Technology and Ethics: Privacy in the Workplace
A speech by Laura P. Hartman, Grainger Chair of Business Ethics,
University of Wisconsin-Madison [appointed after this speech as Asst. Vice
President of DePaul University].
Used with permission
About the Speaker
Laura P. Hartman is the Grainger Chair of Business Ethics at the
University of Wisconsin-Madison School of Business. She is responsible for
ethics integration in the graduate, executive and evening MBA business
Previously, Ms. Hartman directed the Institute for Business and
Professional Ethics at DePaul University. She held the Wicklander Chair in
Professional Ethics and was an associate professor of legal studies and
ethics at the university's Kellstadt Graduate School of Business, where
she won the DePaul Excellence in Teaching Award.
Privacy in the workplace is one of the more troubling personal and
professional issues of our time. But privacy cannot be adequately
addressed without considering a basic foundation of ethics. We cannot
reach a meaningful normative conclusion about workplace privacy rights and
obligations without a fundamental and common understanding of the ethical
basis of justice and a thorough understanding of individual and
organizational concerns and motivations.
A. Ethics as "Perception"
Individual views of appropriate bases for assessing the ethical nature of
acts and consequences vary widely. If I were to ask any one of you for a
definition of ethics, some of you may agree with that definition, while
others may completely disagree or want to enhance it. For me, the concept
of perception is critical for ethical assessment, since perception plays
such a paramount role in framing issues. Our ethical decisions are
influenced by our own perception of ourselves, by others' perception of
our actions, and by our perception of "universal laws." Our final choices
are determined by the perception that has the greatest impact or weight at
For example, perhaps you have a certain hat that you love to wear, and it
is simply the ugliest hat in the world. But it keeps you warm; and you're
just going to wear it. You don't care what anyone thinks. You don't care
if people stare at you walking down the block. All you care about is that
you are comfortable. Your perception is all that matters. This same
circumstance might exist for you in connection with an ethical dilemma.
Sometimes you believe so strongly in what you think that, even if the
entire universe believes what you are doing is wrong, you will go ahead
and do it because you believe it is right. I assume you can imagine a few
situations where the only opinion that concerns you is your own. You are
following your own values. It is your particular perception that defines
what is ethical.
Now contrast the influence of your personal perception in this situation
to the origin of the second potential influence on our actions: What
concerns you may be whether society perceives that what you are doing is
right. You can define society anyway you want: your mother, your
particular colleagues, people with whom you work, other family
members—whatever you define as your society, including of course, the
larger American or global society.
Ethicists often call this the New York Times test or the "New Integrity."
Perhaps now it should be called the web test. When reaching a resolution
to an ethical dilemma, you might test how you would feel if you saw what
you did today all over the Internet tomorrow. The question is whether you
would feel all right if everyone else (in your circle or society) knew
about what you did. In fact, you might believe that what you did is
absolutely right, but the world (or your mother) does not understand it,
misunderstands it or misperceives it. You can probably imagine scenarios
where you know what you are doing is right, but everyone is going to get
the wrong impression so you simply choose not to do it. What matters to
you in this decision is what other people think. There are certainly
situations where all of us might be subject to that type of influence.
The third scenario is where one's determination of whether something is
ethical is based on one's interpretation of some universal rule or rules
(such as a religious guidance or the direction of universally held
principles). For some people, the question they ask themselves is, "What
would Buddha or Jesus do in this circumstance?" It is the "perception" of
that religion, spiritual leader or other "omniscient" being that is
critical to your decision. In the end, you believe that the rule is the
word of God, or another being or force, and that is what is going to
influence your decision, whether or not society or you independently agree
So your determination of that which is ethical in any one circumstance
truly depends on whose opinion is important to you. I will give you one
example of the importance of perception in decision-making.
When I first took my three-and-a-half-year-old daughter on an airplane, I
was concerned about her comfort level since I am no fan of airline
takeoffs or landings. I was trying to prepare Emma for the takeoff, so I
said, "Emma, the plane is going to run, run, run and then jump in the air,
and it's going to jump just like you do, but it's going to stay in the
air, and it's going to be OK."
As we take off from the ground, of course, Emma looks out the window and
starts getting upset. But she is upset about something to do with the
ground. I couldn't figure out what she meant, until I realized that she
perceived the ground to be falling away rather than the plane flying in
the air. She could not see that we were in an airplane that was lifting up
into the air; she saw that the ground was falling away. It never would
have occurred to me that she would perceive it that way; yet that is what
Perhaps if I had considered how she might perceive the takeoff, I might
have addressed it differently. Do you ever go to sleep at night thinking
that something you did was just fine, but wake up the next morning with
everyone angry at you? Or you hand in a memo to your manager, thinking it
is perfectly clear, but she or he hands it back to you later saying, "I
don't know what the heck you're talking about here; you've got to be more
clear"? In that regard, it may be very helpful to engage in a bit of
analysis to try to view things from the perspective of each of those
individuals who might be impacted by your decision.
