mind adjusts to reduce the discrepancy. In ethics, cognitive dissonance is important in its ability to alter values, such as when an admired celebrity embraces behavior that his or her admirers deplore. Their dissonance will often result in changing their attitudes toward the behavior. Dissonance also leads to rationalizations of unethical conduct, as when the appeal and potential benefits of a large amount of money makes unethical actions to acquire it seem less objectionable than if they were applied to smaller amounts.

Moral Luck: The common situation where an unethical act is only discovered, noticed, or deemed worthy of condemnation due to unpredictable occurrences that come as a result of the act or that affect its consequences. Moral luck is the difference, for example, between two mildly intoxicated drivers, one of whom arrives home without incident, while the other has an unwary child dash in front of his automobile, leading to a fatal accident that he couldn’t have avoided if completely sober. Yet the unlucky driver will be a pariah in the community, while the more fortunate driver goes on with his life.

SPECIAL TERMS USED ON ETHICS ALARMS

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The Tamir Rice Fiasco And “Ethics Zugzwang”

Gun comparison

There are circumstances in which all ethical options have been eliminated by poor choices and bad luck. Henceforth Ethics Alarms will refer to this dilemma as ethics zugzwang, zugzwang being a chess term for the situation where a player must make a move, and any move will worsen his position.

By the time the killing of Tamir Rice got to the grand jury, it was ethics zugzwang. The grand jury’s decision not to charge the two officers involved is troubling, and a decision to charge would have also been troubling. To get anything out of this utter and fatal fiasco, a lot has to change, and we have to recognize what in order to make those changes occur. It won’t be easy. I think it may be impossible.

There is no way that the justice system can do its job objectively and well when every police shooting involving a black victim is instantly labelled racist and murder by vocal activists, pundits and and social media, with the implied threat of civil unrest. If an indictment is handed down as in theFreddie Gray matter in Baltimore, it appears as if mob passions are manipulating the system, and, in the Gray case, it was. Such a result, in turn, makes it more difficult for the next accused cop to get justice. It estranges the police force from the government entity it serves, and makes police wary and less likely to assume the risks associated with their vital and inherently dangerous  job.

These considerations create their own impetus making a failure to indict more likely. A city cannot afford to be seen as not supporting the police, even when they make a deadly mistake in judgment. District attorneys are on the same team as police, and automatically share their perspective; it is important that the police recognize that. The police receive the benefit of every doubt, and the deserve that. Yet a failure to indict, especially now that police shootings have become high profile matters that every blogger and pundit prejudges according to their own biases and agendas, will inevitably be used to indict the system instead. Continue reading