AIDs and Needles - Assignment Example

 One of the major issues of rights that complicates ethical discussions is the issue of resources. It's all well and good when the issue is the right to speak freely, or to practice ones' religion: While certainly there has been much fighting and conflict over these issues, in the modern era most people can probably agree at least in theory that people should be free to speak their mind, say controversial things and practice religion freely. But when the issue becomes about access to resources, distribution of wealth and other economic matters, people are far less likely to accept the logic of rights. The focuses on Kantian ethics, utilitarianism and distributive justice begin to conflict with the ideas of rights when it comes to economic matters. This is the salient issue for Rockwood's suit against Becton Dickinson: The distinction between rights and responsibilities. Case Facts Rockwood's suit against Dickinson has a long history, but the issue is simple. Dickinson did not create a wide enough range of sizes for their patented product, causing hospitals to instead embrace unsafe practices with needlepricking instead of the Dickinson safety syringe. Rockwood alleges that doing so led directly and predictably to injury. The legal issues behind this are obviously complex, but the ethical issues are possible to discuss. The assumptions behind the allegation of Dickinsons' liability are clear. Ethical Issues Issues at stake here are 1. Public health. It's not just that Rockwood got sick, but she got sick with a communicable disease. 2. Corporate strategy. Corporations need to pursue a wide range of strategies in the marketplace without fear of eventual suing simply because they didn't offer a product. 3. The bounds of the law. Law should only be able to go so far in legislating morality. Ethical Dilemma Should the Court violate Dickinson's potential right to pursue their product array as they see fit, or should they take them to task for failing to protect Rockwood? Analysis A rights-based analysis would deliver differing opinions depending on the rights they enshrine. Someone emphasizing rights to life, health or responsible treatment might argue that Rockwood not only has a right to pursue a suit and receive compensation but also an obligation to do so. But many rights-based analyses such as market libertarians' analyses would emphasize the rights of the company to provide the services they wish. Advocates like Milton Friedman, Nozick and Murray Rothbard would argue that Dickinson had made a calculation, even if misguided or potentially immoral or callous, that they would not provide the services and goods they created with their own hard work in a particular fashion. This is their inviolable right, in this view, and thus they cannot be sued or brought to task legally in any fashion. Dickinson was satisfying their only obligation worth discussing: The obligation to their shareholders. Under this view, an individual has absolute control over their labor and property. Whatever they made under conditions of justice (e.g. no theft, fraud or embezzlement) is theirs. Dickinson had no responsibility to provide a different product. It is absurd to take them to court for not providing a product! They did no wrong and in fact performed their duty: Enlarging market share for shareholders. A utilitarian analysis, on the other hand, would point out that what Dickinson did was not in the interest of the greatest good for the greatest number. Dickinson had no compelling reason: They could have made more money by providing their safety needles in different sizes. The court should rule in the favor of Rockwood, in the utilitarian view, as a matter of social policy and justice: What Dickinson did was unethical and inappropriate. A utilitarian might end up admitting that, under the law, Rockwood had no case, but still argue that Dickinson had committed wrong. Distributive justice is concerned with the distribution of goods across society in order to establish justice. Distributive justice would argue that Rockwood's case is strong and based in justice. Dickinson's high amount of capital and wealth, their success, required them at the very least to responsibility to the community. They had to consider what their offerings would be and what impact those offerings would have on the real world. Dickinson failed to do so, despite clear information from hospitals that their offerings were inadequate. All Dickinson had to do was license their technology. They had an obligation to do so due to the distribution of justice and social goods. Distributive justice in particular, alongside utilitarian advocates, would argue that there was a right to proper medical care. Society needed to provide Rockwood the best care they could, and it failed at doing so thanks to Dickinson. Dickinson had a social responsibility that they failed to fulfill: They should be taken to task for their responsibilities. Kantian ethics, on the other hand, would be more complex. Kantians would argue that the essence of the deed, not its consequences, must be analyzed to determine if the act was wrong. It is hard to say that, in and of itself, failing to offer a service is actually wrong. It is hard to say that Dickinson had failed to fulfill any obligations. However, Kantians might also note that Dickinson cannot claim that they could not anticipate Rockwood's injury. Dickinson's deeds need to be analyzed not based on eventual, complex, debatable