I do not believe that each of our codes of ethics is fundamentally
different, but we often care about different perspectives. Certain
perspectives seem more valid, depending on the circumstances. Addressed
this way, it is clear that businesses, in particular, generally care about
what their primary stakeholders consider to be ethical, because they are
perceived to have the greatest impact on the business.
B. The Impact of Ethics as Perception in Business Decision-Making
There are a number of factors that influence businesses to care about how
they are perceived by society. The law persuades us to be ethical by using
deterrents or punishments. The Federal Sentencing Guidelines prescribe
hundreds of millions of dollars in fines or jail time for violations.
Businesses are also influenced by pragmatic reasons. The Ethics Resource
Center in D.C. found recently that firms with strong, written codes of
conduct are a better investment than those which do not have written
Society is also persuasive in its forms of chastisement or praise
(consider the New York Times test mentioned earlier). Consider, as well,
the Johnson & Johnson case in connection with the tainted Tylenol
containers. That situation arose decades ago, yet I still discuss it in my
classes as a laudable way to respond to a situation. Wouldn't you like to
believe that decades from now people in your firm say, "Oh, you should
always do that the way [input your name] did it in 2000? Or would you
rather that people decades from now say, "Do it in any way, but never in
the way that [input your name] did it back in 2000?"
There are additional incentives for firms to engage in ethical behavior.
First, unethical behavior imposes terrible costs. Nestle continues to feel
the backlash resulting from an insensitive marketing campaign for infant
formula in developing economies that cost many children their lives. This
happened more that 20 years ago, yet I still discuss that case. Texaco has
paid out almost $200 million for its failure to pay attention to
diversity. Mercury Finance, Genentech, Bausch & Lomb, Microsoft: Each of
these firms has seen financial turmoil arise from ethical violations that
were not originally anticipated.
C. Our Habitual Business Decision-Making Process
So now that we have a clearer understanding of ethics and the impact of
perception, as well as an awareness of the incentives toward ethical
behavior, how do you do it? Usually, we make decisions considering limited
alternatives. I may say to you, what do you do, choice "a" or choice "b?"
You consider the options, feeling the pressure. You think, "Oh my gosh,
'a' or 'b' … I'll take choice 'a.'" But another option exists, doesn't it?
One might say, "Wait a minute, I need to think about this. There are other
choices that you did not offer me—choices 'c,' 'd,' and 'f.'" But usually,
we consider only the limited alternatives.
We use simplified decision rules. You must make the choice to terminate
someone. You choose to follow a rule of thumb, such as firing the last one
hired: "I'm sorry, there's nothing I can do." Rules of thumb relieve the
decision-maker of the accountability for that decision. It feels better to
say, "There is nothing I can do," than to explain that you have all the
discretion in the world, but are still firing the person.
Finally, we usually select alternatives that merely satisfy minimum
criteria. In my opinion, this normal habit is one of the most detrimental
of our habitual decision-making practices. If all of us need to reach a
compromise on something, we would naturally find a solution on which there
is no dispute. But, instead, it is seldom that one continues to seek
alternative, better solutions. At this point does anyone ever say, "Wait,
that might not be the best; let's keep trying?" It doesn't happen very
often. Too often we miss out on the best possible decision, making instead
the earliest possible decision.
D. The Ethical Process of Decision-Making
What follows is a discussion of the ethical process of decision making. It
may appear to be awfully complicated. But let me tell you this: It becomes
habitual, so habitual that it becomes uncomfortable when you are in
circumstances where you cannot conduct an ethical decision-making process.
If you've every learned how to drive a stick-shift car, you will
understand the following metaphor. Consider the first time you sat in a
stick-shift car. You have 85,313 things to remember. Stick-shift driving
is pretty complicated. You have to remember when to pop the clutch, when
to put in the clutch, when to put the brake or the gas on, what to do with
this hand over here, what gear you are in and so on. You begin to drive
and the car dies often, you stall, you deal with it, and then you learn.
However, once you become proficient at stick-shift driving, you don't
really think about when you have to put in the clutch anymore. You just
drive. And, in fact, when you drive an automatic car, your left foot keeps
going down to try to push the clutch in!
Compare these circumstances to the ethical decision-making process. It
will be difficult or challenging or burdensome in the beginning, but later
it will evolve into a habitual process—a process in which, if you do not
have the ability to follow it in a certain circumstance, you are still
pushing that left foot in. You are trying to do it. It's uncomfortable
that you cannot.
