Teaching Engineering Ethics: A Case Study
Approach Michael S. Pritchard
The Engineering Accreditation
Commission of the Accreditation Board for Engineering and Technology (EAC/ABET)
now requires accredited engineering
programs in the
As many professional
engineers can testify, ethical lessons are often learned only after something
has been overlooked or has gone wrong.
There is no wholly adequate substitute for actual engineering
experience. However, having students
reflect on realistic case studies
can provide some helpful preparation for dealing with ethical issues they are
likely to face once they do enter engineering practice.
By requiring engineering
programs to introduce students to ethical concerns, EAC/ABET is taking the
position that students need to begin to think about ethical issues before
things may go wrong. In essence,
EAC/ABET is advocating a kind of preventive ethics and preventive ethics tries
to anticipate possible consequences of actions in such a way that more serious
problems are avoided later.
A Calvin and Hobbes comic
strip nicely illustrates the importance of thinking ahead. As they are cascading down a
treacherous hill in Calvin's wagon they discuss their
circumstance:
Calvin: Ever notice how
decisions make chain reactions?
Hobbes: How so?
Calvin: Well, each decision
we make determines the range of choices we'll face next. Take this fork in the road for instance. Which way should we go? Arbitrarily I choose left. Now, as a direct result of that decision,
we're faced with another choice: Should
we jump this ledge or ride along the side of it? If we hadn't turned left at the fork, this
new choice would never have come up.
Hobbes: I note with some dismay, you've chosen to
jump the ledge.
Calvin: Right. And that decision will give us new choices.
Hobbes: Like, should we bail out or die in the
landing?
Calvin: Exactly. Our first decision created a chain reaction
of decisions. Let's jump.
After crashlanding
in a shallow pond, Calvin philosophizes:
"See? If you don't make each decision carefully, you never know
where you'll end up. That's an important
lesson we should learn sometime."
Hobbes replies, "I wish we could talk about these things without
the visual aids." Hobbes might
prefer that they talk through a case study or two before venturing with Calvin
into engineering practice.
The classroom can provide
engineering students with opportunities to absorb Calvin's lesson "without
the visual aids." What should a classroom concerned with preventive ethics
aim to accomplish? After a two year
study of ethics programs in higher education sponsored by the
1. stimulate
students' ethical imagination;
2. help students
recognize ethical issues;
3. foster the
development of analytical skills in ethics;
4. promote a sense
of responsibility;
5. and help students
deal effectively with ambiguity and disagreement about ethical matters.
There is not just one way in
which these goals might be met. One approach is the use of case studies. This is the concern of our project. We have developed case studies that can be
used either as a supplement to, or as an alternative to the more standard
textbook approach. Without assuming the
superiority of a case study approach over a standard textbook approach, the
merits of a case study approach will now be discussed.
The use of case studies has a distinguished history in
law and business schools, and it has been very successful in the more recent
emergence of medical ethics as an area of study. One of the major reasons the use of case
studies is so successful is that ethical inquiry begins with problems that
professionals can expect to have to face.
This is in contrast to beginning at a highly theoretical level and only
later considering how rather general principles and rules might apply to actual
situations. By beginning with realistic
cases, students can immediately appreciate the relevance and importance of
giving serious thought to ethics.
Careful reflection on the cases will itself suggest the need for moving
to a more theoretical level (for example, from what is fair in this situation
to what fairness is). At the same time,
by keeping a steady eye on the practical context within which professionals
work, theoretical reflection is undertaken with practical purpose in mind.
Before proceeding further
into the topic of ethics in engineering, it is wise to pause for a moment to
talk about ethics generally. , as a
subject of study, has traditionally been conceived as a part of Philosophy,
which also studies Logic,
Epistemology,
Metaphysics, Aesthetics, and the like. Ethics is also studied in
Religion. Philosophy and Religion are daunting subjects for many people. Thus, there is a temptation for Engineering
faculty and students to think that, if they have not studied Philosophy or
Religion before, they are not ready to think and talk about ethics in
engineering. In fact, a young engineer
interviewed in our project commented: "I don't know much about ethics. I
didn't have any in college. All I know
is that I do what I'm told."
This comment suggests two
basic confusions. First, it expresses
the idea that simply doing what one is told is a workable . It is not--either ethically or
practically. For example, if an engineer
is told by a supervisor to submit fraudulent data, is not only ethically
questionable, it might well work to the disadvantage of all parties involved if
the fraud is discovered by others.
Furthermore, even if one does not act contrary to what one is told, what
one is told to do seldom has enough specificity to eliminate the need for
individual discernment and discretion.
Second, the young engineer's
statement suggests that, without some explicit focus on Ethics in the college
classroom, one
does not know much about ethics. This is like saying that, without explicitly
studying Logic, one does not know much about logic. But students who take classes in Logic do not
enter the classroom with "blank tablets." They have been developing
and exercising their logical abilities all of their lives. A course in Logic helps students refine and
further develop these abilities by encouraging them to self-consciously
articulate what they already know and subject it to critical analysis and
application. Thus, they develop a more
systematic, critical understanding of what is already quite familiar to them;
and they build on this. The same is true
of students who take classes in Ethics.
The 18th century Scottish
philosopher Thomas Reid wisely insisted that morality is everyone's business,
"and therefore the knowledge of it ought to be within the reach of
all." He also denies that "in
order to understand his duty a man must needs be a
philosopher and a metaphysician."
Some philosophical reflection may be necessary, but this is not the
exclusive preserve of philosophers.
Philosophical reflection, too, is everyone's business. Reid acknowledges that moral systems
"swell to great magnitude."
But this is not because there is a large number of
general moral principles. Actually, he says, they are "few and
simple." Moral systems are complex because applications of moral
principles "extend to every part of human conduct, in every condition,
every relation, and every transaction of life."
A glance at the National
Society for Professional Engineers' (NSPE) Code of Ethics lends some support to
Reid's analysis. Although the code
applies to a broad range of professional conduct, the number of underlying,
organizing principles is relatively few.
It emphasizes protection of the health, safety, and welfare of the
public; competence; objectivity; truthfulness; and serving as faithful agents
of their employers and clients. There
is nothing surprising in this list (although the emphasis on protection of the
public is a fairly recent addition).
However, as the full body of the code reveals, the special functions of
engineers in their professional life require elaborations of these basic principles
in the context of engineering practice.
Furthermore, it is clear that even these further elaborations are no
substitute for individual judgment or decision.
The NSPE code is not like a recipe in a cookbook. At best, it provides a basic framework, with
general guidelines, for engineers to bear in mind when engaged in their
work; and it is not self-interpreting.
This is why NSPE's Board of Ethical Review (BER) periodically presents
cases with commentary on how the code might be used to deal with them. This is an invaluable service to the
engineering profession, providing paradigm examples of acceptable and
unacceptable conduct according to the code.
The code, in turn, expresses and confirms the shared ethical beliefs and
commitments of members of NSPE. Thus,
the BER serves the important function of further articulating for engineers,
their employers and clients, and the public the basic ethical standards
engineers should be expected to observe.
In striking contrast to the
kinds of cases discussed by the BER are those typically presented in the media. What examples come
to mind? There is a familiar list: Bhophal,
Engineering societies, of
course, are fully aware of this. The
codes of ethics do address more everyday concerns. And a noteworthy feature of the BER case
studies is that, although they are based on actual situations, few are
newsworthy enough to attract the attention of the media. Their importance for most engineers and
engineering students lies precisely in their ordinariness. These are problems that any engineer might
have to deal with. Thus, they would seem
to come closer to meeting EAC/ABET concerns than the less frequent, more
spectacular incidents portrayed by the media.
The BER discussions are very useful in helping engineers and students
see how NSPE's Code of Ethics should be interpreted
in a variety of situations
But an exclusive focus on cases has several shortcomings.
First, since the case studies
are designed to aid understanding of the NSPE Code of Ethics, they are
essentially code driven. Analyses by the BER are quasi-legalistic in tone,
mirroring the specific provisions of the code.
There is little analytical discussion of the underlying ethical
principles or concepts
But codes themselves need to be evaluated. They may include some provisions that
themselves are ethically problematic. A
history of engineering codes reveals important changes over the years--ranging
from striking provisions on certain forms of advertising services to adding
provisions about fundamental obligations to protect public health and
safety. Also, there may be other areas
of ethical concern that are either not addressed by the code at all, or only
vaguely.
Second, BER commentaries
almost always are consensus reports.
There are very few minority dissenting opinions. Of course, it is important that students be
aware of the extent to which consensus (and shared commitment) on ethical
issues in engineering exists. However,
more complex ethical issues do not necessarily command consensus, and students
need to see examples of reasoned disagreement as well as agreement.
Third, it is frequently
complained that engineering codes of ethics, including NSPE's,
tend to view the engineer as an independent consultant, rather than as a
corporate employee who is expected to fit within a complex organizational setting.
Engineers in a large corporate context typically lack the degree of autonomy
that independent, consulting engineers have. They lack this both because they
may not be primary decision makers themselves and because they may work in
relatively isolated units that provide them with little access to the wider
implications of their work. Furthermore,
the expectations of engineering codes of ethics and those of managers of the
units within which engineers work may not always match. These differences can result in serious
ethical concerns that are not clearly addressed in engineering codes. For example, a fundamental canon of the NSPE
code is that engineers shall "hold paramount the safety, health, and
welfare of the public in the performance of their professional
duties." Another fundamental canon
is that engineers shall "act in professional matters for each employer or
client as faithful agents or trustees."
The code is not specific about how to handle the conflicts that may
arise between these two canons. Whistleblowing is a major area of ethical concern among
engineers. Yet, the code offers no
real guidance on this matter. It may be
that codification of such matters is either unattainable or undesirable. Still,
it is important for students to reflect on circumstances in which whistleblowing may be at issue.
Fourth, BER cases are
somewhat limited in scope. Most of the published opinions deal with issues such
as advertising professional services, engineering fees, conflicts of interest,
and governmental employment. Relatively
few deal with such concerns as negligence or incompetence.
Finally, BER cases seldom
require a consideration of the likely implications of initial decisions for
subsequent decision making. However, as
the Calvin and Hobbes comic strip mentioned above suggests, decisions that seem
to resolve matters for the moment do have consequences that often set the stage
for even greater ethical problems later.
One of the managers interviewed in Barbara Toffler's
Tough Choices wisely explains how he approaches difficult situations:
I first play out the scenario
of what would happen if I did it one way and what would happen if I did it the
other way. What would be the followup? What would
be the next move? What would be the
response back and what would be the consequences? That's the only way you can tell if you're
going to make the right move or not because I think something that instinctively
may feel right or wrong, if you analyze it, may not pan out that way.
This procedure can be built
into case studies by presenting them in several phases. For example, the first phase of the case
could describe a situation in which an engineer is tempted (or even urged by a
superior) to cut corners in a design.
The next phase could describe what choices the engineer is facing once
he or she has decided (to cut corners, on the one hand, or not cut corners, on
the other hand). Choices at that level,
too, will have consequences. So a third phase, built from decisions made in the
earlier two, can be introduced, and so on.
Having to pass through several phases is a useful reminder that what we
decide now may come back to help (or haunt) us later.
There are other useful ways
of presenting cases in phases. For
example, instead of having each subsequent phase represent a later moment in
time, each phase could represent a different, but contemporaneous, perspective
on the situation. It is a common feature
of human experience that we tend to interpret situations from very limited perspectives
and that it takes some effort to take a more objective look. This is what psychologists call
egocentricity. Especially prevalent in
young children, egocentricity never completely leaves us.
Here is an example of a case designed to help us
overcome our egocentric tendencies.
You have been assigned the
position of Environmental Engineer for one of several local plants whose water
discharges flow into a lake in a flourishing tourist area. Although all the plants are marginally
profitable, they compete for the same customers. Included in your
responsibilities is the monitoring of water and air discharges at your plant
and the periodic preparation of reports to be submitted to the Department of
Natural Resources. You have just
prepared a report that indicates that the level of pollution in the plant's
water discharges slightly exceeds the legal limitations. Your boss, the Plant Manager, says you should
regard the excess as a mere "technicality," and he asks you to
"adjust" the data so that the plant appears to be in compliance. He says that the slight excess is not going
to endanger human or fish life any more than if the plant were in
compliance. On the other hand, he says,
solving the problem would require a very heavy investment in new
equipment. He explains, "We can't
afford new equipment. It might even cost a few jobs. It will set us behind our
competitors. Besides the bad publicity
we'd get, it might scare off some of the tourist industry, making it worse for
everybody."
How do you think you should
respond to your boss's request? Explain.
This same situation can also
be viewed from several other perspectives: that of the plant manager;
environmental engineers from the competing companies; plant managers from the
competing companies; the Department of Natural Resources; local merchants; parents
of children who may swim in the lake; tourists, and so on. When we are required
to consider these other perspectives, we may see the problem take on strikingly
different dimensions. Students can be asked to go through several of these
perspectives sequentially and then be asked to make an "all things
considered" assessment of what should be done. Or they can be divided into
groups, with each group being given a different perspective to consider--after
which the groups compare reflections and try to come up with an "all
things considered" assessment.
Another way to present a case
in phases is to follow an initial scenario with background information that is
easy to overlook, but which might alter one's first response to the situation.
For example:
Jack Strong is seated between
Tom Evans and Judy Hanson at a dinner meeting of a local industrial engineering
society. Jack and Judy have an extended discussion of a variety of concerns,
some of which are related to their common engineering interests. At the conclusion of the dinner, Jack turns
to Tom, smiles and says, "I'm sorry not to have talked with you more
tonight, but she's better looking than you."
How might this scenario lead
to a discussion of ethics? Some male students might comment, "I don't see
anything wrong with a little flirting. It's happens all the time, and it makes
life more interesting. Besides, this was a dinner--a social event, not a
business meeting." Women students might react quite differently. They need
not be opposed to flirtation in general in order to object to Jack's comment on
this occasion. What, they might ask, is Judy's perspective?
If Judy is a typical female
industrial engineer, she works mainly with male engineers. Let us now imagine that, as a younger
engineer, she is anxious to be recognized first and foremost as a good
engineer. She is well aware of the
stereotypical view that women are not as well suited for engineering as men. She did not often encounter open
manifestations of this attitude while in college. More than twenty percent of her engineering
classmates were women, the faculty were supportive,
the male students did not make her feel she had chosen the wrong profession,
and she graduated near the top of her class.