consequences but the innate quality, and Dickinson had not provided a service out of whatever motive: Greed or profit-seeking. These are not good intents. Kantian ethics focuses far more on the intents of the person and whether or not the deed, if universalized, could be made logical. If everyone behaved and intended like Dickinson, society would collapse. But Kantians might argue that court-based remedy is wrong. Dickinson did something wrong, yes, but so does someone who insults someone else or yells racist epithets, yet those people should not be imprisoned or given legal consequences. A Kantian might argue that what Dickinson did was wrong, but to punish them legally would be just as wrong. There is a sharp divide between what is wrong and what is illegal, and as repelled as we might be by Dickinson's callousness and failure, they are not legally liable. Recommendations and Conclusion Ultimately, then, all but market libertarian-right analysts would argue that what Dickinson did was wrong. But what should be done to Dickinson is another question entirely. Seeking redress for wrongs is difficult, and another level of analysis beyond the simple recommendations of CSR. Nonetheless, my recommendation would be for the court to hold Dickinson accountable. It was their monopoly power granted by society, specifically patents and intellectual property, that let them not provide adequate protection. Corporations need to realize that they are empowered by society and thus have obligations to it. Dickinson needed to anticipate the needs of the medical and general communities, and they callously did not do so. They should share their part of the blame. However, I think the judgment should be deferred if Dickinson meets with an organisation approved by plaintiff and defendant for implementation of a better product line. This avoids government overreach. Section #2: McKinstry One issue in the development of CSR is attempting to accommodate the rights and needs of individual workers. Whistleblowers are less likely to emerge if they view their company as an equal partner in making difficult moral decisions rather than callous opportunists, opponents to be unmasked. Even if potential whistleblowers disagree with the company, they may be willing to work with and compromise with the firm. This is far less likely if the company is perceived as cruel and callous. In this view, the prevailing four ethical frameworks for CSR tend to concur with Ms. Schafer's position and advise that the company protect her private ethical decisions. Case Facts A company that McKinstry contracts advertising to has developed radar and laser detectors that can be used to detect police scanning and reduce speed, thereby getting away with speeding in non-covered areas. Ms. Schafer, an executive, refuses to work on this project, as it is unethical in her view because it can lead to increased lawbreaking and a direct increase in accidents and therefore fatalities. Ethical Issues There are some basic issues of fact. While it is in fact difficult to say that speeding is the only cause of crashes, or even the major one, it is certainly a leading cause of crashes. One can also factor in inebriation, driving skill and training, the quality of the vehicle, weather conditions, and any number of other factors, but the simple, intuitive fact remains true: People who speed are more likely to get into accidents, and providing people with a way of avoiding speeding therefore is likely to increase the rate of accidents. Further, while it is certainly true that people may not have illegal reasons to purchase the product or intend to use it illegally, many will, and the company needs to take that into account. The technology might be dual-use... but if that's the case, why sell consumer laser and radar detectors at all? Why not sell ones that cannot be used easily for the purpose of evading detection by law enforcement? It is also true that the company is undoubtedly going to craft a disclaimer and strongly advise customers against using the product to evade detection. But they still need to be aware of and ready for the potential and near-certainty of abuse. And it is true that McKinstry is only promoting the product, not selling it... but promotion is a key part of selling, and this is transparent buck passing. McKinstry is responsible for more units sold of this product if it is dangerous. Ethical Dilemma Given the above, does the company have the greater responsibility to society, or to their customer and shareholders? Analysis Kantian theorists would point out that there is nothing wrong, per se, with offering a product that might lead to unsafe behavior. Universalizing this act does not lead to moral, social or logical absurdity. But, again, intent must be analyzed carefully. The company is considering selling or promoting this product with woeful disregard for the likely consequences. Further, Kantian theorists would remind us that, even if no more accidents were associated with the product, that would be irrelevant as a consequentialist analysis. The intent of the product is clearly largely to avoid detection, and this is wrong. Kantian theorists would argue that violating the law by speeding is wrong and that trying to cover up this behavior is also wrong. If people all sped, the highways would be dangerous and the fragile social contract around transportation would be threatened. And if people all were able to avoid detection by police, murderers and thieves would go free and