The ethical decision-making process is a follows:
1. Issue(s): Identify the dilemma.
2. Facts: Obtain all of the unbiased facts.
3. Alternatives: Identify the choices that you have (look not only to "a"
and "b," but also to "y" and "z").
4. Stakeholders: Identify those who have an interest. What are their
motivations? How much power does each hold over you or your firm?
5. Impact: Identify the impact of each alternative on each stakeholder and
the stakeholders' resulting impacts on you or your firm.
6. Additional assistance/theoretical guidance: Do theories uncover any
hidden implications? Do they support one alternative over another?
7. Action: Decide how to respond and act.
8. Monitor: Monitor outcomes and make adjustments where necessary.
There are few other questions that business practitioners might ask
themselves to gain a bit of guidance or direction.
1. How did I get in this dilemma in the first place?
2. Is my action legal? Where's the legal line?
3. Am I being fair and honest (is it "just")?
4. Am I acting in line with my personal integrity? With the firm's core
values? With the character traits I endeavor to exhibit?
5. Am I being self-serving or am I considering others?
6. Will [my action] stand the test of time?
7. Is this a model of "right" behavior?
8. How will I feel afterward (am I proud)?
9. Will someone get the wrong idea?
10. Is my loyalty in the "right" place?
11. Is this something a leader should do?
12. How do I never get here again? What should I have done awhile ago to
avoid getting to this horrible place.
The important factor in ethical decision-making is not necessarily
arriving at a correct or right decision, but is instead being conscious of
the impact of the decision on one's self and others. It is practically
impossible not to be affected by this consciousness in one's
decision-making if one follows the process set forth above. The end result
is a world of more conscious, considerate decisions rather than those
based on rapid-fire, gut instincts.
E. Ethical Decision-Making with Regard to Employee Privacy
Applying this ethical decision-making process to the complicated challenge
of employee privacy, one must first identify the issue and understand the
dilemma. Then one must obtain all of the facts, identify all of the
stakeholders. The next step is to attempt to understand the impact of the
different alternatives available to both employees and employers, and
identify all of the stakeholders. The next step is to attempt to
understand the impact of the different alternatives in terms of workplace
monitoring, surveillance, and so on. Perhaps ethical theories will provide
some insight. The issue of whether a fundamental "right" exists in
personal autonomy or, conversely, managing the workplace may be
illuminated by ethical theories. Finally, one needs to make a
recommendation and monitor the outcomes.
II. ETHICS IN INFORMATION TECHNOLOGY AND WORKPLACE PRIVACY
A. Ethical Issues Unique to Information Technology
"It appears to me that in ethics the difficulties are mainly due to the
attempt to answer questions without first discovering precisely what
question it is which you desire to answer." --George Edward Moore
Information technology provides us with a host of ethical challenges. New
technology poses new implications for the balance of power in the
workplace. We now have in-home offices, allowing for greater invasions.
Moreover, the line between personal and professional lives has become
blurred, as workers conduct personal business in the office and
professional business at home. The office usually provides faster, cheaper
and easier access to the Internet, while some work must be done at home in
order to be completed according to our modern, technologically enhanced
Technology allows employers to ask more of each employee because now we
are capable of greater production; we have greater abilities due to
technology. We don't seem to know when our workday is over. I used to be a
lawyer, and the understanding in that profession was, if you can work more
hours, you do. This is because you will then be viewed as the preferred
colleague. You will be the one who is going to get the plum assignments
because you work so darn hard.
Other issues are raised by enhanced technology. For instance, should the
technological ability to find something out make it relevant? With new
employment-testing technology, you can find out all sorts of personal
information. Through genetic testing, hair follicle testing, drug testing,
your employer can find out anything it wants to know about you. Similarly,
here, should the employer find out the information simply because it can?
In addition, new technology allows for a more faceless communication. If
you have to fire someone, it is significantly easier to fire that person
by e-mail than to walk into her or his office. In the latter case, you see
the individual—desperate, perhaps disappointed, frustrated with the fact
that you've worked them so hard and now you're terminating them. It's a
lot easier to be nasty when you don't have to look your stakeholder in the
Finally, there is research showing that the excessive exertion of power
and authority may lead to what they call a "semi-schizoid response,"
including insecurity, "disruption of biographical continuity," feelings of
being overwhelmed and powerless, and doubts about worthiness. The
implication is that, if someone questions you too much or takes away too
much of your power, the ultimate cost may be your emotional security.
Somewhat prophetically, Lawrence Lessig writes in his new bestseller,
Code, "We have been as welcoming and joyous about the Net (and other
technologies) as the earthlings were of the aliens in Independence Day.