However, matters quickly
changed on her first job. She found that
she was the only woman engineer in her division. Now, even after a year on the job, it seems
she has to struggle to get others to take her ideas seriously. So, she enjoyed "talking shop" with
Jack at the dinner. But she was stunned
by his remark to Tom, however innocently it may have been intended. Suddenly she saw the conversation in a very
different light. Once again she sensed
that she was not being taken seriously as an engineer.
What ethical questions does
this scenario pose? We could focus on
the appropriateness of Jack's remark, as well as its possible underlying
attitude. However, equally important, we
might ask what response to his remark might be appropriate. Judy is faced with
a difficult situation. If she ignores
the remark, she does nothing to improve her situation--or that of other women
engineers; and she may suffer diminished self-esteem. Still, she may worry that nothing constructive
will come from her making an issue of his remark.
However, Jack and Judy are
not the only ones involved in the situation.
How should Tom respond to Jack's remark?
Does he have any special responsibility to try to discourage behavior
like Jack's? Responding with the
expected chuckle would simply reinforce Jack's behavior. Would a critical response be
appropriate? Would it be more
constructive to take Jack aside later to discuss the matter privately? Should Tom simply ignore the remark?
It might be objected that
this little scenario is being taken too seriously. However, this fictional situation is based on
an actual situation experienced by a female engineer. In fact, this is the first example she
offered when asked about ethical problems female engineers typically face in
their profession. She and other female
engineers interviewed observe that, especially early in their careers, they
sense that their ideas are not taken as seriously as those of male colleagues--that they somehow have to "prove" themselves
worthy of being listened to.
It should be noted that the
main difficulties in thinking through cases like the two just presented have
more to do with seeing that basic ethical considerations are relevant to the
particular circumstances than with one's general understanding of those considerations. Although the second case raises basic
questions about equal opportunity and respect for others (here, women
engineers), at first glance it may not be obvious (especially to men) that this
is so. Only further discussion and
reflection is likely to bring this out.
Similarly, considerations of public health (unpolluted water) and
fairness (among local industries in shouldering responsibility for protecting
public health) are relevant in the environmental engineering case; but this may
be obscured from view until different perspectives are imaginatively brought
into play.
Thus, even if Thomas Reid is
right in saying that basic principles in moral systems are "few and
simple," it does not follow that it is an easy task to make use of them in
practical circumstances. Reid himself
was quite aware of this. As he points out, there are many distractions:
There is...no branch of
Science wherein Men would be more harmonious in their opinions than in Morals
were they free from all biass and Prejudice. But this is hardly the case with any
So, while a well crafted code
of ethics can articulate the basic "Rules of Conduct" for engineers,
this is at best a beginning. Our tendency to be influenced by our passions,
pressures of the moment, popular sentiments, and vested interests distorts our
judgment. Adding to this that fuller understanding of the context within which
judgment is needed and that some cases are genuinely "intricate and
perplexed," it is clear that engineering students face no easy challenge.
With this in mind, let us now
return to the
1. Stimulating the Moral
Imagination
The first teaching objective
identified by the
Consider, for example, the
fictional case of "The Suppressed Data."20
A recent graduate of
Engineering Tech, you have been employed in the R & D Chemical Engineering
Division of Larom, Inc. for the past several
months. You were hired because of the
promising research you did with catalysts as a student at
Engineering
Tech.
A meeting of your division is
called by your supervisor, Alex Smith.
He announces that your unit must make a recommendation within the next
two days on what catalyst should be used by Larom in
processing a major product. The
overwhelming consensus of the engineers in your unit, based on many years of
experience, is that catalyst A is best for the job. But the research you have been conducting at Larom provides preliminary evidence that catalyst B might
be more reliable, more efficient, and considerably less costly. So, you ask if
the recommendation can be delayed another month to see if firmer evidence can
be found.
Alex replies, "We don't
have a month. We have two days." He then asks you to write up the report,
leaving out the
preliminary data you have gathered about catalyst B. He says, "It might be nice to do some
more research on B, but we've already taken too much time on this project. This is one of those times we have to be
decisive--and we have to look decisive and quit beating around the bush. Management is really getting impatient with
us on this one. Besides, we've had a lot
of experience in this area."
You like working for Larom, and you feel fortunate to have landed such a good
job right out of Engineering Tech. You have no desire to challenge your
colleagues. Besides you don't
necessarily disagree with them about which catalyst is best. Still, you wish you had been given more time
to work on catalyst B, and you feel uncomfortable about leaving the preliminary
data out of the report. What should you
do?
1.Write up and sign
the report as instructed.
2.Write up the
report as instructed, but refuse to sign it.
3.Refuse to write up
the report, threatening to go around Alex to the next level of management
if a fully accurate
report is not made.
4.Other.
Engineering students may
respond to cases like this in a variety of ways. A rather large percentage
select the first option, indicating that they really have no choice if
they are to keep their jobs. Some insist
that, since they would only be following orders, they would not really be
responsible if something goes wrong. A
few immediately select the third option, adding that they might make sure they
have another job offer first. What is
surprising is how few select "Other."
Yet, a sensible alternative seems to be to suggest that catalyst A be
recommended, but that the data about B be included. After all, it might be argued, if the data
about B has not engendered serious doubts among the experienced engineers in
the unit, why should they fear that management would counter their
recommendation of A?
For those students who favor
suppressing the data, there is a second scenario, "The Suppressed Data
Strike Back."
You write the report as
instructed, and Larom proceeds with catalyst A. Two months later Charles Trent,
Vice-President for Research at Larom, learns that a
major competitor has just begun using catalyst B in a similar process. Its engineers discovered that B is ideal for
this process. It is more reliable, more
efficient, and much less expensive. Vice-President
Trent is very upset that Alex Smith's unit "missed the boat," and he
personally meets with the entire unit to make his irritation known. He complains, "Larom
has invested a lot of money in this process--only to find out that it's now
falling behind a major competitor. It's going to cost us time and money to
convert the process--and it's probably going to cost us a few customers as
well."
At this point many students
say, "Let's go back to the first situation." The point is not that giving further thought
to the initial situation will yield an obvious and unproblemmatic
solution. (Any option here might have some undesirable consequences.) It is that, through the use of moral
imagination, more satisfactory alternatives may be discovered.
2. Recognizing Ethical Issues
It is not difficult to
recognize that suppressing data raises ethical questions, even if deciding what
to do about it is difficult. However,
the ethical dimensions of situations are not always so apparent. Consider this
illustration.22 At a meeting of engineering educators and professional
philosophers an engineer briefly described a housing project. The property
adjacent to the housing development was a large, heavily treed, hilly area. The
engineer then asked his audience what size drainage pipe should be recommended
for the sewer system. Crude estimates
were made by engineers and philosophers alike, with little consensus and much
amusement. Finally someone asked the
question that no doubt was on the minds of many: What did this problem have to
do with ethics?
The engineer replied by
asking the audience to consider what the surrounding environment might be like
shortly after the completion of the housing project. Perhaps a shopping mall would replace the
heavily treed, higher adjacent area -- resulting in a much greater rain water
run-off problem. Should an engineer recommend a pipe size that takes into
consideration such future contingencies?
What if the housing developer wants to get by with minimal costs and
shows no concern for who might have to bear the expense of replacing the inadequate
draining system in the near future? Who should bear the expense, and to what
extent, if at all, should an engineer be concerned about such questions when
making recommendations? However these
background questions are answered, they make clear that the question of what
should be recommended is not just a technical one. In addition, although an
engineering code of ethics might address issues like this in a very general
way, it will not guide engineers to a consensus. Only extended discussion, if anything, might
result in reflective agreement.
3. Developing Analytical Skills
In one sense engineering
students obviously have well developed analytical skills. However, the technical, analytical skills essential
to good engineering practice must be used with some caution in analyzing moral
issues. Sometimes they may even impede
moral analysis, which requires clear thinking about concepts such as utility,
justice, rights, duties, respect for persons. These concepts are not necessarily amenable
to quantitative analysis.
For example, suppose David
Weber, a highway civil engineer (safety engineer), has to prioritize projects
in a county with diverse traffic patterns.
He considers two intersections that need safety improvements. One is an urban intersection that handles
about 2400 cars per day. The other is a
rural intersection that handles about 600 cars per day. The annual number of fatal accidents at each
intersection is virtually identical (approximately 2), but the number of
property damage and minor injury accidents at the urban intersection is
substantially greater. There is just
enough money left in this year's budget to improve one of the intersections. The result of the improvement at either
intersection will be to cut the number of annual fatalities roughly in half.
There will be a greater reduction in property damage and minor injury accidents
if the improvement is made at the urban intersection. Which improvement should be given greater
priority by David Weber?
Versions of this case been
have presented, complete with numbers, to engineering students for more than
ten years. The overwhelming initial response is always that the urban
intersection should take priority. Why? As the numbers clearly reveal, more people
will be served at the urban intersection. Invariably someone will say,
"It's the greatest good for the greatest number."
If students are asked if
anyone favors the rural intersection, one or two may volunteer that, in fact,
the rural intersection is
more dangerous. Individual
drivers are at higher risk of having a serious or fatal accident. This, too, can readily be demonstrated
mathematically.
So, what do the numbers
settle in this case? By
themselves, nothing. From a
utilitarian point of view, the numbers seem to favor the urban intersection. But the utilitarian premise itself (promote
the greatest good for the greatest number) is not based on numerical
analysis. It requires philosophical
support. Considerations of fairness or
respect for individual rights, on the other hand, strengthen the case for the
rural intersection. Again, while
numerical analysis can be joined with considerations of fairness or individual
rights, those considerations require philosophical support. However the numbers in this case are used, we
need to ask what ethical assumptions we are making about their relevance. The temptation to take comfort in numbers may
be there, but thoroughgoing ethical analysis reveals the assumptions that
underlie giving in to this temptation.
4. Eliciting a Sense of Responsibility
The study of ethics should be
viewed as a serious undertaking rather than a digression from the main business
at hand -- namely, career preparation.
Some teachers may think it is their job to indoctrinate their students
with some moral beliefs (such as those in the NSPE Code of Ethics). This is a mistake. Even if such indoctrination were possible,
engineering students do not need the uncritically held beliefs that would result. What they need is the opportunity to exercise
and refine their critical, moral abilities.
If they are given this opportunity, they will sense that they are being
respected as moral agents and thinkers in their own right. Indoctrination has the opposite effect.
Most students will recognize
indoctrination for what it is and simply go through the motions in order to
satisfy their teachers. Those few who do
not will not be served well either, for they will be ill equipped to deal
imaginatively and sensitively with ethical issues when they are on their
own.
If students are invited to
reflect on realistic, engaging case studies in ways that respect their moral
capabilities, the problem of eliciting a sense of responsibility should take
care of itself. To get students to take the study of ethics seriously, they
must be convinced that they are being taken seriously. Doonesbury's
portrayal of an ethics and law course is instructive:
Law Professor: Let me put it
to you all, then -- what should a knowledge of the law tempered with a sense of
morality produce?
[Class
silence.] Why JUSTICE, of course!
Student: Will that be on the
exam?
Clearly the professor has
some work to do to convince this student that the course is intended to
encourage genuine moral reflection rather than mere recitation.
5. Tolerating Disagreement and Ambiguity
Discussions of problems like
David Weber's are often frustrating to engineering students. Sorting out the nuances of ethical concepts
reveals a certain amount of vagueness, ambiguity, and, above all, disagreement. Lack of consensus on such cases may prove
frustrating for those accustomed to technical solutions to problems. Some may be tempted to turn to a code of
ethics for bringing matters to an authoritative resolution.
However, as already noted,
this is to expect too much from codes of ethics. They cannot be treated as if they were
recipes for action. They are not
self-interpreting. and they are not entirely free from
potential, internal conflict. So, at best, an engineering code of ethics
provides a framework for judgment -- certainly not a substitute for it. In the
case studies that follow, it will be evident from the variety of accompanying
commentaries that reasonable, thoughtful people often disagree to some
extent--and sometimes rather sharply.
We might wish for a geometric
sort of ethics, one grounded in moral absolutes orderly arranged in such a
manner that
judgments about this and that can be confidently deduced from
premises consisting of fundamental axioms combined with the indisputable
"facts of the case." However,
ethics is not amenable to this (nor is engineering, for that matter). It is
better to heed Aristotle's advice not to seek greater (or less) precision that
a given subject permits.
What to Expect in the Ethics Case Studies
There are some thirty ethics case
studies presented on the internet at locations such as
http://ethics.tamu.edu/pritchar/an-intro.htm.
Cases have both a software and hardcopy version. Since many of the cases have multiple stages
and present different alternatives depending on the choices made at each
juncture, the software versions are often easier to follow. It is preferable that readers look at stages
one at a time, reflecting on the questions each stage poses before moving to
the next stage. [This is easier to do with the software versions, since a
comment box must be filled before the next stage is presented.] This can be done alone or with others in a
small group. In commenting on various
aspects of the cases, readers should try to support their conclusions with
reasons; and they should try to indicate what basic ethical considerations seem
most relevant to the situation described.
For example, a basic ethical consideration in the case of "The
Suppressed Data" is that, essentially, you are asked to lie--an
act which, in the absence of some special justification, is generally regarded
as wrong. There is also a question of authority and whether an obligation to
obey orders applies here. Under what circumstances is one justified in
dissenting or refusing to obey? Another basic ethical consideration is
loyalty--but to whom? One's supervisor and fellow engineers?
One's company? Although the case is, strictly
speaking, about one specific set of (fictional) events, reflection on it should
bring up ethical principles, rules, and criteria that are relevant to other
cases as well. So, readers should also be thinking about the extent to which
one might generalize from the specific case in question to other sets of
circumstances engineers may have to confront.
Once the reader has completed
a case, he or she might wish to see how the case has been analyzed by a group
of educators involved in teaching ethics. Each case is accompanied by the
written refletions of several commentators (from
communication, engineering, and philosophy). This should stimulate further
reflection and suggest other resources that can be consulted.
The cases are intended to
reflect ethical problems that arise frequently in engineering under rather
ordinary circumstances. So, "big news/bad news" stories that one
finds in the media are avoided here, although commentators often point out similarities
to the more well known instances. Most of the cases are inspired by extensive
interviews with more than 50 professional engineers. All cases are fictional,
but an effort has been made to make them realistic. A few cases are adaptations
of shorter, fictional scenarios that have appeared in textbooks and journals.
Although all the cases are
fictional, some might wonder if this is really so. Gale Cutler, one of the
commentators and someone who has himself written fictional case studies, has
remarked that someone at a particular company was certain that one of his cases
was based on something that had actually happened there. By substituting known
names for the fictional names in Cutler's case, this person said he was able to
quite accurately reconstruct an actual event. "How," he asked Cutler,
"did you gain access to what went on within our company walls?"