law wouldn't matter. Therefore, it is wrong to buy a laser or radar detector, no matter what justifications or rationalizations are offered, and it is wrong to suborn that behavior. Rights theorists might argue that consumers have the right to decide for themselves what to do. Schafer is being paternalistic: She is assuming that they don't have the right, ability or maturity to understand how to use the product responsibly and legally. How does she know that they don't have some legitimate reason to avoid detection by traffic police? In any respect, it is not the companies' responsibility to not promote to people or to take culpability for their decisions. They are just supposed to make profit for investors. Even a slightly more progressive rights theorist might point out that the more options people have, the better. Why not tell them about this product? Why not give them the opportunity to decide for themselves? Information can't be bad, under this view. Then again, there is also a communal right to safety. And since transportation involves so much political, economic and other forms of coordination, it is absurd to say that there is no reason for legal intervention. Libertarians always concur that security is one of the justifications for state intervention, whether it be police or military security. Evading the police for legitimate laws that do not violate human rights is wrong. Further, rights analysts would point out that Schafer has the right not to do something that she views is wrong. True, the company has the right not to contract with McKinstry, and McKinstry might have the right to fire Schafer, but they shouldn't. It is not good behavior to fire someone for their honest moral problems and disagreement: It encourages whistleblowing and adversariality. Utilitarian calculations would be very simple. Giving people the ability to avoid detection for traffic violations leads to harm for the many. In fact, utilitarian calculations are ideal for the roadways and highways. On the highways, one anti-social individual going the wrong way or even failing to turn on a turn signal is threatening everyone else. Hundreds can be imperiled because of the decision of the one. Don't they have rights? Thus, utilitarians would argue that McKinstry should back Schafer. Finally, distributive justice theorists would argue that the right to evade traffic violations should not be distributed unevenly based on class. One of the consequences of this decision to promote the product is to give some people the ability to undermine the law and not others. This is wrong too. Further, to improve coverage so that there was no area where laser and radar detection did not overlap would be expensive. Conclusion Ultimately, rights theorists would argue that, in any respect, backing Schafer is the right thing to do. The company should be loyal to its employees and not ask them to imperil their own common sense and ethics. Here, ethics and good business intersect. Section #3: Short Essay Questions 1. CSR is a contentious topic, but a generally accepted definition might be, “Corporate self-regulation aimed at fulfilling ethical responsibilities and achieving ethical goals for the community”. Friedman's perspective on CSR is simple: Companies have the obligation to give the greatest return to shareholders. His argument is that the market is an efficient decentralized institution, and that if people pursue their own best interest, a Smithian harmony of interest emerges. It is actually self-destructive and collectivist to embrace CSR. Meanwhile, Freeman argues that companies actually have interests in an increasingly integrated economy besides satisfying their stockholders' need. The Kew Gardens Principle emerged from the killing of Kitty Genovese and says that people must act if they see evil happening within their direct purview. The salient features are need, proximity, capability and last resort. 2. A “conflict of interest” is when a person has two interests that give them competing incentives, desires or obligations, usually based on two separate institutional relationships or social roles. For example: A Senator who holds stock in a company that is part of an industry his committee regulates has a clear conflict of interest. As a Senator, his duty is to impartially serve his constituents and fulfill campaign promises. But as an owner of stock, his incentive for his own private wealth is to build the value of the stock he holds. The Senator thus has an interest to do something perverse and against his occupational role and obligations: He has an interest to build the value of the stock by crafting policy that would be beneficial to the company in which he holds stock. Of course, conflicts of interest are difficult to ascertain. Does a pastor serving on an educational board have a conflict of interest because he might push religious solutions or advance the cause of his parish, or is there no conflict because this isn't necessarily harmful per se to the institution? While the Senator above has a clear conflict of interest, does every Senator have to divest every stock portfolio because they might eventually be able to influence those bills? Most Senators are rich. Does pro-rich social and economic policy lead to a conflict of interest? In a workforce, conflicts of interest clearly cause major ethical problems. If a manager hires their son, they have a vested interest in promoting that son over others. That isn't fair to other employees, who can work as hard as possible and not be promoted or receive a raise. Further, this violates a general social norm and ethic of the value of merit, institutional justice and equal opportunity to succeed. Violating this norm through this blatant kind of nepotism hurts the social norm and expectations, and can break a workplaces' psychological contract. 