Avoiding Unfair Conduct

One of the problems with interpreting the concepts of fairness and justice is that so many factors can go into the notion of a fair judgment. There is rarely one single result dictated by ethical analysis. Consequently, we often do not know what is truly fair. We do, however, often know what is unfair, and our first obligation is to avoid being unfair. Here are a few basic rules of unfairness.

It is unfair to make a judgment that favors or discriminates against individuals based on improper factors. Although many forms of improper discrimination are now against the law, they also offend our more basic ethical concept of fairness. It is simply unfair to deny someone a job or promotion because of race, religion, gender, or any other factor that does not have a material bearing on the ability to perform that job. (Judging a person by birth or beliefs rather than on character or merit is also profoundly disrespectful.)

The principle of fairness does not, however, preclude all forms of favoritism or negative discrimination. It is quite appropriate for me to favor my children, relatives, and friends in all manner of private transactions, including gift-giving, financial support, time, and love. In fact, in some situations it is a matter of loyalty to show extra consideration to these people.

Nepotism. In a family-owned business, nepotism often occurs. But is it fair? To those who are not related to the boss, fairness seems to dictate promotions based purely on performance and objective criteria. Such a standard might even be better for the business in the long run. Yet is it fair to deny the owners of a business the freedom to use criteria other than merit? For that matter, can they choose to do business with relatives or friends even though they might pay more than if they used a competitive bidding procedure? The critical factor is whose company it is. Just as one can set all kinds of arbitrary rules for one’s own house, the right of autonomy permits business owners to favor their children, relatives, or friends. Fairness does not require that all decisions put efficiency and profitability above other considerations. But honesty and fairness do require that there is no deception or pretension to the contrary. If I do not want to work in a family company knowing that opportunities for advancement are limited (unless I marry the boss’s daughter), I can choose to work elsewhere.

As a company becomes larger, however, it begins to take on the characteristics of a public institution and the demand for equality of opportunity is bound to be stronger. The need to maintain employee morale raises additional moral and practical considerations of non-merit based business decisions. The issue is entirely different, furthermore, when the decision-maker is not the sole owner of the company. A manager, even a corporate officer, owes primary loyalty to the employer to make all decisions objectively and on the merits, always pursuing the best interests of the organization. Here nepotism and other forms of favoritism violate the primary duty of loyalty and will rightly be perceived as unfair.

Legally Mandated Favoritism. A special category of fairness problems arises in relation to legally mandated or encouraged forms of favoritism. For instance, former military service adds points to one’s score on civil service exams. The general rationale for such “positive discrimination” is the goal of correcting historic patterns of discrimination that denied whole classes of individuals access to certain jobs. This denial of equal opportunity is the basis of remedial measures intended to achieve greater social justice. Affirmative action mandates also provide a legal lever to force organizations to eliminate any prejudices that may still affect hiring and promotion. It cannot be denied, however, that this concept of social justice authorizes specific instances of individual injustice. Favoritism for any group departs from a purely merit-based system and discriminates against those not in the favored group — ironically, just the sort of situation that unjustly prevailed in the past. From a fairness point of view, this is a no-win situation. To do nothing is to perpetuate injustice and, possibly, to condone it. Official reverse discrimination creates a new class of victims. In these cases, the prevailing theory of justice should be determined in a political context as a matter of social policy. That is what a democracy is best designed to do. This does not mean that a solution is fair simply because a majority of legislators say it is. It does, however, assure that the trade-offs involved in the ethical dilemma are made according to democratic procedures.

It is unfair to handle similar matters inconsistently. Inconsistency is a form of injustice. It is unfair for parents, teachers, employers, or others treat similarly situated individuals differently.

Consider the problem of household justice. Parents are constantly in the role of judges, benefactors, and disciplinarians. This places on them a heavy responsibility to be fair, both for its own sake and to serve as a model for the children. Inconsistency is a prevalent and morally debilitating parenting problem. As a result, children live in a Kafkaesque world where the things they are punished for doing vary from day to day. When Daddy is in a good mood, everything is tolerated with a smile. When he is in a bad mood, look out! The problem is that the kids don’t know what kind of mood Daddy is in until the hammer falls. This is an unjust system run by arbitrary power rather than rules with predictableconsequences. Unpredictability creates a neurotic, dysfunctional household dominated by the rules of chance. Just as it is the moral responsibility of courtroom judges to exercise self-discipline to overcome moods and dispositions, it is no less the responsibility of parents to treat their children fairly whether they have had a good or bad day.

Another problem of household inconsistency occurs when the parents have different standards. Children learn very early which parent to approach about which issues. This is a bigger problem in broken homes where children move from one household to another. Mom insists that the children do all their homework before they watch television; Dad is indifferent. Dad insists on lights out at 9:30.; Mom lets the children stay up until 11:00. Naturally, the children come to believe that the least lenient rule is always unfair. In general, parents should act as a unit when it comes to rules and expectations.