Cutler replied that he had no knowledge of anything that had happened in that
company. How is such a coincidence to be explained? Cutler's answer: "The
sort of thing I described in my case is quite common--it's happened in lots of
places." This is the mark of a good case--it is generic, a good
representation of common occurrences. Thus, cases should be examined with an
eye on what can be learned, not just about the specific situation it describes,
but about cases of this kind. This is the power of a good case--that it empowers us to go on to other situations, perhaps
better prepared to handle the challenges they pose.
So, if the cases that follow
are well chosen, they may seem like coincidences to many. In this sense they will be realistic and
representative. However, in at least two respects they are not. First, readers
may note that a rather disproportionate number of women engineers are involved
in the cases. Although the numbers of women in engineering have been increasing
rapidly in recent years, it is still the case that engineering is a male dominated
profession. The point of including a disproportionate number of women is not to
suggest that somehow they are more likely than men to face ethical problems in
engineering (or anywhere else). Rather, it is to suggest that, with the
exception of those few cases designed to raise special issues facing women
engineers, the question of whether the engineer is male or female (or a member
of any particular racial group) should not be a crucial factor. Perhaps there
will be a day when the proportion of men and women will more closely represent
that in the cases--at which point no one will pay any particular attention to
whether the protagonists are men or women.
A second respect in which
these cases may seem unrepresentative is that, as two commentators have
suggested, managers rather than engineers seem more often to turn out to be the
"heavies." Given that it was mostly engineers rather than managers
who were interviewed, this should not be surprising. It might well be true that
engineers most often see themselves having ethical problems with their managers
rather than with other engineers. It would have been interesting to see how
managers view the engineers they supervise!
However, there is a further
factor that should go some way toward defusing the criticism. When asked about
situations in engineering that have an ethical dimension, most engineers we
interviewed brought up examples of ethical conflict. This is in line with the
media's focus on wrong-doing. Understandably, then, many examples involved
conflicts between engineers and management. However, it does not follow from
this that these engineers think that, in general, managers invite or permit
unethical behavior. The engineers seemed to concentrate on those occasions when
they were troubled ethically. Actually, many engineers initially had difficulty
thinking of such examples. This suggests that they feel that, in general,
responsible behavior is the norm.
Unfortunately, even at the
everyday level of ethics, we tend to dwell on "bad news"
stories. What is still needed is a
variety of detailed depictions of the more ordinary, ethically responsible
engineering practices, along with accounts of how responsible management
contributes to this. After all, if we
can understand what irresponsibility involves, this is only because we have
some notion of responsibility as well.
It is hoped that reflection on the case studies that follow will encourage
readers to think of responsible alternatives rather than simply to dwell on the
negative.
______________________________________________________________________
Ethics Case
Trees along county roads
Kevin Clearing (a civil
engineer) is the engineering manager for the Verdant County Road Commission
(VCRC). VCRC has primary responsibility
for maintaining the safety of county roads.
For each of the past 7 years
at least one person has suffered a fatal automobile accident by crashing into
trees closely aligned along a 3 mile stretch of
Other members of VCRC have
been pressing engineer Kevin Clearing to come up with a solution to the traffic
problem on
Discuss how civil engineer Kevin Clearing should
proceed at this point.
Commentaries
A. Kenneth L.
Carper
Several interesting ethical
considerations are raised in this transportation engineering dilemma. The most prominent issue is the conflict
between local interests and the interests of the public at large. Other topics that will be discussed in this
commentary are: the potential value of effective organized public opposition,
the role of the civil engineer in a governmental planning agency, and the
emerging field of environmental ethics.
Transportation planners know
that highways generate a great deal of local controversy, perhaps more than any
other public works projects, with the exception of airports and nuclear power
plants.
"Roads are immensely
popular with all those who do not live near them."
A local citizens'
environmental group opposes widening
Moral theory can be employed
to support either side in this conflict.
Finding a solution entirely acceptable to both sides may not be
possible, but the next step ought to be a series of public hearings in which
all considerations are fully reviewed.
Objections, aired in
appropriate public forums, can be of great value in arriving at the best
planning solutions. Enlightened engineer planners will not only welcome
objections, but will assist in making the objections effective. Considering
opposing points of view nearly always improves the quality of reasoned
judgment. This process implies open
communication and free access to relevant information by all parties.
Communication with the public
is a difficult problem for the planner or engineer in itself,
but the most important questions are:
a. How does a engineer planner handle a situation where his client's
values are far from his own?
b. How is the engineer
planner to comport himself when engaged on a project which may be nationally
(or regionally) highly beneficial but adversely affects a particular locality?
c. How is the engineer
planner to form and express his judgment in matters involving the aggregation
of preferences.
In the public forum, engineer
planning experts should go beyond a presentation of their recommendations. They should be willing to fully discuss all
factors considered in reaching their conclusions, and should actively listen to
informed criticism. During the
discussions the engineer planner should honestly express uncertainties in
planning assumptions. The opposition
will likely raise valid arguments, beyond those already presented. In this
case, for example, engineer Kevin Clearing will be asked to acknowledge that
improved roads generate increased traffic, and he should be willing to honestly
respond to this fact. Public hearings
have little positive benefit when the opposition parties feel they have not
been honestly received.
This raises the topic of the role of the professional
engineer in a governmental agency. Governmental bodies are generally more
concerned with those issues that affect large segments of the population, and
tend to be less concerned with local interests that affect few citizens. The ethical engineer planner will maintain
sufficient independence to ensure that local interests are carefully
considered. Grave injustices may
otherwise be imposed on individuals for the benefit of the majority.
The subject of environmental
ethics is also relevant to this case.
Most planning engineers are aware that their decisions are environmental
experiments as well as social experiments.
Their role is as the agents of change.
Often the environmental effects of planning decisions are irreversible.
Environmental ethics is a relatively new field of applied ethics, at least in Western
philosophy. Western philosophers have
traditionally held that humans alone have intrinsic value, and that the natural
environment exists for the benefit of humankind. Environmental ethics questions whether
morality is purely anthropocentric (human centered). The environmental ethic
suggests that trees (or spotted owls) may also have intrinsic value.
It should be noted that many
environmentalists place the interests of humans far above that of objects in
the natural environment and the interests of animals. Conservation of the natural environment and its
resources can be justified on the basis of concern for future generations of
humans who will have intrinsic value.
This form of environmentalism is anthropocentric. Environmental conservationists do not
necessarily ascribe intrinsic value to the natural environment.
It is not clear from
environmental group spokesperson Tom Richard's statement whether he bases his
value for the threatened trees on a belief in their intrinsic value, or whether
he wants to preserve natural beauty for future generations. A careful reading of his statement suggests
the latter. However, it is likely that
at least a few members of the opposition group will subscribe to the concepts
of the new environmental moral theory. Engineer Kevin Clearing should be
prepared to consider this viewpoint in the deliberations, which are sure to be
lively and spirited.
Suggested
1. Goldstein, Alfred 1987.
"The Expert and the Public: Local Values and National Choice,"
Business and Professional Ethics Journal, Rensselaer Polytechnic Institute,
Troy, NY, Vol. 6, No. 2, pp. 2550.
2. Lucas, J. R. 1987.
"The Worm and the Juggernaut: Justice and the Public Interest,"
Business and Professional Ethics Journal, Rensselaer Polytechnic Institute,
Troy, NY, Vol. 6, No. 2, pp. 5165.
3. Martin, Mike W. and R. Schinzinger 1989. Ethics in Engineering (2nd ed), McGrawHill, Inc.,
B. Gale Cutler
Kevin Clearing, as an
engineering manager, is confronted with a situation that is typical of many
situations in which engineering managers find themselves. He is faced with trying to find a
"right" answer to a problem that has no clear cut "right"
answer. The approach to such a situation
is to list the possible options, consider the advantages and disadvantages of
each option and select what appears, after due consideration, to be the best
option. (Some engineering ethics courses develop a decision making matrix for
situations like this. Using a matrix,
alternatives, selection criteria, and weighting factors are used to calculate
mathematically what appears to be the optimum solution.)
Engineer Kevin clearing
appears to have at least three options:
1. Maintain status quo of the
roadway. Reduce the speed limit further.
2. Find an alternate route
and eliminate the current roadway.
3. Widen the current roadway
at the expense of the 30 trees.
Option #1 does not eliminate
the problem because drivers are already known to violate the existing speed
limit. (The thought proposed by the
environmental group to sue drivers if they don't drive sensibly is an
irrational, unenforceable solution and should be rejected.) Option #2, while it could be very effective,
is probably not practical because it would involve a heavy expenditure of
funds.
Option #3 seems to be the
only workable solution and will involve engineer Kevin's convincing the
environmental group that the safety of users of the road is worth the
destruction of the trees. To encourage
the environmental group to withdraw their objection to this option, Kevin
should develop a plan to do new tree and shrub plantings along the newly
widened highway to restore its beauty and ecological integrity.
The citizen environmental
group is a special-interest group and caution must be exercised in dealing with
such a group. While special-interest groups frequently accomplish worthwhile
results, they are also frequently guilty of so polarizing a situation that it
is difficult to reach a rational decision.
In this case, it is unfortunate that a logical best solution was not
worked out without the local media adding to the turmoil of the situation. The special-interest group must be approached
in a spirit of compromise, settling differences by mutual concessions and
reconciling conflicts through adjustments in attitude and conduct.
C. John B.
Dilworth
Progress on this case can be
speeded up by starting with a comprehensive overview, to avoid any risk of our
accidentally failing to 'see the wood for the trees'. But seriously, it is helpful to step back
from the specifics of the trees and the road in this case. Some general points about different kinds of
risks, and their relation to environmental and other benefits, should help to
clarify what is at stake in the case. My
main emphasis will be on the complexities of decision-making in a case such as
this.
There is a general concern in
the development of social policy to achieve an acceptable balance between risks
and benefits for people. Another way of
raising the same or equivalent issues is to think of individual rights and
freedoms (including the right or freedom to do things which may be risky or
dangerous) as requiring to be balanced against the potential harms to oneself
or to others produced by the exercise of one's freedom.
In balancing risks against
benefits, it is useful to distinguish two different kinds or categories of
risk. The first of these could be called 'inherent risks', and concerns
actions, situations, devices etc. which are inherently risky or dangerous. An extreme example would be a hand grenade
which has had the pin removed and has been thrown. Such a device is inherently dangerous to a
very high degree, because it almost certainly will quickly explode and
devastate everything in its vicinity, no matter what anyone tries to do to
prevent it.
A more moderate example of
inherent risk is provided by the activity of rock climbing. It is generally agreed that rock climbing is
inherently risky, because no matter how one tries to minimize the risks and
maximize climber safety (through training, stronger ropes, and so on), some
significant degree of risk still remains.
This is shown by the fact that good climbers are killed or injured in
significant numbers every year. The
inherent nature of climbing risks has the consequence that the only way to
avoid the risk of such accidents is not to climb at all.
Now let us look at the other
basic category of risks, namely non-inherent or contingent risks. The important point about this category is
that the risk for items falling under it depends on other situational or
contextual features, so that members of this category have no standard level,
nor any minimum level, of risk associated with them.
For example, the level of
risk associated with driving an automobile depends upon indefinitely many other
factors, such as the age of the car and driver, the speed, the road conditions,
traffic density, and so on. Also,
arguably there is no definite minimum level of risk associated with driving,
that is, no inherent minimum risk associated with driving. (Those obsessed with achieving arbitrarily
low risk levels could choose to drive only very slowly on empty or private
roads, for instance.)
The significance of the basic
distinction (inherent versus contingent risks) for public policy is as
follows. With inherently risky
activities, the risk is a known quantity, or at least a lower bound can be set
on it, so that the activity is at least as risky as that lower bound. (For example, perhaps the lower-bound of risk
for rock-climbing is something like 1 accident for each 500 person-days of
climbing. Doubtless insurance actuaries
would have precise figures on this, or at least on average risks for each
activity.)
Given that inherent risks
have a strength which is a known, relatively unchanging quantity, it is
relatively straight forward to compare and balance them against the potential
benefits of allowing them to take place.
For example, NASA undoubtedly has good calculations on how likely it is
that a space shuttle, or an orbiting satellite, will be involved in a collision
with a meteorite sufficiently large to seriously damage the space vehicle and
abort its mission. (Such a risk is an inherent one because collisions occur
randomly, so it is impossible to remove the risk by any alterations to the
vehicle, environment or other factors.)
With a reliable estimate of the minimum risk, along with the known
potential benefits of a flight, it becomes a very routine matter to make a
rational 'go/no go' decision on whether to allow a given flight.
Another public policy example
would be a decision as to whether to make an influenza vaccine available. This is inherently risky (at a low level of
risk), because an irreducible percentage of people will have adverse reactions
to the vaccine. But again, a positive or
negative decision as to use can be straightforward because the standard minimum
risk can easily be compared with the specific potential benefits of the
treatment.
On the other hand,
risk/benefit comparisons in the case of non-inherent, contingent risks have a
fundamentally different structure. It
might be thought that their only difference from 'inherent risk' cases is that
the risk is a variable quantity, with the particular amount in a given case
depending on the specific situations or factors that exist. (For example, driving an old car very fast is
likely to be much more risky than driving a new car slowly.)
But in addition to the risk
being variable, the overall decision to be made (about whether to engage in an
activity, given the benefits and risks involved) is now required to be a much
more comprehensive, overall decision about a whole set of risk/benefit data
pairs. Recall that for inherent risks,
the only decision needed is a yes/no decision based on a single risk/benefit
pair. But with a contingent risk case,
there are now many possible risks, depending on various factors (the benefits
might vary also). These many risks,
along with the corresponding specific benefits, define many risk/benefit pairs
which somehow must be evaluated as a group.
It will help to clarify
things further if we re-introduce the main example from the current case,
namely the risk(s) to motorists that they might crash into trees along a 3-mile
stretch of
Our general question could be
expressed as follows: is it worthwhile for motorists to risk crashing into the
trees, given the benefits also provided by the trees? Or, acknowledging that the trees are just one
additional risk among others associated with driving, we might ask: are the
additional risks of having trees (rather than no trees) fully compensated for
by the additional benefits of having trees (over not having trees)?