But at some point, we too will come to see a potential threat…and its
extraordinary power for control."
B. Ethical Issues in the Privacy Arena
Specifically in connection with privacy, ethical issues arise with
gathering information, assessing its accuracy, correcting it and
disclosing it, as well as issues related to the substance of the
information itself. Simply knowing that someone has personal information
about you can feel invasive or violating. For that amorphous reason,
privacy is a slightly difficult concept to define. Ethan Catch says it is
"the ability to control what others can come to know about you." Why do we
care that someone knows our personal information? We can imagine items of
personal data that we simply do not want others knowing, whether or not
they would actually do something with that information. We do not like
people knowing things about us. It comes down to one's ability to be
autonomous in controlling one's personal information.
Do you, personally, care about the information others know about you?
Would you care if your boss knew of all your off-work activities? Consider
Milton Hershey. Milton Hershey would tour Hershey, Pennsylvania, taking
note of workers' lawns that were not kept up, or homes that were not
maintained. He would even hire private detectives to find out who was
throwing trash in Hershey Park. Another business owner, Henry Ford, used
to condition wages on workers' good behavior outside the factory. He had
150 inspectors in his "sociological department" to keep tabs on workers'
hygiene habits and housekeeping.
Only recently did OSHA retract a statement that the occupational safety
and health standards apply equally to workplaces and personal homes, when
you work as a telecommuter. Can you imagine if you had to maintain the
same standards of safety in your home that your employer must maintain at
the traditional workplace?
C. Status of New Technology with Regard to Workplace Privacy
A multitude of basic and inexpensive computer monitoring products allows
managers to track web use, to observe downloaded files, to filter sites,
to restrict your access to certain sites, and to know how much time you
have spent on various sites. These include products such as WebSense, New
Access Manager, WebTrack and Internet Watchdog.
One particular firm, SpyShop.com, claims to service one-third of the
Fortune 500 firms. This firm sells items such as a truth-telling device
that links to a telephone. You are told that you can interview a job
candidate on the phone and the device identifies those who lie. Another
firm, Omnitracks, sells a satellite that fastens to the top or inside of a
truck. The product allows trucking firms to locate trucks at all times. If
a driver veers off the highway to get flowers for her or his partner on
Valentine's Day, the firm will know what happened.
SpyZone.com sells an executive investigator kit that includes the truth
phone I mentioned earlier, as well as a pocket recording pen. Other
outlets sell pinhole lens camera pens, microphones that fit in your
pocket. The motto of one firm is "In God we trust. All others we monitor."
That firm offers a beeper buster: a computer program that monitors calls
placed to beepers within a certain vicinity. A screen on your computer
will show you all the numbers so that you can determine whether the
individual is being distracted during working hours.
D. Competing Interests, Competing Rights
The predominant question that I have sought to answer by my recent
research is whether a balance is possible between the employer's interest
in managing the workplace and the employees' interest in privacy. Do
employees even have a right to privacy? If one believes the answer is
"no," then the entire issue becomes moot. If the employee does have some,
even limited right to privacy, one must seek to find a balance of
interest. While we will return to the consideration of "rights" as we
apply ethical theories, below, it is helpful to identify the proposed
rights in dispute.
The employer has a right to manage the workplace. More specifically,
employers want to manage the workplace so that they can place workers in
the appropriate positions. They want to ensure compliance with affirmative
action and administer workplace benefits. They want to ensure effective or
productive performance. They need to know what their workers are doing in
their workplace. The employer's perspective is as follows: "I am paying
them to be there working. If they are not working, I should know that and
either pay them less, or hire different workers." It seems like a
relatively understandable concern.
Employees, on the other hand, want to be treated as free, equal, capable
and rational individuals who have the ability to make their own decisions
about the way their lives will unfold. They are interested in aiding their
own personal development and valued performance; in conducting some
personal business at the office; in being free from monitoring for
performance reasons; in being free from monitoring for privacy reasons;
and in being able to review and to correct misinformation in data
Consider the issue of personal work conducted at the office. I get to work
some days at 7:00 a.m. and don't leave until 7:00 p.m. Last I heard, many
doctors' offices are not open before or after 7:00 in the morning or
night. So when is one supposed to call and make an appointment, much less
ever go to an appointment if one is punching the clock with those hours?