Finally, there is the problem of treating all children equally. Step-parents are not likely to love their step-children as they love their own biological children, but in their role as parent they must treat them equally. In short, do it like they did it in the Brady Bunch.

Inconsistencies also are a problem in schools. Young people shape their ideas of fairness in the context of widely divergent rules and enforcement policies from teachers and administrators. One teacher marks students tardy if they are not seated at the time the bell rings while another allows a few minutes’ leeway. In one class, cheating is a major offense. In another class, the teacher regards cheating as a minor infraction best dealt with by delivering warnings. This inconsistency teaches that it is not the rule but the ruler that really matters. It also means that some children are punished more severely than others for doing exactly the same thing.

More sophisticated inconsistencies occur in the workplace. Employees working for the same manager may be treated unevenly in identical situations. More commonly, employees who work for different managers within the same organization are treated inconsistently in relation to such matters as overtime pay, compensating time off, lateness, absenteeism, and expense reimbursement. Invariably, the employees who receive the least generous treatment believe that they are being treated unfairly. This belief is often used to justify get-even tactics, which undermine morale and policy.

One of the reasons this happens is that decision- makers think they are being consistent. They perceive differences in situations that either justify exceptions to the basic rule or make a different rule applicable. For example, a teacher may not allow a child an excused absence to go to the funeral of a friend of the child’s mother but will allow the excuse if the funeral is for a relative of the child. Obviously, there is a major difference. Yet often these differences are not always seen by others, and even when they are the observer may place different weight on the difference. The parent and child denied the excused absence are bound to resent the unfairness of the decision. Since both actual fairness and the perception of fairness are important, when it is reasonably possible to do so, extenuating factors should be explicitly acknowledged as part of the decision and, perhaps, even incorporated into a statement of policy so that the criteria of judgment are available to all.

It is unfair to impose punishment that is disproportionate to the offense. Once a judgment has been made to assign blame or impose punishment, the nature of the punishment must be determined according to principles of fairness and justice. Here the concept of proportionality is important. For example, we do not think it is fair to put someone in prison for a parking violation, nor do most of us approve of firing of an employee for making a harmless, one-time mistake. In Victor Hugo’s “Les Miserables,” the hero, Jean Valjean, was sentenced to a long prison term of hard labor for stealing food to feed a child. And that wasn’t all. The law also required him to carry papers indicating his criminality, which effectively guaranteed that he would remain a social outcast unable to earn an honest living. Was that a just punishment? If we believe that whatever the law mandates is by definition just, the answer is yes (and that, of course, that was precisely the position of the relentless inspector who hunted the hero throughout the novel). Based on thenotion of proportionality, however, the punishment should fit the crime. By any reasonable standard of proportionality, in terms of the harm caused and the motives for the theft, Monsieur Valjean’s crime called for less severe punishment. An unjust punishmentdiscredits a just law. In eighteenth-century England the penalty for any theft was hanging. Jurors of the time almost always acquitted because they believed that the penalty was unjust. Eventually, the law was changed and minor thefts were made misdemeanors with short prison terms.

The question of what is a just punishment is heavily influenced by cultural mores. It is still acceptable in some countries to cut off the right hand of a thief. In others, stoning is the penalty for adultery and caning for vandalism. This is an area where cultural relativism has significant force.

As a general guideline, effective punishment must demonstrate that we are serious about the offense. Two vital factors are the seriousness of the harm caused. Strict proportionality, an eye for an eye, that does not take into account motivation and other circumstances can be too severe or too lenient. For example, if a young boy accidentally blinds one eye of a playmate, would a just system blind the eye of the boy? On the other hand, if a wealthy man maliciously burns down another man’s house requiring him to buy the victim a new house seems to be inadequate punishment. In most situations, the strict “eye for an eye” standard is unworkable anyway. How does one apply it to a traffic violation, a lie, a rape or treason? The practical approach is to make the severity of the punishment match the severity of the crime so that our most severe punishments.

A second theory of proportionality relate to the principle of deterrence discussed earlier — punishment should be just severe enough to deter the average person from engaging in the conduct.

Finally, in determining what is just punishment, motives are important. Intentional and knowing behavior normally warrant more serious treatment than careless and unknowing behavior — mistakes are not as morally blameworthy as conscious, premeditated wrongdoing. In this context, it is appropriate to consider whether the person knew the rules and the potential sanctions ahead of time. Though “ignorance of the law is no excuse” in determining a person’s guilt, it can be a significant factor in determining the proper sanction. A new public employee who did not know that it was improper to accept a small thank you gift from a grateful citizen might be treated more leniently than a veteran who had every reason to know the rule.