Essay  

Taking into consideration the actions of Theranos and the actions of the two whistleblowers, when, if ever, is an employee justified in blowing the whistle? What do you see as the most important facts that he or she needs to consider in deciding whether to blow the whistle? Explain. Be sure to include moral argumentation to support your position

Morris H. Baslow, a middle-aged biologist and father of three, won’t forget the day he dropped an envelope in the mail to Thomas B. Yost, an administrative law judge with the environmental Protection agency (ePa). Later that day, Baslow was fired from his job with Lawler, Matusky & Skelly, an engineering consulting firm hired by consolidated edison of new York to help it blunt ePa demands. The ePa was insisting that the power company’s generating plants on the Hudson River had to have cooling towers to protect fish from the excessively warm water that it was discharging into the river. Baslow claimed that the documents he sent showed that con ed and Lawler, Matusky & Skelly had knowingly submitted to the ePa invalid and misleading data, giving the false impression that the long-term effects of the utility’s effluent on fish were negligible. on the basis of his own research, Baslow believed that the fish could be sig- nificantly harmed by the warm-water discharge. He said that for two years he tried to get his employers to listen, but they wouldn’t. Shortly after being fired, Baslow sent seventy-one company documents supporting his allegation to the ePa, the federal energy Regulatory commission, and the Justice Department. In the month following those disclosures, Baslow’s employers accused him of stealing the documents and sued him for defamation. Baslow countersued, citing the clean Water act, which protects consultants from reprisals for reporting findings preju- dicial to their employers and clients. a year later, Lawler, Matusky & Skelly dropped all legal action against Baslow and gave him a cash settlement, reportedly of around $100,000. In return, Baslow wrote to the ePa and other government agencies, withdrawing his charges of wrongdoing and perjury but not recanting his own scientific conclusions. asked why he finally accepted the cash payment, the unemployed Baslow said, “I’ve had to bear the brunt of this financially by myself. . . . I just wish somebody had listened to me six months ago.”52 other whistle-blowers express similar sentiments, even when they have been proved right. Microbiologist David Franklin blew the whistle on Warner-Lambert for promot- ing its epilepsy drug neurontin for off-label uses such as migraines, hiccups, and bipolar disorder. among other things, the company paid doctors to listen to pitches for uses of neurontin that lacked FDa approval and even treated them to luxury trips to Hawaii and to the olympics. (although doctors are free to prescribe drugs for uses not on their FDa-approved label, the agency forbids companies from promoting their drugs for off-label uses.) after a lengthy legal battle, Franklin was completely vindicated when Warner-Lambert pled guilty and agreed to pay more than $430 million to settle the Justice Department’s claims against it. as part of the settlement, Franklin even received a multimillion-dollar reward under the False claims act, originally passed in 1863 to crack down on civil War profiteering. Still, says Franklin, “This has been the most dis- ruptive thing I can imagine can take place in anyone’s life.”53 or talk to David Graham, an FDa researcher, who endured rebukes and harass- ment from superiors for first investigating and then exposing the risk of heart attack that the painkiller Vioxx poses. “I can guarantee you, there are other whistle-blowers at the FDa,” says Graham. “Fear has them by the throat. and they struggle with their con- science and they struggle with the wrong they see, and they are paralyzed by their fear. They are looking to see—can that Graham fellow get away with committing the truth?

It remains to be seen whether I can.” He adds, “Please understand, I am not a hero, and I’m not endowed with extraordinary courage.”54 For his part, David Franklin offers the following advice to potential whistle-blowers: “People who are in the position I was need to think about their own futures and how they feel about themselves and what their kids look up to and why they got into this business in the first place,” he says. “That’s where the endurance of the thing comes into play.”55 The Baslow, Franklin, and Graham cases illustrate the ethical issues and personal risks facing employees who blow the whistle on what they perceive as organizational misconduct. We now address three more specific questions: What exactly is whistle- blowing? What motivates whistle-blowers to do what they do? When is one morally justified in blowing the whistle?

What motivates Whistle-Blowers?