If we assume that no changes
to traffic regulations, etc., are to be made, the relevant risk/benefit pairs
are defined by all socially possible distinct cases of 'a drive' along the road
(given present conditions). Each is
distinguished on the risk side by driver factors (age, disabilities, driving
record, frequency of driving,..), car factors (new/old, brand, maintenance
quality, speed,..), road factors (maintenance, traffic density, time of
day,..), and environmental factors (weather, immediate environment of road
including trees,..). On the benefit
side, arguably this too is variable, for example because very fast trips or
night versus day driving make visual enjoyment of the trees difficult or
impossible.
Somehow, using this
potentially infinite set of risk/benefit pairs, some decision must be made
about the overall benefits and risks of allowing the trees to remain
uncut. One might consider calculating
some sort of average or mean value for the risk and benefit, but an overall
decision might be dominated by just a small group of high-risk cases. (Some
unlikely situations may be so dangerous that a decision to cut the trees is
unavoidable.)
In the current case being
considered, the possibility of a successful lawsuit if there is an accident is
yet another complication. This risk is
not itself involved in the initial set of risk/benefit pairs. Rather, given a decision (based on that set)
to leave the trees standing, the lawsuit is one of the risks associated with
that specific decision.
As if things are not
complicated enough already, yet another whole dimension of the problem must
briefly be considered. Since we are dealing with contingent risks, it is very
tempting to try to 'mould' the overall situation and the factors involved so as
to make a desired outcome (e.g., leave the trees standing) highly likely.
For example, new traffic
regulations lowering the speed limit, with automatic radar detection and
photography of those violating the regulations, could presumably eliminate
virtually all of the original high-risk cases associated with speeding. Or should we use some other method instead? What would be the risks and benefits of
each? Notice that we now are forced to
somehow compare (formally speaking) the risks and benefits of different
risk/benefit sets, in making such a decision.
It might be objected at this
stage that 'molding' factors so as to get a desired result amounts to simply
ignoring the original problem, which is that of which result is socially or
morally most desirable. I would concede
this point, but it points us toward even greater complexity.
It seems that somehow we have
to consider all socially possible 'moldings' of factors relevant to the
situation (each with its associated set of risk/benefit pairs), whether the
overall outcome for each is 'yes, cut' or 'no, don't cut'. Then somehow (again), the overall risks and
benefits of each set have to be evaluated relative to each other, so that a
single winner (or group of similar winners) can be chosen. Its (their) decision
outcome, as to whether to cut down the trees or not, would finally give us what
we have been searching for in this case.
In conclusion, it is worth
noting that the complexities in decision-making we have uncovered in connection
with contingent risks are particularly common in dealing with environmental
public policy issues (e.g., building of condominiums versus preservation of
wetlands). Any situations involving
loosely related factors and complicated tradeoffs will tend to have at least
the same degree and kinds of complexity of decision-making as those discussed
here.
D. Joseph Ellin
I have to confess that I'm
biased on this case: I like trees, and I would never hire a road engineer named
Clearing. However I don't exactly see an
ethical problem either. There's a
question of balancing aesthetics and safety, a problem of values to which
there's evidently no correct answer.
Clearing is an engineer who evidently favors safety over all other
values, but this is not the unanimous view of the citizens of
Law suits have been filed,
and to a certain extent the courts have decided that the trees are not an
unreasonable hazard with regard to excessively speeding drivers. Evidently no law suits have been filed
against the VCRC by the victims of the five or more other fatal accidents, nor
by the victims of the many non-fatal accidents, which is some reason to think
that, at least in the opinion of lawyers practicing law in
There is a factual question
which Clearing should clear up, namely, to what extent the trees are a safety
hazard to drivers proceeding lawfully and within the speed limit. If the risk to such drivers is small, the case
for retaining the trees is proportionately greater. There is also the question of future road
traffic volume as
There is also the fact that a
wide straight road is not necessarily safest, since drivers are encouraged to
speed, beat the lights, etc. This is
especially true if there is in-coming traffic from unprotected curb cuts, which
tends to create hairy battles for road space.
Furthermore, even drivers like trees, as long as they don't themselves
crash into them, which they think they won't do if they drive safely (here is
the factual issue Clearing could resolve).
But if the traffic on
E. Wade L.
Robison
Whenever one acts, one is
acting within a context, and the context may make some options preferable to
others when, all things considered, it would be better to do something else
completely different. For instance, in
European countries many roadways have trees right near the road. These were often planted, among other
reasons, to form a canopy over the road, making the road less likely to be
covered with snow in the winter and more likely to be cooler in the summer. No
doubt accidents happen there too, but the costs of suits to the European
equivalent of country road commissions has not been so great, for whatever
reason, that European countries have felt moved to remove trees for safety's
sake. Indeed, even on heavily traveled
roads, the autobahn's of
In addition, though widening
roadways is the accepted procedure in this country, whenever a road becomes so
heavily traveled that the incidence of traffic accidents increases, it is not
necessarily the preferred solution if some things were fundamentally
different. More public transportation is
available elsewhere, and that can help alleviate traffic congestion, and if
Americans were willing to use such transportation, and it were
cheap and readily available, such a solution might help. In addition, one can build other roads to
help alleviate traffic, another two-lane road taking the place of doubling the
lanes on an existing road. But such a
solution often produces new problems--other land being condemned, other trees
being cut, and so on. In addition, it is probably likely that any state or
federal aid available is tied to widening existing roads--tied, that is, to
what is the preferred solution in this country--rather than anything
innovative.
So engineer
Kevin Clearing's problem is that there are few choices available to him given,
among other things, the state of the law in this country and the likelihood
that someone, going within the speed limit, will crash, and sue, and win a
large amount of money from the county. There are enormous disincentives to do anything other than widen the
road, and there may be enormous incentives, in the form of support from the
state or federal government, to do that. One person cannot change an entire
system.
Clearing has been asked to
come up with a solution to the traffic problem, and he has. He has come up with one that does not try to
change those features of the situation that seem to be causing the
difficulties--whatever it is about the drivers and the situation that has
caused one fatal accident every year and numerous other accidents, whatever is
causing drivers to drive too fast on the road, whatever is causing the
increased traffic on the road, whatever it is in the system that produces huge
amounts of money to those who are harmed in accidents and successfully sue, and
so on.
No doubt other options are
available besides widening the road--putting speed bumps in the road to slow
the traffic, putting guard rails up to keep traffic within the roadway,
increasing police patrols, and so on.
Each of these options has its advantages and disadvantages, and perhaps
one of them, or some combination of them, would succeed in making the road
safer.
The decision is ultimately a
decision that must be made by the road commission. They pressed Clearing
to come up with a solution, and they presumably must ask him to come up with
some alternative: it is not clear, that is, that he can act on his own
initiative. If not, then he must act, if he feels impelled, as a private
citizen, and he will have to decide whether to bring before the road commission
other options he thinks might help.
Deciding that will present some problems, for he might be perceived by
the road commission as undermining the recommendation he gave them and so
undermining the commission itself. So he
ought to ask them how they want him to proceed--if he thinks he can do anything
further regarding the issue.
If engineer Clearing can proceed on his own initiative, or if the road
commission asks him to proceed, he ought to present the reasons for the
original solution provided--the concerns about a lawsuit, and so on--and to
present alternatives, with all their attendant problems and benefits. Clearing ought to have originally provided
the reasons for whatever solution he thinks is optimal, explaining clearly how
he is ranking the various values in conflict here, how, that is, he weighs
safety against the concern for the environment represented by the citizens'
arguing to save the trees. If he now
thinks some other solution may be preferable, he ought to present it, with its
attendant benefits and burdens. His
obligation, that is, is to further an informed and intelligent dialogue among
the interested parties.
It may be that out of that
dialogue some alternative solution may emerge.
For instance, one easy way to ease the problem caused by crashes is to
make it harder for motorists to hit trees, and one way to do that is not to cut
down underbrush near the road, as is the preferred option among road
commissions throughout the country, but to plant bushes that will absorb the
impact of cars, causing minimal damage to them and to their occupants by
preventing them from running into something, like a tree, that will not give
upon impact. The road would then look
far different from how most American roadways look--not cleared verges, with a
stand of trees beyond the grass or gravel, but densely planted verges, with
bushes close to the roadway. Whether
such a dense population of plant life could be maintained in a roadway system
that relies so heavily upon salt to clean off ice and snow in the winter is
another issue, but the point is not that such planting is the preferred
solution, but that making clear the reasons for various alternative solutions
can do much to initiate an intelligent and informed dialogue about what ought
to be done, about which values ought to be given prominence and which solutions
are more likely to preserve those values and cause the least harm to other
values at issue.
_______________________________________________________________________________
Ethics Case - The Masters Thesis
I Dr. Nelson Nice is
on the engineering faculty at
One year later Jason, then a
graduate student at another university, wrote to Dr. Nelson Nice and asked him
if he would send him a copy of the final report of the work they had done
together. Jason explained that he had
matured considerably since his undergraduate days and was now working in a
related area. "Now," he said,
"I think I'm ready for more serious work. It would help me a lot if I
could see how things finally worked out in the project."
Should Dr. Nelson Nice send
the report to Jason Smart?
II Nelson Nice was not anxious to share the report with Jason Smart. Disappointed with the results of the
research, Nelson had turned his attention elsewhere. As far as he was concerned, the project was
dead. He also had to admit to himself
that he still was unhappy with Jason's performance on the project. However, he was impressed with Jason's
acknowledgment of his earlier immaturity and his apparent desire to do serious
work. So he decided to send it. He pointed out to Jason that, although the
research was now complete, it had not turned out as he had hoped, and he had no
plans to do further work in the area.
However, he wished Jason well in his graduate work and hoped that this
report might be of some help in giving him new ideas.
Several years later Nelson
Nice discovered that Jason Smart used the report as his Master's Thesis --
adding only a couple of introductory paragraphs, a concluding section, and an
updated bibliography. No reference to
Nelson Nice appeared anywhere in the thesis!
What should Nelson Nice now do about this? Is there anything that he could have done
earlier that might have prevented this from happening? What might he do in the future to decrease
the chances that this sort of thing will happen?
Commentaries
A. Gale Cutler
Information costs money to
generate and store and has value. Many
companies consider information a form of asset. Proprietary information is
information which a company or organization owns or is the proprietor of. This term is used primarily in a legal sense,
just as "property" and "ownership" are ideas carefully
defined by law. Normally it refers to
new knowledge generated within the organization which can be legally protected
from use by others. A rough synonym for
"proprietary information" is "trade secrets." A trade secret can be virtually any type of
information which has not become public and which a company has taken steps to
keep secret.
Jason has no proprietary
right to the information developed by Prof. Nice and in whose development he
participated in a minor way. That
information is proprietary to the university or the sponsor who funded the research
work. Some agreement prior to the
initiation of a research project must be developed (and adhered to) about to
whom the data and information assembled during the project belong. When Prof. Nice receives a request from Jason
he must get clearance from the owner of the proprietary information before
sending a copy to Jason. The only case
in which this would not be necessary is if the university/Prof. Nice arrangement grants ownership of the
information contained in the report to Prof. Nice. Even in that case, it is unwise to send the
information to Jason without a clearly defined explanation of just what Jason
intends to do with the report.
When Prof. Nice finds out
what Jason has done with the report he must admit the error he made and inform
authorities at the university that granted Jason his degree of this flagrant
case of plagiarism (passing off of another's work as one's own). Hopefully, this step (which is a form of "whistleblowing")
should lead to the action granting Jason a master's degree being
rescinded. Where were the university
supervisors of Jason's graduate work when this plagiarism was happening?
A case somewhat similar to
this occurred at a company for which I worked.
An employee left voluntarily to go to graduate school. Due to some slipshod handling of his
"exit procedure" by the Human Resources Department, the fact that he
had taken his laboratory notebooks (containing company proprietary data) was
not discovered until several weeks after his departure. Letters asking him for his notebooks, which
contained proprietary (and sensitive) data on the flammability of plastics,
were ignored. A couple of years later he
received a Master's Degree in Chemistry from a reputable university. Major portions of his thesis bore strong
resemblance to the research work he had done for the company at which I worked. We chose to take no action because we felt we
could not prove his plagiarism in court if a legal action developed.
B. John B.
Dilworth
Should Nelson Nice send a
report on a project to Jason Smart, who assisted on the project at one
stage? Unless Nelson has some specific
reason to doubt Jason's motives, or some general
reasons for restricting access to his own work, professional courtesy and the
ideal of free, unregulated exchange of information would be served by sending
it.
Note that it makes no
difference whether the report has been published by Nelson Nice or not, because
Nice as the head of the research project holds copyright to the report. Hence
any other use or publication of the material without Nice's
permission, such as that by Jason in his plagiarized thesis, is illegal (and immoral).
What should Nelson Nice do
when he discovers the plagiarism? First,
he would have every right to get extremely angry. Jason as a former student of
his has betrayed Nelson's trust in him, and has stolen his work and passed it
off as his own. Jason has also betrayed and subverted the academic standards of
the institution examining him for a Master's degree.
After cooling down somewhat,
Nelson might reflect as follows. As well
as personally being a victim of Jason's crime, he has a duty to ensure that
justice is done, and that adequate steps are taken to ensure that the
circumstances which made the crime possible do not occur again. The main problem was not sending Jason the
report, but Jason's dishonesty coupled with inadequate supervision by his
degree committee at his new institution.
Nelson must effectively communicate all of this to the appropriate
persons or institutions.
Next it is time for
controlled paranoia to take over. Nelson
is entering the crazy, upside-down world of 'whistle-blowing', in which honest
attempts to reveal wrongdoing can all too easily end in failure or even
personal disaster for the initiator. The
unpleasant truth is that those corrupt enough to plagiarize, or falsify
scientific reports, etc., are also corrupt (and clever) enough to prepare
elaborate fall-back positions if their deceitful activities should ever be
discovered.
For example, Jason may have
kept voluminous records of his own and other student's contributions to the
original project. Then, if ever
challenged on his thesis, he would claim that after all it was he, and not
Nelson, who had done the work on which the report was
based. If for any reason Nelson no
longer has full records of the project, Jason's ploy could well succeed.
Even if Jason has no such
fall-back, he may well find invaluable allies in the officers and institutions
of his new university. In the face of
claims by outsiders of gross academic malpractice or negligence, those involved
are quite likely to 'close ranks' and attempt to cover-up the problem, rather
than undergo searching and painful investigation of what went wrong in the
case. A Department whose graduate
program might be seriously compromised by publicity about poor-quality advising
of students is unlikely to be impartial in judging claims of plagiarism by its
students.