The employer has to understand that workers must be able to call the
doctor and make an appointment. Workers need to be able to conduct
involuntary personal matters at the office. Now, one might not need to
e-mail their mother or chat on the phone with friends. Should workers
still have the right to conduct that voluntary personal business? Perhaps
the resolution lies in the precise definition of voluntary or involuntary
III. THE LAW, NEW TECHNOLOGY AND WORKPLACE PRIVACY
As dictated by the ethical decision-making process, one must obtain all
the unbiased facts before responding to an ethical dilemma. Where new
technology impacts the dilemma, the "facts" may be all the more difficult
to ascertain, since we are not yet completely equipped to obtain the
necessary information. For example, some scholars contend that nearly
everyone who has a computer (estimated to be about 80 percent of the U.S.
work force) is subject to some form of information collection, no matter
how much we protect ourselves. Another source reports that more than 30
million workers were subject to workplace monitoring last year, up from
only 8 million in 1991.
As of 1999, two-thirds of mid- to large-size firms conduct some form on
monitoring, whether it is computer-based monitoring, video monitoring,
monitoring of personal investments, or maybe simply monitoring key card
access to the building or parking garage (up from 30 percent in 1993). Our
style of working, even of communicating, has created greater possibilities
for monitoring. In connection with e-mail, for instance, more then
American workers now send more than 2.8 billion e-mail messages per. Since
we are using our employers' equipment and time, we shouldn't be surprised
that our employer wants to assure that all those messages are necessary
for the business to succeed, yet having someone read our mail feels
A. Federal Legislation
More than 100 bills on privacy protection have been introduced in
Congress, but only one has been approved, on the collection of personal
information from kids over the Internet. Also, the White House right now
is only supporting privacy protections related to medical information
privacy because they believe that this type of uncertainty will dissolve
as firms and employees become more comfortable with the medium.
B. Constitutional Protections
The Fourth Amendment to the U.S. Constitution protects the "right of the
people to be secure in their persons, houses, papers and effects, against
unreasonable searches and seizures." This protection implies a reasonable
expectation of privacy against intrusions by the State, only. As this
provision of the Constitution does not apply to actions by private sector
employers, their employees must rely instead on state-by-state laws and
the common law made and accepted in the courts. Similar limitation exists
in connection with the First Amendment's protection of personal autonomy
and the Fifth Amendment's protection against self-incrimination—each of
these only protects the individual from invasions by the State. Currently,
there is proposed employment-related privacy legislation in several states
that would apply to private sector employers, but those states fall in the
What the courts will generally consider in cases involving both the Fourth
Amendment and common law privacy protections is (1) whether the employer
has a legitimate business interest in obtaining the information, and (2)
whether the employee has a reasonable expectation of privacy. Several
examples of common law actions by the courts are illustrative of the
courts' attempts at creating this balance. Perhaps more significant are
the settlements reached by firms concerned about the prospect of a judge's
C. Case Law
In one recent case, two McDonalds restaurant employees used voice-mail to
transmit love messages during an affair. They believed that these messages
were private since the firm told them that only they had the access codes.
The franchise owner monitored the voice-mail messages and later played
messages for the wife of one of the workers. The lovers sued for invasion
of privacy. They settled for several million dollars, so we do not yet
have any judge's decision in a situation like this.
In another case that never made it to the courts, the Minnesota Attorney
General sued several banks for revealing personal information about
clients to marketers in exchange for more than $4 million in fees. One
bank eventually agreed to pay attorney fees plus $2.5 million to Habitat
While the law has not yet settled in connection with monitoring or the
privacy of obtained information—hence the settlements—monitoring does seem
justified by several cases where e-mail was later used as evidence to
encourage a settlement. Within the past several years, several large
firms, including R.R. Donnelly, Morgan Stanley, and Citicorp, have found
that cases often hinged on e-mail transmissions that people originally
thought were deleted. In one case, this included an e-mail containing 165
racial, ethnic and sexual jokes sent to the entire firm. In another, the
e-mail included sexual jokes about why beer is better than women. Had the
firms enforced stringent policies about the use of e-mail and monitored to
enforce these policies, perhaps these e-mails would never have been sent.
A few short months ago, the New York Times also found itself facing some
problems. They fired 24 employees at a Virginia payroll processing center
for sending "inappropriate and offensive e-mail in violation of corporate
policy." The public sector is not immune from similar challenge: The U.S.
Navy reported that it had disciplined more than 500 employees at a supply
depot for sending sexually explicit e-mail. It happens all the time, and
it's continuing to happen. You would think that people would actually
In cases where the courts have been able to address the issue, it seemed
at first that notice of monitoring might emerge as the critical factor.
Perhaps persuaded by early case law, of the 67 percent of mid- to
large-size firms that monitor, 84 percent notify their employees of this
activity. Notice might range from a one-line comment in the middle of an
employee manual that someone receives on the first day of work, to a
dialogue box reminding you that e-mail may be monitored that pops up each
time you hit the "send" button to transmit an e-mail.