3. Presumably, it would be possible to avoid every case of food-borne illness in the sub-shop industry by putting workers into full hazmat suits. But this would be ludicrously expensive, uncomfortable for workers, and impractical in every way. “Acceptable risk” is a concept designed to avoid this difficulty and others like it. Legally, employers have a very high responsibility for injuries or other harm that occurs on their premises, in their workplaces or in job-related fashions or tasks. Obviously, if an employer has poisonous gas flowing into their workplace and fails to stop it, and their workers get ill or die, this is their responsibility. Acceptable risk, then, has two principles. 1. Maximum risk. If an entire workplace had poisonous gas with a high or near-certain likelihood of death, the workplace would have to be closed down or some kind of correction made for the risks, no matter the social benefits of the company or the wages offered. (Note that part of the idea is that workers can't volunteer to die or be made ill, no matter how much they are paid. Under this view, wages can be a type of coercion). 2. Extremely high value given to risk. Even when the risk is below the maximum allowable risk, acceptable risk still requires that the risks being taken are very low, benefits high and cost of avoidance unacceptably high. The Encyclopedia of Public Health defines acceptable risk operationally thusly: “The term "acceptable risk" describes the likelihood of an event whose probability of occurrence is small, whose consequences are so slight, or whose benefits (perceived or real) are so great, that individuals or groups in society are willing to take or be subjected to the risk that the event might occur. The concept of acceptable risk evolved partly from the realization that absolute safety is generally an unachievable goal, and that even very low exposures to certain toxic substances may confer some level of risk” Risk is determined by consulting with relevant social stakeholders to determine their preferences and desires. The ethical principle, “Do No Avoidable Harm”, guides this concept of acceptable risk. It is possible that a worker working near a grinder or machine with dangerous blades could fall in if they are not safe. If it was possible to design a safer mechanism that was not far more expensive, the company would still need to do so. But if the cost was far beyond plausibility and would raise the costs that customers face too much, then it would not be justifiable. Instead, the better approach would be worker safety lessons and better management. In general, companies need to not doing anything harmful that could be avoided, even if the cost of that avoidance is substantial and undercuts their profit margin. It is impracticality or impossibility, not inconvenience, that justifies limitation. In the above circumstance, if it would be easy to institute an automatic stop that would detect when a person fell in or got their limbs stuck, then it would have to be done, even if that would cut into the profit margin of the company substantially. The dividing lines aren't clear, of course, but one difference would be a lower margin of profit versus utter bankruptcy. 4. “Whistle-blowing” is where an employee finds that a practice of a company or organisation is unethical, illegal or otherwise deserves to be revealed to the public, and tells a reporter, the public, a regulatory agency, etc. One man's whistle-blower can be another man's muckraker: The difference between revealing confidential information, trade secrets, or national security information and revealing corporate fraud, espionage, malfeasance or deceptive and immoral political practices and policies. An example of clearly ethically justified whistle-blowing would be the discovery of embezzlement by ones' superiors. This is ethically and legally justified and required: The worker has a legal obligation to report illegal activity and a fiduciary requirement to expose the malfeasance to shareholders. The embezzlement is illegal, and thus management cannot defend their right to embezzle from the company. But it becomes less clear when the whistleblowing is more about private ethics or a belief as to what the public needs to know. Let us say that, during the build-up to the war against Iraq in 2002, an intelligence agent revealed an element of intelligence that was being arguably exaggerated. Doesn't the employer, in this case the national intelligence agency, have the right to determine what is exaggerated and what isn't? And what about political leadership? The question here is more complex because it is not so clear that the behavior the whistle-blower is exposing is illegal, and the question is more debatable as to what is right. A problem that emerges, then, is that an organisation that is not responsive internally to complaints and ethical issues by its employees provides them no alternative but to go public. A distinction is made between “external whistle-blowing” and “internal whistle-blowing” in the ethical literature. An employer needs to be receptive to the ethical needs and concerns of their employees. By allowing employees to discuss issues and find a way to seek redress for grievances, they provide employees more options than to leave the organisation entirely. There needs to be an independent ethical review board or auditor who provides means for workers to issue complaints. This lets the board consider what can be done without privileged information leaving the organisation. If embezzlement could be curtailed by firing the CEO, for example, it could avoid a catastrophe where the public image of the company is tarnished and the entire company's image is brought down for the actions of a few. The beauty of approaches like this is that an employee who will whistleblow still always has the option to do so, but the likelihood of it being needed o perceived as needed declines. 