So overall, Nelson Nice needs
to act both cautiously and decisively, to both protect his own interests and to
forestall attempts by others to 'cover-up' the problem. As for the future, Nelson would be wise to include
warnings about the evils of plagiarism and falsification of evidence in his
graduate courses.
C. Joseph Ellin
I Prof. Nice is asked by a former student,
Jason, to send a copy of a report they had worked on together. Should Nice
comply? Why not? No reason is given for not sending the
report: a mere question of courtesy, one would think.
II We
are now told that Nice doesn't like the report and doesn't much care for Jason
either. But he sends the report anyway,
only to discover years later that Jason has plagiarized it for his MA
thesis. There is no problem here either:
plagiarism should be investigated and punished.
Nice must initiate an investigation through the appropriate authorities
at Jason's university. As to what he
could have done to prevent this from happening, there are several things. He might have earlier protected himself a bit
by indicating on the report that it had copyright protection: "Not for
publication. Do not quote without
permission." He might assure
himself that his students understand what plagiarism is and why it's wrong. He
might ascertain that his university has appropriate policies in place. These are more management problems than
ethical ones; the ethical point is to try to create conditions such that
ethical violations such as Jason's are less likely to occur. It means not trusting people to the extent
Nice would like to; but when the protections are in place, you can then be free
to trust them more.
D. Carl O. Hilgarth
I Prof. Nice, in deciding how to respond to
Jason Smart's request, should have the following
questions:
o Why is he requesting a copy of the final research
report after losing interest in and leaving the project?
o Does his contribution to the research project merit
his receiving a complete copy of the research report?
o How was my research project associated to the related
area he is now working in?
o How will seeing the report and how things worked out
help him?
Without further information
about Jason's graduate work, these considerations and the fact that the
research was essentially done by Nelson Nice suggest the professor write Jason
and express an interest in his current graduate work, inquire who his graduate
research advisor is, and how the results of his research project will help. He
should include an abstract of the report and summary of the results. If Jason
is serious about his work, he will respond.
II Even though Prof. Nice was not anxious to share the report with Jason
Smart, was disappointed with the results of the research, and unhappy with
Jason's performance on the project, he responded as many of us probably
would. He sent Jason a letter pointing
out that although the research was now complete, it did not turn out as he had hoped, that he had no plans to do further work in the area,
enclosed a copy of the report, and wished him well. Several years later Prof. Nice finds out that
Jason used the report as his Master's Thesis - adding some a couple of
introductory paragraphs, a concluding section, and an updated bibliography, but
not acknowledging or citing his work.
Were I Nelson Nice, my first
reaction would be to assume academic misconduct - plagiarism. However, before
acting, it's important to check things out. Since Jason's project was in a
related area it might have been based on my research and used what he did as my
undergraduate assistant as the starting point. I would contact Jason, cite my
report, the fact that it appeared without any reference in his thesis, and ask
him how this happened. Perhaps he duplicated my laboratory work with different
results, especially since he added new introductory paragraphs, a conclusion
and an updated bibliography. It would be interesting to hear what he would say.
A call and a "little shop talk" with his graduate faculty advisor is
also appropriate to confirm Jason's explanation. I may find his impropriety in
not citing my research to be an oversight on his part, perhaps due to my
reluctance to share my research report because of the "disappointing
results." On the other hand, I might find that his research was legitimate
and might provide a new perspective to my research causing me to reconsider my
decision not to de further work in this area. Under either of these conditions,
my resolution would be to request that he amend his thesis to cite my prior
work, even if that work led to a different conclusion.
Or, I might find that he is
still immature and impatient with laboratory work and writeups
and used my report as a shortcut. At worst, academic misconduct - plagiarism -
could be the case. If this is what happened, my action would be to discuss this
with the faculty at the institution that granted Jason his master's degree,
citing as the reason to investigate his alleged academic misconduct the fact
that his master's thesis contained my research report of work done at the
institution where the student was an undergraduate laboratory assistant. I
would have to present the documents, correspondence, events, and circumstances
through which the student received a copy of the report. The institution
granting Jason his graduate degree would be responsible for the investigation
under their student code of conduct, and I would have to abide by their
finding.
To decrease the chances this
situation occurring, whenever someone requests a copy of your research, only
send copies of published papers, or refer them to the appropriate journal. In
other instances, to protect work you haven't published, send an abstract and a
summary of the results.
E. Wade L.
Robison
I Various forms of
questions reflect various assumptions. That this case asks whether Nelson
should send the report to Jason implies that the report has not been published
in any way and that the question of whether to send the report is Nelson's to
answer. If the research had been funded by an outside source, then that source
might have to give its permission for the report to be circulated, and if the
report had been published, Jason can track it down himself and need not be
dependent on Nelson for anything other than, perhaps, the information that the
report has been published. So the way the question is posed suggests that the
report is Nelson's to do with what he sees fit. If he prefers that others not
read it, that is for him to decide.
He certainly has no
obligation to send it to Jason even though Jason worked on the project. Jason's
leaving the project before the work was completed removes any obligation Nelson
might have had.
But it is not obvious that
any harm could come from Nelson's sending Jason a copy, and, after all, Nelson
is a professor, Jason was his student, both are presumably in the same area,
engineering, with Jason going on to graduate school; and so Nelson may properly
feel that it would help a former student to give him a copy of the report. One
may argue that one never loses a student. They can always ask a professor to
write a letter of recommendation, though it may become more and more awkward
the older and more removed from college they get, and so it is appropriate for
Nelson to continue what part of that relationship he can by encouraging Jason.
After all, it is a compliment to have a former student request a copy of
something one has worked on, and since, we assume, Jason was one of Nelson's
better students (for why else are we to assume he was chosen as student
assistant), Nelson may properly feel that Jason would be an asset to the
profession and so want to encourage him.
II If
Nelson later discovers that Jason has used the report for his Master's Thesis,
he has an obligation to report that--to the advisor listed on the Thesis, to
the chair of the Department of the university in which the thesis was given,
and to the University itself. He may also have an obligation to report it to
whatever legal body is responsible for ethical issues in the profession. Jason
is effectively stealing someone else's work, and he has no right to do
that--even if, as Nelson indicated, Nelson has no further interest in the
report and so does not intend to publish it. In addition to taking Nelson's
work, Jason is also misrepresenting that work as his own. He is thus
effectively lying to the Department and the University and his advisor there.
And, in addition, he is misrepresenting himself as someone capable of doing
that sort of work--to the University and to any future employers who see that
he got a Masters from that university. He may well be capable of such work, but
it is not fair to those who have done the proper work for a
masters to represent oneself as having done it and compete with them on
an apparently equal footing for honors and jobs.
It is not clear what Nelson
could have done to prevent this from happening. He might have put on the Report
"Commonlaw copyright" and "Not for
publication," but such stamps, even if duplicated at p. 100, as libraries
do when they print their names on the books they purchase, would not prevent
anyone from typing up the entire report again.
He could also refuse to
circulate unpublished papers and reports, citing concerns about having his
ideas taken without credit to justify this closed-door policy. What he has to
weigh here is whether such a policy properly furthers knowledge. If he indeed
did not intend to pursue the subject of the report, then it would have
languished in his filing cabinet until he died, then, probably, to be tossed.
He worked on the project and may have uncovered something he did not realize he
had. Circulating one's unpublished papers has the advantage of helping to
ensure that whatever goodies are buried in fact make the light of day. He also
has to weigh that consideration, which is a matter of general policy about the
point of doing research, against he judgment that
Jason might well profit from reading the report. After all, if Jason is now
having second thoughts about how he handled himself in that project, then
giving him the report to read so that he can see how things turned and thus
what he missed out on by not doing a better job in the project may be just what
Jason needs to mature further. Cutting him off may be taken as an affront and
may be unhelpful in furthering his growth as an engineer and as a person.
It is not obvious what answer
one ought to arrive at when going through such a calculation. It is one thing
to keep to oneself what papers one has that one is working on and intends to
publish. Premature circulation of an idea can work against the dramatic impact
of its sudden publication and risks its loss as well. But if one has decided
not to pursue a project, it is not obvious that keeping a report on the project
to oneself is justifiable. It would be if one knew ahead of time what Jason
planned to do, but one does not.
_____________________________________________________________________________________
Ethics Case Study Property
(ownership of technical knowledge such as computer software)
I Derek Evans used to work for a small computer
firm that specializes in developing software for management tasks. Derek was a
primary contributor in designing an innovative software system for customer
services. This software system is
essentially the "lifeblood" of the firm. The small computer firm never asked Derek to
sign an agreement that software designed during his employment there becomes
the property of the company. However,
his new employer did.
Derek is now working for a
much larger computer firm. Derek's job is in the customer service area, and he
spends most of his time on the telephone talking with customers having systems
problems. This requires him to cross reference large amounts of information. It
now occurs to him that by making a few minor alterations in the innovative
software system he helped design at the small computer firm the task of cross
referencing can be greatly simplified.
On Friday Derek decides he
will come in early Monday morning to make the adaptation. However, on Saturday evening he attends a
party with two of his old friends, you and Horace Jones. Since it has been some time since you have
seen each other, you spend some time discussing what you have been doing
recently. Derek mentions his plan to
adapt the software system on Monday. Horace asks, "Isn't that unethical? That system is really the property of your
previous employer."
"But," Derek replies, "I'm just trying to make my work
more efficient. I'm not selling the
system to anyone, or anything like that. It's just for my use -- and, after all, I did
help design it. Besides, it's not
exactly the same system -- I've made a few changes." What follows is a discussion among the three
of you. What is your contribution?
II Derek installs the software Monday morning.
Soon everyone is impressed with his efficiency. Others are asking about the
"secret" of his success. Derek
begins to realize that the software system might well have company-wide
adaptability. This does not go unnoticed
by his superiors. So, he is offered an
opportunity to introduce the system in other parts of the company.
Now Derek recalls the
conversation with Horace Jones and "you" at the party, and he begins
to wonder if Horace was right after all.
He suggests that his previous employer be contacted and that the more
extended use of the software system be negotiated with the small computer
firm. This move is firmly resisted by
his superiors, who insist that the software system is now the property of the
larger firm. Derek balks at the idea of
going ahead without talking with the smaller firm. If Derek doesn't want the new job, they
reply, someone else can be invited to do it; in any case, the adaptation will
be made.
What should Derek do now?
III Suppose Horace Jones is friends with people who work at the smaller computer
firm. Should Horace Jones tell his
friends about Derek's use of the software system from the smaller computer firm
Derek formerly worked for?
Commentaries
A. Neil R. Luebke
The general problem area
raised by this case is ownership and use of technical knowledge. One question might be phrased, "What is
the right of the individual engineer to specific items of technical knowledge
which he/she came to possess because of and while in the employ of a
firm?" However, there are additional, more broadly ranging, questions such
as, "How, through communicating or (mis)using
technical knowledge gained in a previous employment, might an engineer cause a
current employer considerable trouble and expense?" and "To what
extent is an engineer responsible for the firm's use of his/her technical
knowledge?" Particular cases
dealing with intellectual property, as in the present instance, are often
complicated by a number of legal considerations. In any event, Derek would be well-advised to
seek the counsel of his firm's lawyers before proceeding and to urge his
superiors to do the same.
There are at least two major
gaps in the case description that must be filled before concrete, detailed
advice could be given to Derek. One is
the matter of ownership, and the particular type of ownership, of the innovative
software system. The other is whether Derek's new firm has a license to use the
original software system. Regarding the
first, the case description does not explicitly state but strongly suggest that
the software system belongs to Derek's former firm. It is said to be the commercial
"Lifeblood" of the firm, Derek and other developed it while employed
by the firm (presumably as past of their jobs), and Horace's remark "That
system is really the property of your previous employer" is not challenged
but apparently accepted by Derek. The
fact that Derek did not sign an explicit agreement with his former employer may
be immaterial. The former employer might
have a company policy governing ownership.
[My university has a detailed policy governing the ownership of patents
and copyrights developed by university employees. No employee "signs" the policy and
it went into effect, valid from its adoption date, years after I first joined
the university faculty.] Then, too,
there are legal precedents regarding design work done by employees while under
hire to do such work. Derek's assumption
that his helping to design the system gives him some sort of "right"
to use it or change it may be dangerously flawed. It is remotely possible that Derek had and
retains some sort of ownership right in the system, but there is nothing
positive in the case description to suggest so.
There is also the question of
Derek's current firm's license to use the software system, for they obviously
do not own the original version. The
case description suggests that the current firm has not purchased a license to
use the original system, but wants Derek to replicate the whole system, with a
few modifications, for extensive company use and (claimed) ownership. Such a move would seem to be a violation of
copyright by the firm. It is not clear that Derek himself has a license to use
the system he may be "pirating" it.
There are situations in which a company buys a license to use a software
system and, as part of the purchase, also buys access to and use of the
"source code" for the system, legally permitting the company to
modify the system for its own needs. If this were the case¾but there is nothing
of the sort stated or implied in the description there would be no problem in
introducing the modification and the firm is fortunate to have a person with
Derek's experience. (There may still be
a problem with "owning" the modified system.) More commonly, the
license to use a system prohibits the licensee from modifying the system (which
would at least void the warranty) or distributing it to other parties; the
software supplier retains the right to service, updates, or otherwise control
modifications in the system. The user's
rights and their limits are usually spelled out in legal detail in the purchase
agreement and warranty.
As both Derek and his new
employers could be exposed to a major lawsuit, Derek should insist that his
superiors obtain legal counsel before the situation develops further. Derek may already be guilty of using proprietary
information.
[Perhaps a few background
remarks are in order here concerning the topics of patents and copyrights, trade
secrets, and agreements that might be signed regarding maintenance of
confidentiality or other intellectual property rights. The
There is another category of
protected information usually called "confidential information,"
"proprietary information," or more commonly "trade
secrets." For a variety of reasons,
companies may prefer to use the trade secret route to protect information,
designs, formulas, and possibly even computer programs developed within their
firms. One reason is the expense
associated with patenting. Another
reason has to do with the fact that a patented or copyrighted item becomes a
matter of public record and hence is publicly accessible. While at the time of this writing there is no
national trade secret law, there are a number of statutes on the books of
various states and a large number of court decisions protecting the rights of a
firm to maintain its own trade secrets.
Companies have successfully sued each other for trade secret theft. (Surely they were never parties in signing
any ownership agreement!) One process by
which trade secret theft sometimes occurs is the hiring of an employee from
another firm and then putting that employee in a position to use specialized
knowledge obtained from the previous firm.