In an early case addressing this topic, the court in K-mart v. Trotti held
that the search of an employee's company-owned locker was not appropriate,
because the workers were told to use their own personal lock. The basis
for the decision was that the employees were left with the legitimate,
reasonable expectation of privacy because it was their own lock. On the
other hand, an employer's search of employee lunch buckets was held
reasonable by another court only two years earlier.
In a later 1990 case, Shoars v. Epson, Epson won a suit filed by an
employee who complained about e-mail monitoring In that case, the court
distinguished the practice of intercepting an e-mail transmission from
storing and reading e-mail transmissions only after they had been sent,
holding that the latter was acceptable. In a 1992 action, Northern Telecom
settled a claim brought by employees who were allegedly secretly monitored
for more than 13 years. In this case, Telecom agreed to pay $50,000 to
individual plaintiffs and $125,000 for attorneys' fees.
One might therefore conclude that, if an employer adequately notifies
workers that it will conduct monitoring, it has effectively destroyed any
reasonable expectation of privacy on the part of the workers. However,
where a firm notified workers that it would not monitor, the court did not
follow congruent logic. It did not find a reasonable expectation of
privacy based on a firm's pledge not to read e-mail.
In that case, Smyth v. Pillsbury, Smyth sued the firm after a manager read
his e-mail. At the time, Pillsbury had a policy saying that it would not
read e-mail. One might presume that this policy should have created a
reasonable expectation of privacy. But instead, this was the first federal
decision to hold that a private sector, at-will employee has no right of
privacy in the content of one's e-mail when one sends it over the
employer's computer system. The court held, "We do not find a reasonable
expectation of privacy in the contents of e-mail communications
voluntarily made by an employee to his supervisor over the company e-mail
system, notwithstanding any assurances that such communications would not
be intercepted by management."
IV. THE LIMITATIONS OF THE LEGAL SYSTEM: A CALL FOR ETHICS
The law offers little, if any, guidance in this area in connection with
workplace monitoring, and technology as a whole. In fact, the development
of our moral systems has not been able to keep pace with technological and
medical developments, leaving us prey, individually and societally, to a
host of dangers.
It never occurred to most workers that some of their "private" information
was available or that they could be monitored in various ways. When
employers' access to personal information is not apparent, employees do
not adequately protect themselves against it. Failure to completely
understand the new technology may prevent people from completely
understanding their exposure or potential vulnerability.
The primary ethical issue for analysis is whether the employee's
fundamental right to privacy outweighs the employer's right to administer
the workplace according to its desires. If not, is there a way to satisfy
both parties? As law does not yet provide the answers, we turn to ethics
The strongest, most persuasive and most consistent guidance in this area
is based on a theory called Integrative Social Contracts Theory (ISCT),
which seeks to differentiate between those values that are fundamental
across culture and theory ("hypernorms") and those values that are
culturally specific, determined within moral "free space," and which are
not hypernorms. Included as examples of hypernorms are freedom of speech,
the right to personal freedom, the right to physical movement, and
informed consent. In fact, individual privacy is at the core of many of
these basic, minimal rights and is, arguably, a necessary prerequisite to
many of them.
Specifically, ISCT seeks evidence of the widespread recognition of ethical
principles that support a hypernorm conclusion, such as
international/national laws, religious beliefs, cultural acceptance,
acceptance by various governing and non-governing associations, and
accepted industry standards. With regard to privacy, a key finding of a
recent survey of the status of privacy in 50 countries around the world
included the following conclusion:
"Privacy is a fundamental human right recognized in all major
international treaties and agreements on human rights. Nearly every
country in the world recognizes privacy as a fundamental human right in
their constitution, either explicitly or implicitly. Most recently drafted
constitutions include specific rights to access and control one's personal
Accordingly, it would appear that the value of privacy to civilized
society is as great as the value of the various hypernorms to civilized
existence. Ultimately, the failure to protect privacy may lead to an
inability to protect personal freedom and autonomy.
The application of ISCT, however, has limitations. ISCT does not quantify
critical boundaries for rights. If employees have a right to privacy based
on a hypernorm, how far does it extend and what should happen in a
conflict? Doesn't the employer have certain hypernorm-based rights that
might be infringed by the protection of the employees' privacy right? To
quantify the boundaries of the universal rights, one must therefore look
beyond ISCT to a more fairness-based methodology.
