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New Jersey Employment and Civil Rights Attorney Discusses Whistle Blower's Studies

JOURNEY TO JUSTICE

September 15, 2013

"New Jersey Employment and Civil Rights Attorney Discusses Whistle Blower's Studies."

"Or . . . It's Hard to do the Right Thing."

There's been a good deal of talk about whistle-blowing lately, given the Snowden coverage. Edward J. Snowden thinks of himself as a whistle blower. Whether you agree or don't, and whether you like what he did or you don't, the discussion is a good one to have nowadays.

The Concept of whistle blowing is pretty simple. You're in a position to reveal, or at least oppose or threaten to reveal, conduct that you think is "wrong." Maybe you think of it as fraudulent, illegal, or just "not right," or "not kosher." You're not a lawyer, though you may be a highly educated professional or well trained employee with long experience and great wisdom in life. Despite that, you don't know the law.

What are you to do? It's not easy. On the one hand, you've probably been raised correctly; thus whatever your personal philosophy, your religious beliefs or what Mom or Dad would expect of you which suggests that you "do the right thing," you've got a family to support and a job to keep in a rough economy. Is it really "my business" that the company is doing something wrong? Shouldn't I "get along to go along," do what they want me to do, and keep my mouth shut?

Like I said, it's not easy. Some recent studies on this subject are illuminating. In one study, 74 research participants were asked to write a paragraph about an occasion when they witnessed unethical behavior and reported it, along with why. Another group of 61 participants was asked to write about an occasion when they witnessed unethical behavior and kept their mouths shut. In this study, the whistle blowers used ten times as many terms related to "fairness and justice" in describing their situation, whereas non-whistle blowers used twice as many terms related to "loyalty."

Interesting, isn't it?

It makes sense that whistle blowing brings into contrast two moral values: fairness and loyalty. These are in conflict, at least in the context of whistle blowing. Doing what is "fair" or "just" often conflicts with showing "loyalty." One of the examples that a New York Times article recently cited in discussing this study was the tension between promoting an employee based on talent alone versus promoting a long standing but unskilled employee who has done a good job for the company. Neither of these choices are necessarily "right" or "wrong," but they definitely implicate "fairness" and "loyalty."

Despite the fact that these two words constitute basic moral values, some people prioritize one over the other. Studies show that American "Liberals" or "Progressives" tend to focus more on "fairness," while American "Conservatives" (really, Neo-Conservatives) tend to focus more on "loyalty," which may help explain differing responses to Mr. Snowden. To some, he was defending the rights of all Americans; to others, he was a traitor to his country.

I think for most thinking people, the decision as to how they see Snowden isn't, or at least shouldn't be, an easy one. If you make your decisions independent of what progressive or conservative pundits have to say, and if you're not led by the nose in terms of "talking points" from talk radio, you're struggling to find your own peace with what Mr. Snowden did, even if it is not of great immediate importance in your day-to-day life. You've thought about it, because we all do. How do we feel about what Mr. Snowden did?

The fact that you're probably a good person and have a moral conscience means that you are struggling with this, because it's not an easy thing for a human being to reconcile. "Blind" "loyalty" is not good any more than a "blind" sense of "absolute fairness or justice." It is often said of the law "that justice is blind," but can that really be the case? Is it really the same, morally, to see a starving 11-year old who steals a piece of candy in the same light as Bernie Madoff, who stole billions? Both of them "stole" something that did not belong to them. But is there really moral equivalency?

I remember long ago watching a favorite Star Trek "The Next Generation" episode where the officers of the U.S.S. Enterprise landed on a planet that seemed to be ideal and peaceful, having reach the state of "utopia." One of the ways in which the civilization managed this was to take all of the "judgment" and "subjectivity" out of their code of criminal justice. Their solution to the problem of varying degrees of punishment and recidivism (the tendency to repeat criminal conduct even after one has been "punished" or "rehabilitated") was to make all crimes equivalent and all punishments "final." By "final," I mean, "death." This was the punishment for all crimes.