A trade secret can be any specific piece of information a list of
customers, a mathematical formula, a chemical formula, a process design, and so
on that gives the company holding it a competitive advantage in the marketplace
and has been identified or treated by the company as confidential. Generalized skills that an employee may pick
up on the job, such as a skill in using certain programming techniques or a
skill in the conducting some type of chemical analysis, would not be regarded
as trade secrets but rather as general knowledge that becomes part of the
employee's overall ability.
In order to help the company
in protecting trade secrets (an activity that is extremely important in more
technological firms) as well as in alerting employees to policies governing
patents and copyrights, employees are often requested to read and sign an
employment agreement. These agreements
explain the company's policy regarding patents, copyrights, and trade secrets
and usually call attention to the employee's obligation to continue to maintain
confidentiality indefinitely, not just during the time of employments with the
company.]
Let us suppose that the
company, at Derek's insistence, does carry out negotiations with the smaller
company producing the original software.
Derek's ethical commitments to his previous and his current employers
would not be violated. He will have kept
faith with his previous employer, and he cannot be charged with knowingly doing
anything to damage his current employer.
His current firm may be able to work out some kind of relationship with
the previous employer and possibly even come to a business arrangement for the
marketing of the adaptation for even more commercial profit.
On the other hand, let us
suppose that the company does not talk with the supplier of the software and
insists on going ahead with or without Derek in making the adaptations
company-wide. Let us also suppose, as is
likely to be the case, that at least someone in
Derek's previous company finds out about the new use of the software system.
Derek's new employer, as well as possibly Derek himself, could be confronted by
a lawsuit having to do with the infringement of copyright. Even if the lawsuit is not successful, the
legal action could prove costly for Derek's employer. It certainly might besmirch his reputation,
both within the company and outside of it.
Derek should at least do what he can to urge his superiors to seek legal
advice in this matter. His professional
responsibilities to his current employer as well as to his previous employer
would call for no less. If his superiors
are too pig-headed to seek and listen to legal counsel on this matter, Derek
would probably be better off working for a more enlightened firm at least one
that would not ask him to act illegally.
B. John B.
Dilworth
This is one of the few cases
where the specific legal provisions governing the matters at issue are of
primary importance in clarifying and resolving the problems. In the case of software, some basic points
about copyright law, and some related matters concerning software licensing,
are vital to understanding the case, and to distinguishing it from other cases
of ownership or rights as they apply to employees. Therefore these legal provisions will be
spelled out as an integral part of this commentary.
1. Copyright in software is
treated under current
Authorship as discussed above
is subject to the following important qualification. The author of a work might prepare it as a
"Work Made for Hire" (defined as a work prepared by an employee
within the scope of his/her employment), and explicitly state this on the
Copyright Registration form. In this
case, the copyright statute provides that the employer rather than the employee
is considered as the author (and hence as the copyright holder). However, it is important to note that, in the
absense of any such explicit acknowledgement by an
author that the work was "Made for Hire",
the normal assumption would be that the actual author/s hold copyright to the
work, unless other substantive evidence could be produced to prove that it was
"Work Made for Hire".
In the current case, we are
explicitly told that Derek was never asked by the small computer firm to sign
an agreement that software designed during his employment there becomes the
property of the company. If he signed no
such agreement, nor (as we may consequently assume) specified that his work was
a "Work Made for Hire" in any copyright registration application,
then legally he would have a strong presumptive case that he was (and still is)
the copyright owner of the software in question. (The possible complication
that he was the primary, but not the only, contributor to the software will be
considered later.)
It might be objected that in
most cases of employer-employee relations, if one works for someone then they
own the products of one's labor. This is broadly true, but creative works
falling under the copyright laws work differently. A familiar example in higher education is the
fact that professors retain copyright in their books or papers even if they
were hired to carry out such creative research.
In the present case, the fact
that Derek was indeed working for a computer firm while preparing the program
etc. is not sufficient to establish copyright ownership by the firm. For in the case of software copyrights, there
are other rights or permissions to use the software which the firm will have
acquired as a result of Derek's activities, which are fully adequate for their
business purposes and which justify their hiring and compensating of Derek for
his work. They get broadly what they
want, but it is rights and permissions to use the software which they get,
rather than ownership of it. (Recall
that they could have had ownership too, but neglected or elected not to take
the necessary legal steps to secure it.)
Here is a brief discussion of rights and licensing in relation to
copyright, to help clarify these matters.
2. Everyone is familiar to
some degree with literary and movie rights, for example that a producer may
have to pay a novelist a large sum to get the movie rights to a book. These rights give the movie producer the right
to produce a film version of the novel, but do not in any way transfer the
copyright (or ownership) of the novel to the producer. Similar considerations apply to software too:
acquiring the right to make certain uses of software does not transfer its
ownership. Derek's firm acquired rights to use his software system for customer
services in virtue of his being employed by them to produce the software, but
the firm does not thereby acquire property rights in the software.
More
distant still from ownership considerations are issues about licensing. Almost all
actual software contracts involve some kind of software licensing, in which the
copyright owner gives permission to one or more licensees to make certain kinds
of use of the software. Though an
exclusive license is possible, most licenses are of a non-exclusive kind, so
that many different licensees could make similar uses of the software without
violation of their contracts. Clearly in
such cases there is no question of any transference of ownership in the legal
arrangements.
3. In the present case we are
given no specific information about what rights or licensing arrangements were
in force between Derek and his original small computer firm, but these can be
reasonably inferred from the conduct of the parties. Minimally his firm needed from Derek a
perpetual, non-exclusive licence to use and modify
his source code for the software. Then
they could use the software indefinitely, and modify it at any time in the
future as changes became desirable.
However, unless there was a written contract in existence (signed by the
firm and Derek) in which Derek granted the firm an exclusive license to use the
software, Derek is free at any time to license the same software (whether or
not he chooses to make changes in it) to anyone else, and under any terms he
wishes.
The implications for the
present case are clear. Derek as the
copyright holder can use or modify his software for use in his new larger
computer firm in any way he pleases, with or without discussing it with his former
employer. What is more, his new employer
cannot claim ownership of the software, because it was developed prior to
Derek's current employment rather than as part of his current design work.
However, Derek would
certainly be wise to come to some explicit agreement with his new firm about
how he would allow them to use the software. In effect, the new firm wants
Derek to produce a customized version of the software for them, and he could
agree to do this as part of his regular compensation, while also negotiating a
monthly or yearly licensing fee in return for granting them appropriate rights
to use the software. Or to simplify
things, Derek might be tempted to sell them the package outright for a suitable
compensation, in which case there would be an actual transference of ownership
of the package.
4. We are told that Derek was
a "primary contributor" in the original development of the
software. This suggests the possibility
that he may jointly hold the copyright to the software with one or more other
designers. How would this affect the
case? Generally, joint ownership allows
each owner to exercise all rights of ownership, except for those whose exercise
would materially affect the rights of the remaining owners. (Commonplace examples include such matters as
joint ownership of a home or bank account.)
In the present case, this means that Derek is free to grant
non-exclusive licenses to use the software to anyone (but not to everyone),
since other joint owners would not be thereby prevented from exercising similar
rights. On the other hand, Derek should
refrain from attempting to grant an exclusive license, or from attempting to
sell the software outright, because both of these actions would materially
affect the interests of any other joint owners.
Does Derek have any moral
obligation to contact his former employer, or his co-workers there, before
exercising his legal rights as detailed above?
First, it is prudent for anyone in business to stay on good terms with
both present and former associates. In the interests both of common courtesy
and of safeguarding his own career, Derek would be well advised to explain his
actions and his view of the case to anyone who might otherwise resent or be
annoyed by them, including his former associates and friends.
Second, if there are indeed
co-authors from his previous firm whom Derek could contact, he should do
so. A basic principle of legal ethics,
assumed in contract law, is that parties who enter into a contract or agreement
are thereby obligated to make a good-faith effort to carry out the terms of the
contract, both explicit and implicit.
Co-authorship, as with other forms of joint ownership, could appropriately
be viewed as requiring that one should keep co-authors informed of one's
actions with respect to the joint property, even if this is not explicitly
spelled out in a written agreement between the co-authors.
C. Michael S.
Pritchard
It might seem that this case
is basically about law rather than ethics.
Clearly it does raise a number of legal questions. However, there is a
strong ethical dimension as well.
Derek's desire to adapt the software program to his new job
circumstances seems innocent enough. But
the fact that his new employer required him to sign a software agreement that
what he designs becomes company property should have alerted him to a potential
problem. Although Derek did not sign a
similar agreement with his previous employer, this does not conclusively settle
the question of ownership. Others were involved in the initial design.
At the very least, Derek
should have inquired about the ownership matter prior to adapting the software
to his purposes. This would not only
protect his current employer from a potential law suit (should the previous
employer choose to sue), it would also evidence respect for the interests of
his previous associates. Carelessly
placing one's employer at legal risk is both an ethical and a legal
concern. Indifference to the interests
of his previous associates is an ethical concern, unless we can assume that
Derek is estranged from them (and even if he is, there might have been an
implicit understanding about the disposition of the software). After all, Derek is very possibly legally
entangling the "lifeblood" of his previous employer, given his
current employer's apparent desire to claim ownership of its employees'
software designs.
It might be objected that
Derek did not know that his new employer would use all means at its disposal to
adapt the software system throughout the company. True, but his having to sign
an ownership agreement should have put him on alert.
It seems clear from the case
that Derek bore no special animosity against his previous employer and
associates. Now, to his regret, he has
become involved a legal and ethical quagmire.
Perhaps a careful investigation of law can clarify the legal rights involved
in this case, but the ethical concerns cannot be handled so readily. So, I conclude that Derek should have
proceeded with greater caution, heeding the concerns of Horace. A call to his previous employer before
adapting the system might have avoided these problems.
____________________________________________________________
Ethics Case Study Pollution Concentration in
Manufacturing Plant Wastewater
I Marvin Johnson is
Environmental Engineer for Wolfog Manufacturing, one
of several local plants whose water discharges flow into a lake in a
flourishing tourist area. Included in Marvin's responsibilities is the
monitoring of water and air discharges at his plant and the periodic
preparation of reports to be submitted to the Department of Natural Resources.
Engineer Marvin has just
prepared a report that indicates that the level of pollution in the plant's
water discharges slightly exceeds the legal limitations. However, there is little reason to believe
that this excessive amount poses any danger to people in the area; at worst, it
will endanger a small number of fish. On
the other hand, solving the problem will cost the plant more than $200,000.
Marvin's supervisor, Plant
Manager Edgar Owens, says the excess should be regarded as a mere
"technicality," and he asks Marvin to "adjust" the data so
that the plant appears to be in compliance.
He explains: "We can't afford the $200,000. It might even cost a few jobs. No doubt it
would set us behind our competitors.
Besides the bad publicity we'd get, it might scare off some of tourist
industry, making it worse for everybody."
How do you think Marvin should respond to supervisor
Edgar's request to adjust the pollutant concentration data.?
II No
doubt many people in the area besides Marvin Johnson and Edgar Owens have an
important stake in how Marvin responds to Edgar's request. How many kinds of people who have a stake in
this can you think of? [E.g., employees at Wolfog.]
III Engineer Deborah Randle works for the Department of Natural Resources. One of her major responsibilities is to
evaluate periodic water and air discharge reports from local industry to see if
they are in compliance with antipollution requirements. Do you
think Deborah would agree with the Plant Manager's idea that the excess should
be regarded as a "mere technicality"?
IV Consider the situation as local parents of children who swim in the lake.
Would
they agree that the excess wastewater pollutant concentration is a "mere
technicality"?
V A basic ethical principle is "Whatever
is right (or wrong) for one person is right (or wrong) for any relevantly
similar persons in a relevantly similar situation." This
is called the principle of universalizability. Suppose there are several plants in the area
whose emissions are, like Wolfog Manufacturing's,
slightly in excess of the legal limitations. According to the principle of universalizability, if it is right for Marvin Johnson to
submit an inaccurate report, it is right for all the other environmental
engineers to do likewise (and for their plant managers to ask them to do so). What
if all the plants submitted reports like the one Edgar Owens wants Marvin
Johnson to submit?
VI Now that you
have looked at the situation at Wolfog from a number
of different perspectives, has your view of what Marvin Johnson do changed from
your first answer?
Commentaries
A. Kenneth L.
Carper
It is interesting to notice
the language people use to justify unethical behavior. Plant Manager Edgar
Owens refers to overlooking "mere technicalities," when he really
means breaking established laws. He requests Marvin Johnson to "adjust"
the report, when he really intends for Johnson to falsify scientific data.
The falsification of data is
viewed by scientists and engineers to be an extremely serious breach of
ethics. Marvin Johnson is being asked to
compromise one of the most important moral concepts in science, truthfulness in
reporting of scientific measurements.
Should he consent to a false report, and should the incident come to
light, his own personal career will be in grave jeopardy. The scientific and engineering community
cannot survive unless its members can trust one another to present data
truthfully.
Yet, Marvin Johnson finds
himself in a very difficult position.
His manager has raised the question of loyalty. The implication is that truthfulness will
damage the company; fellow employees will suffer. Competitors will profit at the expense of Wolfog Manufacturing.
The arguments given by Edgar Owens can be quite persuasive, and they are
all too familiar in the corporate setting (Nelson and Peterson 1982). Regulations are often seen to be unrealistic
or arbitrary. The assumption is often made that competitors must be falsifying
data to meet these unrealistic expectations, so it is only wise business
practice to do what everyone else is doing.
Much has been written about
the pitfalls of misguided loyalty. While
principled loyalty can be a commendable virtue, misguided loyalty has been
responsible for many, many tragic moral disasters. When loyalty to a corporation,
or a government, or an individual, requires the sacrifice of fundamental moral
principles, such loyalty is not a virtue.
Engineers who find themselves
in stressful situations like this should refer to their professional Code of
Ethics. This can be a helpful, tangible
tool in negotiations with their employers. (Carper 1991,
Davis 1991). Certain fundamental
ethical principles are embodied in the Codes of Ethics adopted by professional
societies, and the embattled engineer can point to these principles, stating
that his or her career as an engineer requires adherence to these principles. What
engineer Marvin Johnson is being asked to do is a violation of the canons of
his profession.
The principle of universalizability is introduced in this case study.
Immanuel Kant's "categorical imperative" provides this guidance:
Act only according to that
maxim by which you can at the same time will that it should become a universal
law.