Ethicist John Rawls's theory of distributive economic justice provides
fairness-based guidance for quantifying the boundary levels of fundamental
rights. Distributive justice defines ethical acts as those that lead to an
equitable distribution of good and services. To determine a fair method
for distributing goods and services, Rawls suggests that one consider how
we would distribute goods and services if we were under a "veil of
ignorance" that prevented us from knowing our status in society (i.e., our
intelligence, wealth, appearance). He asks that we consider what rules we
would impose on this society if we had no idea whether we would be princes
or paupers. Without knowing what role we might play in our society, would
we devise a system of constant employee monitoring or complete privacy in
all professional and personal endeavors? Rawls contends that those engaged
in the exercise would build a cooperative system that was sensitive to the
interests of all stakeholders. The reason Rawls believes that such a
standard would emerge is that the members of the exercise do not know
whether they would be among the employer population of employee
population. Actions consistent with a system devised under a veil of
ignorance are deemed ethical because of the inherent fairness of the
Rawls's theory of distributive justice does not provide guidance for
identifying the categories of fundamental rights. What Rawls does provide
is a method for establishing distribution rules that avoid market
transgressions of the boundaries of ethical actions.
Conjoining ISCT and Rawlsian methods enables the identification of basic
human rights and boundaries, and provides for a reasonable balance between
economic and ethical consequences of privacy protection for both employees
and employers. ISCT establishes the underlying or foundational hypernorms
within a society, while distributive justice offers guidance on the extent
of those hypernorms and the means by which to implement them.
The implementation of an ethical resolution:
Assuming for the purposes of this argument that privacy is a hypernorm,
but one that may be limited by the employer's congruent right to
managerial autonomy, how should the matter be resolved? I suggest a
fairness-based decision based on two values: integrity and accountability.
Integrity, meaning consistency in values, would require that the
decision-maker define her or his values, as well as create a
prioritization of those values. This effort is often accomplished by a
firm's mission statement or statement of values. Then, when faced with a
dilemma or conflict between two or more of these values, the
decision-maker will have internal as well as external guidance regarding
the direction her or his decision should take. Second, no matter which
direction is taken, the decision-maker must be accountable to anyone who
is impacted by this decision. That would require a consideration of the
impact of alternatives on each stakeholder; a balancing of that impact
with the personal values addressed in the first step; and actions that
represent the accountability to the stakeholders impacted by the decision.
Applying this process to a firm's response to monitoring and its impact on
employee privacy, the firm may obtain guidance from its mission statement
or alternative statement of values. Does monitoring satisfy or further the
mission or values of the firm? Assuming that monitoring satisfies or
furthers the values of the firm (since a negative relationship here would
end the discussion and resolve the dilemma), the employer must impose
monitoring in a manner that is accountable to those affected by the
decision to monitor.
To be accountable to the impacted employees, the employer must respect
their privacy rights and their right to make informed decisions about
their actions. Accordingly, this model would require that the employer
should give adequate notice of the intent to monitor, including the form
of monitoring, its frequency, and the purpose of the monitoring. In
addition, to balance the employer's interests with those of the work
force, the employer should offer a means by which the employee can control
the monitoring in order to create personal boundaries. In other words, if
the employer is randomly monitoring telephone calls, there should be a
notification device such as a beep whenever monitoring is taking place, or
the employee should have the ability to block any monitoring during
personal calls. This latter option would address an oft-cited challenge to
notification: If employees have notice of monitoring, there is no
possibility of random performance checks. However, if employees can merely
block personal calls, they remain unaware of which business-related calls
are being monitored.
If it feels wrong, it probably is:
As a manager, you are not without guidance on these issues. Kevin Conlon,
district counsel for the Communication Workers of America, suggests
additional guidelines that may be considered in formulating an accountable
process for employee monitoring:
There should be no monitoring in highly private areas, such as restrooms;
Monitoring should be limited to the workplace;
Employees should have full access to any information gathered through
Continuous monitoring should be banned;
All forms of secret monitoring should be banned;
Advance notice should be given;
Only information relevant to the job should be collected;
Monitoring should result in the attainment of some business interest.
Moreover, in its bargaining demands for last year, the Union of the United
Auto Workers demanded concessions with regard to monitoring, including:
Monitoring only under mutual prior agreement; No secret monitoring:
advance notice required of how, when, and for what purpose employees will
Employees should have access to information gathered through monitoring;
Strict limitations regarding disclosure of information gained through
Prohibition of discrimination by employers based on off-work activities.
I am emphatic in much of what I have presented here because I passionately
believe that there is a balance possible between workers and employers—not
simply in the privacy/monitoring debate, but in many of the ethical
challenges presented by new technological advances. Ultimately, employees
and employers share a common vision with regard to the purpose of work and
of the market in general. When the personal interests of both sides are
considered, viable alternatives emerge.
Extreme opinions exist. An employer may believe that employees should
simply quit if they don't want to be monitored, while certain employees
may believe that they should have the ultimate control over their personal
communications and other information. Two extremes. Yet there is an
absolute middle. One can absolutely respect the interest of the employee
while also protecting the interest of the employer. A monitoring program
that is developed according to and guided by the mission of the firm, then
implemented in a manner that is accountable to the employees, follows the
integrity/accountability approach I explored earlier.