5. The four Ps (price, place, product and promotion) of marketing mixes might seem to be purely economic, but in fact all of them have ethical implications. Price can be put so high as to be exploitative. For example: A monopoly using their market control to raise the price of an essential good such as water, electricity or gasoline so high as to make people starve, die or go into poverty, lead to riots, etc. is using price exploitatively. Bechtel did this with the collaboration of corrupt local officials, leading to the Cochabamba riots (Palast, 2004). They engaged in water hoarding and price gouging through control of water supplies. This is unethical. Product offerings could also be unethical. Selling poison as cooking oil would be an obvious example, but this obviously is not terribly likely. More salient are selling unhealthy foods such as high-fat, high-sodium foods. Consumers do have the right to purchase what they wish, but producers need to bear in mind that not all consumers are equally informed. Promotion that amplifies or plays to racist, sexist, classist or heteronormative biases or objectified women could be unethical. Place of promotion could also be unethical: It is an accepted rule that promotion of adult content or cigarettes should not occur near schools or churches where children might play. 6. People have a right to informed consent. In the market, workers will arrive at an efficient equilibrium only if they are fully informed. If an employer is dishonest about the safety issues at a workplace, then workers will not be able to negotiate properly for wages, and employers will be rewarded for bad behavior. Employers must be absolutely honest or else the contract that workers make when they accept the position is fraudulent and unenforceable. 7. Privacy is a commonly accepted human right. But it is very difficult to reconcile privacy with the needs of a workplace. One meaningful definition of workplace privacy might be, “Employers do not have the right to interfere with workers' privacy outside of work duties and/or hours”. If an employer monitors an e-mail's content, for example, they might discover information they should not be privy to. Employers need to make sure that their monitoring is only for work: For example, when surveying e-mail, they need to inform workers prior to doing so, and make sure that they see only that the work is not work related, not what content it is. Further, there are some ethical requirements that might lead a worker to have to break the veil of the workplace: For example, to help a family member. 8. Notions of Kantian justice, rights, distributive justice and utilitarianism all agree that discrimination is negative to society. If people can discriminate based on race once, they can do so always and justify segregation. Further, discrimination violates the social norms and values of meritocracy and the idea that people are judged by the content of their character. And discrimination offends the utilitarian by leading to social institutions like racism. A functional discrimination is designed to tell the difference between really important skills and capabilities for work. For example: If someone is less qualified, then the company needs to take that into account, even with affirmative action. Diversity is also a value, and having a diverse or different background is an advantage. Dysfunctional discrimination, on the other hand, punishes people for irrelevant parts of their identity. Managers should learn about the communities they are dealing with and think about affirmative action not as a way to boost diversity, but rather to give good, qualified people a chance to prove themselves even though their apparent qualifications are lower. 9. A trade secret is a secret essential to the operation of a company, usually some proprietary technique or information about the companies' practices or strategies. But the financial information of a company is not a trade secret, even though it is also clearly important to a companies' performance, because they are responsible to communities and shareholders to show that they are investing properly. Similarly, trade secrets cannot protect illegal or fraudulent behavior. Employers should protect their trade secrets by classifying important information and carefully controlling access. This prevents the risk of trade secrets being seen by someone who might be tempted to reveal it. 10. Richardson and McCord discussed in 2000 the link between trust, ethics and performance in the marketplace. I personally view this link as terribly important. Most consumer goods require trust: It is impossible to be sure if a piece of meat is tainted in my sandwich. 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