In this case, Johnson should
not write an "adjusted report" unless he is truly willing to accept
similar actions by all his colleagues in the scientific and engineering
community when confronted by similar situations and similar pressure from their
employers. Should engineer Johnson
consent to Edgar Owens' request, later selfanalysis
of his actions will bring the crisis of conscience experienced by others who
have compromised their values in the interest of misguided loyalty.
One relevant example is the
B. F. Goodrich case involving data falsification on critical brake and wheel
assembly testing for Air Force attack aircraft (Martin and Schinzinger
1989, p.58). The firsthand account
provided by Kermit Vandiver, a B. F. Goodrich
employee, is very enlightening (Vandiver 1972).
Deborah Randle, an engineer
who works for the Department of Natural Resources, will most certainly evaluate
reports from the various corporations with the principle of universalizability
in mind. How else can someone charged
with global responsibility operate, and remain impartial? False data will be absolutely unacceptable to
engineer Randle. Again, engineers simply must be able to trust each other.
Should an unethical report be
discovered, not only will engineer Johnson's reputation be irreparably damaged,
but the impact on Wolfog Manufacturing will also be significant . The case of emissions test data falsification
by the Ford Motor Company shows the damage such behavior can do to a
corporation (Martin and Schinzinger 1989, pp.
163164). A review of the Ford case
illustrates the fact that compromising ethics in the interest of loyalty can
actually result in great damage to the very employer one is trying to protect.
It seems that engineer Marvin
Johnson has some thinking to do. It is probably not yet time to "blow
the whistle" publicly. There are some moral principles and procedures
involved in proper whistleblowing, and Johnson has
not yet exhausted his avenues within the corporation (Elliston et al
1985). Indeed, Johnson has an excellent
opportunity to provide some moral leadership to his colleagues by speaking out
on the issue of scientific truthfulness.
But engineers simply must refuse to work for corporations that place
profit above scientific honesty. If
Edgar Owens represents the moral stature of the Wolfog
corporate management, then Wolfog Manufacturing is
not a healthy environment for an honest engineer.
Suggested
1. Carper, Kenneth L. 1991.
"Engineering Code of Ethics: Beneficial Restraint on Consequential
Morality," Journal of Professional Issues in Engineering Education and
Practice, American Society of Civil Engineers, New York, NY, Vol. 117, No. 3, July,
pp. 250257.
2. Davis, Michael 1991.
"Thinking Like an Engineer: The Place of a Code of Ethics in the Practice
of a Profession," Philosophy and Public Affairs, Princeton University
Press, Princeton, NJ, Vol. 20, No. 2, Spring, pp. 150167.
3. Elliston, Frederick, J.
Keenan, P. Lockhart and J. van Schaick 1985. Whistleblowing Research: Methodological and Moral Issues, Praeger Publishers,
4. Martin, Mike W. and R. Schinzinger 1989. Ethics in Engineering
(2nd edition), McGrawHill, Inc.,
5. Nelson, C. and S. R.
Peterson 1982. "The Engineer as Moral Agent," Journal of Professional
Issues in Engineering, American Society of Civil Engineers,
6. Vandiver,
Kermit 1972. "Why Should My Conscience Bother Me?" from In the Name
of Profit, by Robert L. Heilbroner, Doubleday and
Company, Inc., Garden City, NY, pp. 331.
B. Joseph Ellin
I This case involves a
violation of environmental regulations which may be more 'technical' than
real. Wolfog
Co is faced with $200,000 unnecessary expenses to prevent small excess
omissions which are not believed to be harmful to anyone but a few fish. The obvious course here is for Wolfog to apply to the DNR for a variance. Their lawyers can try to convince the DNR
that the slight excess poses little danger.
If they don't get the variance, they'll have to conform, or go to court;
though all this will probably cost Wolfog more than
the cost of compliance.
However there's nothing to be
done on an individual basis. Manager
Edgar Owens should not expect engineer marvin
to 'adjust' the data and Marvin shouldn't do it. Edgar's reasoning is self-serving:if he's worried about image and tourism he should
comply with the regulations. It may well
be true that if Wolfog has to spend the $200,000
which they can't afford, they're in trouble, but the answer, if there is an
answer, is not to fake data.
II This might be one of those cases in which most people are better off if the
law is violated rather than obeyed. Such
situations are probably more common than realized. It's not the discharge itself which does any
harm, but the fact that it's not in conformity to the regulations, because this
creates the image problem and scares away the tourists. This obviously makes an excellent case for
loosening the regulations: regulations should not be more onerous than
necessary to achieve their purpose. The
more people who have a stake in economic development, the more likely is this case to be heard by the authorities.
III Whether Deborah, the DNR water quality engineer, would agree that the
violation is a 'mere technicality,' depends on Deborah. We don't know enough about her; if she's a
radical environmentalist, she thinks zero dead fish is the only tolerable
condition, and no cost is too great to achieve it. She also may think there is no such thing as
a technical violation: a violation is a violation,may be her enforcement motto. One might take the view that if she thinks
this, she shouldn't be in her position, but perhaps her boss thinks so too.
Perhaps this is the motto of the entire DNR, which if it is shows something
about the irrationality we've gotten ourselves into.
IV Would the parents agree that the violation is merely technical? Probably not; the local parents have been
whipped up by the environmentalists and the media to think that any drop of
anything is dangerous. They want jobs,
economic progress, low taxes, low prices, and a pristine environment as well,
(who doesn't?) and they are not wiling or able to understand the issues
involved. And they vote.
V So given this hypothetical gloomy situation,
is the over-all best solution that Marvin should just fake the data? One might make such an argument from a narrow
act utilitarian point of view, but for all sorts of reasons including
long-range utility it isn't right for anyone to submit a fake report, so the
question whether everyone might do so is purely hypothetical. Another question would be, if it's right to
grant a variance to Wolfog, is it right to grant a
variance to every plant? And the answer
would be yes, which is not an argument not to grant the variance to Wolfog, unless there is a comparable compelling reason at
the other industries (for example, it might not cost everybody $200,000 to
clean up). If there is, then the DNR is within its rights in denying the
variance. If all the factories together
produce a total discharge that is dangerous, the situation changes by that
fact. But if there are
no other plants in Wolfog's situation, then the
so-called principle of universalizability should not
be used as an excuse to impose hardships on one firm without any compensating
gain for anyone except the few fish.
VI Marvin shouldn't fake the data. The rest is up to the people at Wolfog.
__________________________________________________
Ethics Case Study - Borrowed Tools and Lying
(a lie is a false statement
or action made with the intent to deceive)
XYZ Corporation permits its
employees to borrow company tools.
Senior engineer Al House took full advantage of this privilege. He went one step further and ordered tools
for his unit that would be useful for his home building projects even though
they were of no significant use to his unit at XYZ. Junior engineer Michael Green had suspected
for some time that Al was ordering tools for personal rather than company use,
but he had no unambiguous evidence until he overheard a revealing conversation
between Al and Bob Deal, a contract salesman from whom Al frequently purchased
tools.
Michael was reluctant to
directly confront Al. They had never
gotten along well, and Al was a senior engineer who wielded a great deal of power
over Michael in their unit. Michael was
also reluctant to discuss the matter with the chief engineer of their unit, in
whom he had little confidence or trust.
Eventually Michael decided to
talk with the Contract Procurement Agent, whose immediate response was,
"This really stinks." The
Contract Procurement Agent agreed not to reveal that Michael had talked with him. He then called the chief engineer, indicating
only that a reliable source had informed him about Al House's inappropriate
purchases. In turn, the chief engineer
confronted Al. Finally, Al House
directly confronted each of the engineers in his unit he thought might have
"ratted" on him. When Al questioned
Michael, Michael denied any knowledge of what took place.
Later Michael explained to
his wife, "I was forced to lie. I told Al, 'I don't know anything about
this'."
Discuss the ethical issues this case raises.
Commentaries
A. W. Gale
Cutler
In the publication
"Common Sense and Everyday Ethics" (American Viewpoint, Inc., 1980)
there is an interesting quote:
There is no such animal as an
absolutely honest human being, and there is no perfect society. For whatever reasons, however, it does seem
that it is the compelling destiny of man to seek survival. In the process of trying to survive under
increasingly complicated demands and responsibilities, both individual man and
society as a whole must strive toward perfection or slide toward destruction.
In this case senior engineer
Al cheats his company by ordering tools for his own use, junior engineer
Michael fears Al's management power over him and takes a devious route to
disclose Al's dishonesty rather than confronting Al directly, and then he lies
about having disclosed Al's dishonesty.
Lying (a lie is a false
statement or action made with the intent to deceive) is an omnipresent social
disease that may be endured in mild forms, but at advanced and epidemic stages
can erupt to destroy the foundations of a free society. Today many people do not consider lying
dishonest!! To them the threshold of
dishonesty begins with stealing. A
significant number do not even consider stealing very dishonest, may not at all
when one steals from big businesses (a large manufacturing plant, a major
insurance company, a utility, etc.).
Some people feel so impersonally toward big businsess
that they donot think of a big corporation as having
any particular ownership.
The government doesn't fare
any better. The honor system of paying
one's proper taxes is now eroding.
Unreported earnings from cash income taken in by various industries,
services and individuals have been estimated at several hundred billion dollars
annually. This type of lyng isn't just a harmless social habit that can be
tolerated ethically and morally--it's a decline in society's honesty.
People will claim that they
lie because they do not wish to hurt someone by telling the truth. The inescapable conclusion of this type of
thinking is that it is all right to lie anytime it
will benefit oneself or one's friend. What if everyone used this standard? Sooner or later you wouldn't be able to trust
anyone.
Doubtless there may be times
when it might seem preferable to lie rather than not lie, but if an individual
must lie to save his job, then he is working for the wrong person in the wrong
place.
In this case, Al is clearly
committing a wrong act in ordering tools for his own use and, when found out,
should be severely reprimanded or discharged.
Michael should either confront Al directly or when accused by Al of
"ratting" say clearly that he did "rat." If Michael has to live a lie to preserve his
job, he is working for the wrong person and the wrong company. Even if Michael lies to Al, it is probably
inevitable that Al will find out who told on him. Rather than live in dread of this, Michael
should face up to Al when asked if he "ratted" and hope that
management will back him in disclosing Al's wrongdoing. If management doesn't, Michael will simply
have learned that he is working for the wrong person and the wrong company.
B. John B.
Dilworth
This is an interesting case
because it brings out the almost hypnotic (and, I shall argue, in this case
myopically misdirected) power of some moral concerns about lying. Conventional wisdom assumes that there is something
morally problematic about Michael's decision to lie when confronted by Al
House.
But such a view fails to look
at the full moral context of cases such as the present one. This is a case where illegal activity by a
person (senior engineer Al House) has been discovered. Knowing that he has been discovered, the
criminal perpetrator is clearly in a malicious, destructive frame of mind, and
is determined to 'get' whoever 'ratted' on him.
This is the moral framework in terms of which Michael's decision to lie
must be judged. Hence the real moral
issues here are those concerning malicious questioning, rather than any
concerning false answering.
Any other view of the matter
amounts to a form of the familiar 'blame the victim' syndrome. (For example, in many cases of wife-beating
and rape the woman ends up getting blamed as much, or even more so, than the
male criminal.) Criminals rip apart the
fabric of civilized life, directly or indirectly harming and twisting the
actions of everyone involved.
It is all too easy to
artificially abstract elements from such a situation and draw up a kind of
'laundry list' of morally problematic actions, which makes it look as if the
victims of the situation (including those who give evidence to the proper
authorities, or have to handle confrontations with the criminal) bear some some kind of moral guilt comparable to that of the
perpetrator(s). We must resist this
temptation to indulge in abstract theorizing, disconnected from the realities
of actual situations.
This is not to say that
victimized people are free to do anything whatsoever to cope with their
traumatic situations. But it is to say that their actions must be judged in the
specific context of the real and potential actions of the criminal(s) involved.
In the present case, there
are two aspects of Al's malicious questioning which are relevant to deciding
that it is perfectly legitimate in this case for Michael to lie to Al. First,
Al has no right to know who reported him.
As a general matter of business policy, those reporting problems or
abuses are entitled to confidentiality, and they should especially be protected
from those who caused the abuses. Hence
Michael is under no obligation whatsoever to tell Al that it was he, Michael,
who reported Al.
It might be thought then that
Michael should simply refuse to tell Al whether he, Michael, had reported Al or
not. But in this special case, a refusal
to supply information would itself amount to a giving of the same
information. This is for the obvious
reason that Al would instantly guess why Michael was refusing to directly admit
or deny that he was the informant, namely because he really was the imformant!
Thus in this special case,
lying is justified as the only effective method for withholding information,
which information one has every right to withhold.
So far we have made no use of
the fact that Al's questioning is done with malice in mind. This provides us with a second, independent
line of defence of lying as a defensive strategy
against malicious questioning. Even
those who generally criticize lying as wrong in principle are likely to admit
some cases when it is justified, such as for instance to protect innocent
life. In the case of a murderer
demanding that you tell him the whereabouts of his next victim, lying may even
be morally obligatory. But if we concede
this, then should we not also concede a group of related cases, in which other
kinds of malicious questioning are involved, including the present case? If someone clearly intends to cause some harm
to someone, if told the truth, is it not at least morally permissible (even if
not obligatory) to lie to prevent the harm from occurring?
Here again it is tempting to
treat the lying in abstraction from the actual situation, such as in a claim
that Michael's lying is morally problematic because he has self-interested
reasons for doing it. But in the context
of malicious questioning, all that matters is whether someone is likely to get
hurt in some way unless one lies. Surely
we have a moral duty to prevent harm to innocent people, even if it is we
ourselves who are those innocent people.
So in a case such as this it is simply irrelevant whether the lying also
serves self-interest.
Finally, a few words on the
amount and severity of the harm that someone might be subjected to, who did not
lie in the given situation. It is easy to assume that only embarrassment and
'bad feeling' would result from telling the truth. But the harsh truth is that in the real
world, anyone caught doing something illegal or seriously compromising is
liable to behave in vicious, unpredictable ways towards their accusers. Long-term revenge plots are a fact of life in
our culture also. Hence victims are
fully justified in misleading such criminals as necessary.
C. Joseph Ellin
Like many engineers written
up in ethics cases, junior engineer Michael Green spends some of his time
listening in on other people's conversations.
These informal investigations never prove fruitless; Michael learns that
Al House is abusing his company privilege of borrowing tools.
Al is far senior to Mike and
Mike won't confront him directly. So he
does the right thing and reports the abuse to proper authority. Al is not impressed by Mike's loyalty to the
company and decides to determine who the stoolie is. He asks everybody directly which one 'ratted'
on him.