From the employees' perspective, this type of resolution would respect
their personal autonomy by providing for personal space, by giving notice
of where that space ends, by giving them access to and the right to change
or correct the information gathered, and by providing for monitoring that
is directed toward the personal development of the employee and not merely
toward catching wrongdoers.
From the employer's perspective, this balance offers a way to effectively
but ethically supervise the work done by their employees. It protects the
misuse of resources, while also allowing [employers] to better evaluate
their workers and to encourage their workers to be more effective. I
contend that any program that fails to satisfy these basic elements has
the potential not only for ethical lapses, but also for serious economic
VI. CONCLUDING THOUGHTS
Before I conclude my remarks, I ask that you consider the following
questions not only with regard to information technology and the impact
that that technology has on your particular workplace, but also with
regard to the ethical issues that arise in other areas of your work.
Consider what you might be willing to quit over. What would be so
damaging, so intrusive, so much of a violation of your personal space that
you would simply quit right then and there? If you would be willing to
quit over an employer's intrusive behavior, then don't do that behavior
If I ask what your personal mission statement is, so that you could
actually implement the integrity and then accountability steps, would you
know right now what it would be? Could you recite to me what you think are
your critical values? Maybe not. But the time to think about them is now.
Not when those values are ultimately challenged.
I'll leave you with this. Stanley Milgram conducted this experiment in the
1960s. Imagine we're conducting Milgram's experiment with two people we'll
call Megan and Jim. Megan and Jim come into the lab and meet with a lab
technician. The technician gives Jim 50 cards that have printed on them 50
pairs of symbols, e.g., a square and a heart, a diamond and a star, and so
on. Jim has a few minutes to memorize these. "OK, Megan," the laboratory
technician explains, "you are going to come into another room and test
Jim. You're going to read off one of these symbols and, if he gets it
correct, you'll continue. If he doesn't, you'll shock him with this
electric shock machine, and then continue higher and higher voltages each
time. It's just a little uncomfortable." Megan says that she understands.
Minutes later, the experiment begins. Jim remembers a few pairs in the
beginning, but on the fourth card, he makes a mistake. He gets shocked and
Jim says, "Ah, that really hurt!" Megan says, "Well, sorry." They keep
going. They continue through a few more and Jim's saying, "Wait a minute.
This really hurts. Let me out of here! Let me out of here!" Later we hear,
"I have a heart condition! Please let me out of here. This is horrible! I
can't bear this any longer!" Megan's asking the experimenter, "What should
I do?" The technician responds, "The experiment requires that you
continue. You're being paid to participate in the experiment. There is no
permanent tissue damage."
Continuing, Megan gets to number 48, and she hears no sound from Jim's
chamber. She looks to the technician, who informs her that "No response is
the same as a negative response." So she swallows, takes a keep breath and
she zaps him. Forty-nine, no response. Fifty, no response. She stands up,
gets out of the chair and says, "Go, go, see if he's OK!"
And, of course, Jim is OK. He's reading from a script. He's not hooked up
to a machine. He's part of the experiment. What is being tested is whether
Megan will do what she has been told to do by an authority figure in a
business or medical environment, against what she believes to be this
person's best interest. One can now understand how this might be relevant
to ethics and business ethics in particular.
Would you do something you knew was wrong because your boss tells you to
do it? Often people say, "Well if I didn't, I'd be fired." Well, so is it
worth being fired? Should you do it or not do it? You still have a choice
How many of you sitting here this afternoon believe that you might
actually continue the whole experiment and go through number 50? Believe
it or not, Milgram found that 60 percent of the volunteers completed the
Now, the essential question: What is the difference between those of you
in this room and those tested? Are those of you listening today unique?
Well, actually yes, because you sat here for the past hour listening to a
discussion about ethics and you have had the opportunity to consider the
issues for a moment. Moreover, you have the opportunity under these
circumstances to observe the ethical dilemma and to have a slightly more
objective opinion as to what you might do.
I believe that if any of you went into a psychological experiment tomorrow
in real life, you would still challenge that experiment early in its
process. Why? Because you have actually thought about what you might do in
that circumstance. You have thought about the power or lack of power that
this lab person would have over you. I am hoping that, as we consider
ethics more and more on a regular basis, when ethical dilemmas come up,
perhaps you will already have considered your response or at least your
values with regard to the dilemma.
Simply by virtue of considering a dilemma beforehand, considering how you
would act or what is important to you, you are going to make a different
decision. The process cannot help but modify how you act.