That means that in that civilization, and on that planet, as was the case for one of the young officers, walking on the gross and trampling the plant accidently was the same thing as committing mass murder. Both crimes were equivalent and both crimes required punishment by death. Because anyone who committed a crime would therefore suffer the death penalty, no one committed any crime (the difficult concept of mental illness and how to define "negligence" from "crime" wasn't discussed in the 42 minute teleplay, but you get the idea). The drama in the episode invokes the Madoff v. starving child example. A young officer walked on the grass (there was a "keep off the grass" sign). His sentence was death. The moral equivalency argument went head to head with the "subjectivity" argument in much the same was as loyalty goes up against fairness.

The "variation" in moral values begs the question of whether or not such can predict whether someone will decide to "blow the whistle" given a particular situation. In another study quoted by the same New York Times article, 83 research participants were given a questionnaire in which some questions probed their concern for fairness, while others probed their concerns for loyalty. The "fairness score" and the "loyalty score" for each participant was calculated. Questions were also asked about how likely each participant would be to report a stranger, an acquaintance, a friend and a family member for crimes of varying severity from petty theft to murder.

Probably not surprisingly, given that these questions are morally complex and that humans tend to be morally complex when given an opportunity to think, neither "fairness" or "loyalty" alone predicted whistle blowing. The way people traded one value against another, the difference between people's fairness and loyalty scores, was really the more accurate predictor of when someone would engage in whistle-blowing, rather than one score or the other. People who valued "fairness" more than "loyalty," predictably, expressed greater willingness to "blow the whistle," whereas people who valued "loyalty" more than fairness were more hesitant.

To test whether such whistle blowing decisions were susceptible to manipulation, the same study asked 293 participants across two experiments about their willingness to "blow the whistle," but first these people were asked to write short essays on the importance of fairness or the importance of loyalty. The "whistle blowing scores" between these two groups were then compared. Again, not surprisingly, the participants who wrote about "fairness" were more willing to blow the whistle than those who wrote about "loyalty."

In the final study done by the same research group, the question of this "writing exercise" was examined to see whether or not it could used to influence people's behavior in a non-hypothetical situation. For the "real world" test, the study focused on Amazon's Mechanical Turk, an online market place where users ("requesters") post tasks like proofreading and evaluating advertisements to be completed by other users ("workers") in exchange for money. Reputation is paramount on Mechanical Turk, and users can publically evaluate and even black list one another.

In the study, involving 142 users of Mechanical Turk, the participants were asked to write a short essay about the importance of "fairness" or "loyalty." Then the conductors of the study made sure that all participants at some point during the study witnessed the substandard work of a fellow Mechanical Turk user. At the end of the study, the participants were surprised with the creation of a whistle blowing quandary. The participants were asked whether or not the user who's shoddy work they had witnessed had violated any rules and whether that user should be blocked from the opportunity to do future tasks. When the study organizers compared the responses from the two groups, it was found that those who had written about the importance of fairness were significantly more willing to report a fellow worker than those who had written about loyalty. Even a "nudge" could affect whistle blowing behavior.

Obviously, the study was an artificial one to bring out a "natural" point. Our culture was supposedly founded on the idea of fairness, truth and justice. Superman, an American Hero, includes "truth and justice" as part of "the American Way," a statement which still pulls at the heart even though we all know it to be, to a great degree, naïve. American foreign policy is rarely moral or just, and is as concerned with "realpolitik" and exclusively American (selfish) interests as are the foreign policies of every other country on the planet. When people do "the right thing," they often rationalize - sometimes to a breaking point - doing what they know is probably more "wrong" than "right," but they do the wrong thing anyway.

Yet we respect whistle blowers when we think that they've done the just or fair thing and we consider them contemptible and condemnable when they're disloyal.

I suppose these traits must always be considered in conflict with one another as at least the subject of whistle blowing is concerned, but it's a tough discussion.

New Jersey maintains a Conscientious Employee Protection Act, or CEPA, a Whistle-Blowing Statute that protects individuals who oppose, disclose, or threaten to disclose illegal, fraudulent, or other conduct which violates public policy. We also have a common law "doctrine" that accomplishes largely the same thing. Other states have similar laws and the Federal Government maintains the Sarbanes-Oxley Law for whistle blowers in certain contexts. Clearly, we want to encourage and protect whistle blowers, but at the same time, it is a fine line between "whistle blower" and "traitor."

Something to think about.

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