Obviously XYZ company has walked into this by allowing Al to cross examine
his subordinates. Evidently XYZ is not
able to deal effectively with this abuse of policy. Al's boss should have made it clear to Al
that the identity of the person who 'ratted' was confidential company
information that he was not to attempt to find out; presumably Al is in enough
hot water already not to want to disobey this order. And the other engineers in Al's unit should
have been notified not to cooperate with Al if he should try to question them.
Is XYZ company
really interested in preventing abuse of privileges? If they are, Michael would seem pretty secure
in simply admitting to Al that it was he who turned him in. What can Al do about it, since presumably
Michael is protected by Al's superiors?
Any retaliation Al takes against Michael can be reported, and Al gets
into deeper trouble. But if this seems too risky to Michael, he can refuse to
answer, telling Al that he doesn't think it's an appropriate question to be put
to a fellow engineer (which it isn't).
Al can draw his own conclusions, but since he's clever enough to figure
out that one of the other engineers in the unit might have turned him in and
then lied about it, Michael's refusal to answer might not only protect Mike
from Al's retaliation but might earn him a couple of points in Al's mind as
someone who can't be easily intimidated.
Meanwhile Michael should report Al's attempt at intimidation and make it
clear that he expects XYZ to protect him if Al should retaliate. Michael is actually in the stronger position
here and should make use of his advantage.
Instead, Michael lies to Al.
There are cases in which lying is the only way out, but this doesn't seem to be
one of them.
D. C.E. Harris
Lying is not always
wrong. If a deranged person wielding a
knife asks me where Johnny is, indicating his intention to kill Johnny, I have
every right (even an obligation) to lie to the deranged person. Lying to
protect an innocent person is often morally permissible. The present case, however, is not a paradigm
case of lying to protect the innocent, because the motive of self-interest is
present. Furthermore, there might be a
value to the company and an intrinsic moral value in setting an example of one
who is willing to publicly take the responsibility for preventing the
continuation of an action that seems clearly wrong. There is a virtue in publicly facing up to wrongdoing.
Many companies have
established procedures for reporting wrongdoing that allow the reporter to
remain anonymous. If Michael's company had such a system and he had used it, he
might have still felt that he should have had the courage to confront Al, but he
probably would have felt much more comfortable about remaining anonymous. This
is because anonymity would have been accepted as a legitimate aspect of
reporting wrongdoing. However, Michael would still have been forced to lie to
preserve his anonymity.
We have two basic approaches,
then, to resolving the dilemma that Michael faces. One approach is to report Al's wrongdoing but
to remain anonymous, even at the cost of lying.
This solution of the problem has the virtue of both stopping the
wrongdoing and protecting an innocent person, namely himself, from unjust
retribution. The disadvantage is that
this approach involves telling a lie.
The other approach, confronting Al openly, has the advantage of avoiding
the lie and exhibiting the virtue of open confrontation of wrongdoing, but the
disadvantage of jeopardizing Michael's position in the company.
There are at least four
crucial factual questions in this problem.
First, Michael should attempt to assess just how severe Al's retribution
against him might be. Would Michael lose
his job or forego any further advancement?
Could Michael get assurance that he will be protected against Al's
recrimination? Second, Michael should
attempt to assess how much sense of guilt or self-recrimination he would
undergo if he lies to Al. He might feel
that he has been cowardly in not confronting Al "like a man," even if
he can justify the action morally.
Third, Michael should attempt to assess the likelihood of Al's finding
out that Michael informed the Contract Procurement Agent of his
wrongdoing. If Al is likely to find out
about Michael's action anyhow, then Michael might as well inform Al
himself. The answers to these factual
questions would probably be decisive in determining which of the two alternatives
outlined above is most desirable.
E. Neil R. Luebke
The main issue in "Borrowed Tools" is
internal whistleblowing. As I see it,
the nasty turn this case takes near the end is not so much a result of
something that Michael did but, rather, a result of the actions of the contract
procurement agent.
Let us first look at this
situation from the point of view of the XYZ Corporation. Al House is certainly
abusing XYZ's generous policy concerning the
borrowing of company tools. Assuming
these tools could not be used for any company project but are rather used only
for his personal ends, if confronted by an officer of the corporation such as
the contract procurement agent, Al would have a great deal of difficulty in
explaining his orders. We do not know
how widespread in the corporation is the kind of abuse that
Al engages in. Al himself seems to have little reluctance in allowing
other people to know of his activities.
Apparently Bob Deal, the contract salesman, knows about it. Al's
confronting the other engineers he works with suggests that they are also in a
position to know about his activities.
The chief engineer of the unit and the contract procurement agent,
however, seem not to know. We do not
know the dollar value of Al's orders over the period of time, but we can assume
that by now they probably total several hundred dollars .
There is no doubt Al is using company resources for his own purposes--in
effect, stealing from the company--and his actions are, accordingly, immoral
and possibly illegal. Al's actions are similar in some ways to those of a bank
teller who takes home a few bills from time to time to help his own financial
assets or a salesman in a men's store who might take a shirt or a tie on
occasion for his own wardrobe. Al, of
course, does not keep the tools as his own; he merely "uses" them. In
these latter two cases, it is difficult to imagine that, when the thieving
party is confronted by the evidence, the person would insist on knowing what
co-workers had "ratted" on him.
By contrast, no one in our
story seems to focus on evidence. Michael had suspicions, and his suspicions
seemed to be confirmed only by an overheard conversation. The contract procurement agent does not seem
to respond with an investigation of the record but repeats the assertion to the
chief engineer. The chief engineer does
not investigate but simply confronts Al with this transmitted piece of
testimony. As the message reaches Al, it
has the distinct form of an accusation made by a co-worker rather than as a
charge of wrongdoing made by a company officer.
This unfortunate handling of
the problem seems to be symptomatic of a number of things that are unfortunate
about the XYZ Corporation. For one
thing, there do not seem to be appropriate personnel relationships or corporate
"climate." Al and Michael do not get along; Michael has little
confidence or trust in the chief engineer; both Al House and the contract
salesman Bob Deal seem to think it is acceptable to steal from the company;
both the contract procurement agent and the chief engineer seem to be more
concerned with passing along an interesting story than in investigating the
facts; and, finally, Michael, although he tells what he thinks is the truth,
feels so insecure regarding his position in the company that he easily lies.
Although the immediate issue
in this case is internal whistleblowing, the larger
issue is about the corporate climate, communications, and policies
involved. Let us consider alternative
actions at some of the junctures in this story.
The first juncture is when Michael's suspicions regarding Al House's
activities are, at least in his own mind, confirmed by overhearing the
conversation. What should he do
now? Were he to confront Al, Al would
probably claim that the tools were going to be used on some future project even
if they did not have an immediate use, or else he might say, "Michael, you
don't know what you're talking about!"
Before Michael goes any further, he should make sure that Al House is
ordering tools for which there is not, nor will be, any use within the
company. In other words, Michael needs
more than just his own impressions. Even
though Michael seems to think the chief engineer is not a person of trust, he
might very well be. Michael might, in
some nonaccusatory manner, try to investigate
concerning the type of order that Al was placing. He need not start out by naming Al; rather,
he might ask the chief engineer whether ordering such and such a tool would be
appropriate for the activities of their unit.
In addition, there are other persons Michael might talk to for guidance,
either his fellow workers or one of the officers of the local engineering
society.
Let us suppose through one
route or another Michael does come to talk with the contract procurement agent.
By the time he discusses the matter with the agent, he ought to have more than
a set of suspicions to back up his serious accusations. Because the contract
procurement agent has access to records that perhaps Michael does not, the
agent should investigate those records to find out whether the kind of abuse
that Michael is describing has actually taken place over a period of time. The contract procurement agent could then
meet with the chief engineer to go over the record of tool orders. There is no reason for the contract
procurement agent to reveal that Michael or anyone else talked to him about a
specific individual. The agent's job is
not to convey an accusation but to see whether abuses have taken place. If, as
a matter of record, it can be shown that abuse has taken place and that Al
House has been the principal party bringing about the abuse, then the job falls
to the chief engineer to decide what to do regarding Al. At this point, the chief engineer is not
merely passing along a suspicion by some fellow worker; the chief engineer is
confronting Al with what seems to be a violation of company policy. Unless this task is undertaken by some other
administrator, it is the chief engineer's responsibility to present Al with his
alternatives. Al could claim innocence and want to have protection to show that
he was innocent. Or, even if Al did the
abusive acts, company policy might permit him to get off with restitution of
costs plus a letter of reprimand in his file.
At worst, Al might be threatened with legal action and with termination.
Finally, let us suppose the
scenario goes as it does to the point of Michael being confronted by Al's
charge of having ratted on him. As
intimidating as Al probably is, Michael could take the offensive, responding to
Al's charge of having ratted on him with a line such as, "Well, Al, did
you do it? Did you order the tools for your own use?" If Al protests strongly that he did not,
Michael may at this point wish that he had developed a better-substantiated
case. Or Al could say, "Well, yes,
of course I did, but everybody does it!" Michael could then respond,
"That doesn't make it right, Al!" And he could continue with
something like the following: "Look, Al, at this point it doesn't make any
difference who or what led the company to find out what you're doing. As I see it, you're in serious trouble! If I
were you, I wouldn't waste your time talking to us. You probably ought to talk to the chief
engineer or someone else in the company to find out how to save your job!"
More than anything else, this
case illustrates the need for companies to be concerned with relationships
among their people and with the effect of corporate policies and actions on the
loyalty of those employees. If the company had an ombudsman or a clearer policy
regarding internal whistleblowing, Michael might not
have gone forward in such a disorganized and later fearful manner. If there had been more concern on the part of
company officials with the facts rather than the personality gossip, the story
might have proceeded in a better fashion.
One final comment is in
order. As a number of writers have asserted [for example, Richard DeGeorge in Business Ethics (New York: Macmillan, 3rd ed.,
1990), pp. 212-213; or Ronald Duska in DesJardins and McCall, Contemporary Issues in Business
Ethics (Belmont, California: Wadsworth, 2nd ed., 1990), p. 146], we are not
usually required to be self-sacrificial moral heroes in whistleblowing
cases. Richard DeGeorge
claims that one necessary condition for whistleblowing
to be morally obligatory, rather than merely morally permissible, is a good
reason to believe the act of whistleblowing will
result in appropriate and successful corrective action. There is little in
"Borrowed Tools" to confirm this condition.
E. Wade L.
Robison
It is wrong for Al House to
order tools that had "no significant use" for his unit at XYZ in
order to use them on his own home building projects. That, presumably, is a
given. He is cheating the company just as surely as if he dipped into the cash
drawers and took out whatever money he needed in order to purchase the tools
for himself. The only possible benefit of cheating the company as he did was
that other employees might also borrow the tools, and they would thus be benefitted in a way that they would not be if Al were to
steal the money to buy the tools for himself.
The moral issue concerns what
one ought to do when one knows that someone is stealing from the company for
which one works. The complications arise because the person doing the stealing
is in some position of power over the person aware of the cheating and because
the one person within the same unit who could be talked to is thought
unreliable and untrustworthy.
Michael Green, who knows of
the cheating, is unwilling to confront Al House or inform the chief engineer.
It is not obvious that either position is morally defensible or otherwise
appropriate. Consider the chief engineer first. When Michael Green went to the
Contract Procurement Agent, the latter talked to the chief engineer who then
confronted Al. It may be that Michael thought that if he went to the chief
engineer, nothing would happen and that it is the Procurement Agent's having
talked to the chief engineer that made a difference. Or it may be that Michael
thought that the chief engineer would tell Al that it was Michael who
"ratted." In any event, from how things worked out, it looks as
though all Michael had to worry about was having the chief engineer
tell--since, in fact, the chief engineer did confront Al when informed of the
problem. He did what he needed to do, that is. And Michael could have given him
a chance to do that without seeing the Procurement Agent. If the chief engineer
refused to act because it was Michael telling him rather than someone outside
the unit, or higher up, then it would be time enough for Michael to go to the
Procurement Agent--after informing the chief engineer that that is what he
would do.
As it is, Michael has
effectively informed the Procurement Agent--by the act of going to him
first--that he does not trust anyone in power within his unit. He has also
effectively informed the Agent, by asking him not to inform Al House who has told, that he expects Al to be vindictive. So he has passed
on to someone outside the unit negative judgments both about Al's character--he
is vindictive as well as someone willing to steal from the company--and about
the chief engineer's character.
In addition, the result of
Michael's not confronting Al up front, or telling the chief engineer and giving
permission that he be named as the person who knows
what is going on and is willing to talk about it, is that everyone in the unit
has to confront Al House and be questioned about what he did. The effect of
that sort of confrontation is, among other things, that everyone will know both
that Al has stolen from the company, that Al suspects that someone in the unit
knows, and that whoever knows is not willing to come forward to be identified.
But what were Michael's
options? If he confronted Al, then what would the result be?
Even if Al then and there ceased to order tools for his own use, his past
misconduct would go unpunished, and Michael would risk putting his own position
at some risk--at least insofar as what he did depended upon Al. So confronting
Al puts Michael in an awkward position and does not seem to solve the essential
problem. What, for instance, is to prevent Al from doing the same sort of thing
again, this time somewhat more discreetly, making sure that whatever he orders
bears some, however little, relationship to his unit's needs?
What is problematic about the
case is that Michael faces such choices. One ought not to arrange matters in
such a way as to presume that anyone is likely to cause harm to the company or any
of its employees, but matters ought to be arranged so that if someone does,
then an effective means of rectifying the situation exists so that neither the
person bringing the complaint nor the person against whom the complaint is
brought risk being treated unfairly. One needs evidence to make an accusation,
but the person accused needs a chance to rebut the evidence, give, that is,
their side of the story.
Having an ombudsman would
help in such a situation--someone outside any particular unit of a company
whose job it is to listen to concerns about such issues as that facing Michael.
Such a person would presumably be committed to strict confidentiality, but also
be committed to taking any accusation seriously enough to pursue it, to find
out whether there is evidence that it is true and then, if there is, to see to
whatever needs to be done given the truth of the accusation.
In short, what is morally
problematic in the case in question is something structural within the company,
namely, that Michael has so few options available to him when he wants to do
what is right. Someone who is concerned to see that the company they work for
is not cheated should not have to risk such harm in order to initiate whatever
is necessary to rectify matters. One does not want to encourage reckless
accusations, made without evidence, but one also does not want a structure that
unnecessarily discourages those who would to help the company and/or its
employees from being harmed by someone within the company.
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