Professor of philosophy Norman Bowie correctly points out that today’s discussion of whistle-blowing parallels the discussion of civil disobedience in the 1960s.58 Just as civil disobedience of that time felt their duty to obey the law was overridden by other moral obligations, so the whistle-blower believes that the public interest morally outweighs loyalty to colleagues and his or her duties to the organization. Coleen Rowley, for example, was a veteran FBI agent with twenty-one years of experience who had never worked anywhere else—indeed, she had wanted to be an agent ever since she was in fifth grade. When she decided to go public with evidence that her bosses had failed to follow up on information that might have thwarted the terrorist attacks of September 11, 2001, and were now misleading the public about what the FBI had known, her desire to do what was right took precedence over her lifelong love of the Bureau. although whistle-blowers such as Rowley are often stigmatized as “disloyal,” many of them see themselves as acting in the best interests of the organization. What motivates whistle-blowers? often, it’s simply a sense of professional responsibility. Take F. Barron Stone, for example. He warned his bosses at Duke Power that they were overcharging ratepayers in the Carolinas. When they wouldn’t listen, he told state regulators. That triggered an investigation, which led to Duke Power’s agreeing to change its accounting procedures and reimburse customers. “I was just doing my job” is all Stone says.59 or consider Cynthia cooper. an internal auditor at Worldcom, she got wind that some of the company’s divisions were engaged in crooked accounting practices. She raised the matter with the firm’s external auditor, Arthur Andersen, but it assured her there was no problem. When she didn’t drop the issue, Worldcom’s chief financial officer, Scott Sullivan, told her that everything was fine and she should back off. Troubled and suspicious about what was going on, cooper ignored Sullivan’s order. She and her team began doing what the external auditor was supposed to do. For weeks and weeks they pored over company books, working late at night to avoid detection by management, before eventually exposing the accounting scams Sullivan and others were involved in. “I’m not a hero,” she told friends and colleagues. “I’m just doing my job.” In the case of Noreen Harrington, the motivation was a little different. a veteran of the mutual fund industry, she resigned from Stern asset Management because her in-house complaints about improper transactions were disregarded. But she had no intention of telling authorities. Then a year later, her older sister asked her for advice about her 401(k). She had lost a lot of money and wasn’t sure that she would be able to retire. “all of a sudden, I thought about this from a different vantage point,” Harrington explains. “I saw one face—my sister’s face—and then I saw the faces of everyone whose only asset was a 401(k). at that point I felt the need to try to make the regulators look into [these] abuses.” That’s when she called the office of eliot Spitzer, then the new York State attorney general, who was on a crusade to clean up the mutual fund industry.

When is Whistle-blowing Justified?

Although the motivations of whistle-blowers such as F. Barron Stone, Cynthia cooper, and Noreen Harrington are honorable and praiseworthy, whistle-blowing itself is a morally problematic action, as Professor Sissela Bok reminds us. The whistle can be blown in error or malice, privacy invaded, confidentiality violated, and trust undermined. not least, publicly accusing others of wrongdoing can be very destructive and brings with it an obligation to be fair to the persons accused. In addition, internal prying and mutual suspicion make it difficult for any organization to function. And, finally, one must bear in mind that whistle-blowers are only human beings, not saints, and they sometimes have their own self-serving agenda. In developing his analogy with civil disobedience, Professor Bowie proposes several conditions that must be met for an act of whistle-blowing to be morally justified. These conditions may not be the last word on this controversial subject, but they do provide a good starting point for further debate over the morality of whistle-blowing. according to Bowie, whistle-blowing is morally justified if and only if

It is done from an appropriate moral motive. For an act of whistle-blowing to be justified, it must be motivated by a desire to expose unnecessary harm, illegal or immoral actions, or conduct counter to the public good or the defined purpose of the organization. Desire for attention or profit or the exercise of one’s general tendency toward stirring up trouble is not a justification for whistle-blowing. although, as chapter 2 explained, the question of motive is an important one in Kantian ethics, not all moral theorists would agree with Bowie’s first condition. Might not an employee be justified in blowing the whistle on serious wrongdoing by the employer, even if the employee’s real motivation was the desire for revenge? Granted that the motivation was ignoble, the action itself might nonetheless have been the morally right one. an action can still be morally justified, say some theorists, even when it is done for the wrong reason. Still, many people were troubled to learn that the whistle-blowing paralegal who provided anti-tobacco lawyers with crucial documents about a tobacco company’s secret studies on the health dangers of cigarettes was paid more than $100,000 by the lawyers.

The whistle-blower, except in special circumstances, has exhausted all internal channels for dissent before going public. The duty of loyalty to the firm obligates workers to seek an internal remedy before informing the public of a misdeed. This is an important consideration. In some cases, however, the at- tempt to exhaust internal channels may result in dangerous delays or expose the would-be whistle-blower to retaliation. When the personal risks are great, some writers recommend going outside official channels and blowing the whistle anonymously.

The whistle-blower has compelling evidence that wrongful actions have been ordered or have occurred. Spelling out what constitutes “compelling evidence” is difficult, but employees can ask themselves whether the evidence is strong enough that any reasonable person in possession of it would be convinced that an illegal or immoral activity has happened or is likely to happen. although this may not be an unambiguous guideline, the standard of what a reasonable person would believe is commonly invoked in other cases, such as deceptive advertising and negligence lawsuits.

The whistle-blower has acted after careful analysis of the danger: How serious is the moral violation? How immediate is the problem? Can the whistle-blower point to specific misconduct? These criteria focus on the nature of the wrongdoing. owing loyalty to employers, employees should blow the whistle only for grave legal or moral matters. The greater the harm or the more serious the wrongdoing, the more likely is the whistle-blowing to be justified. additionally, employees should consider the time factor. The greater the time before the violation is to occur, the more likely it is that the firm’s own internal mechanisms will prevent it, whereas the more imminent a violation, the more justified is the whistle-blowing. Finally, the whistle-blower must be specific. General allegations, such as that a company is “not operating in the best interests of the public” or is “systematically sabotaging the competition,” won’t do. concrete examples are needed that can pass the other justificatory tests.

The whistle-blowing has some likelihood of success. This criterion recognizes that the probability of remedying an immoral or illegal action is an important consideration. Sometimes the chances are good; other times they’re slim. Probably most cases fall somewhere between these extremes. In general, given the potential harmful effects, whistle-blowing that stands no chance of success is less justified than that with some prospect of succeeding. Even so, sometimes merely drawing attention to an objectionable practice, although it may fail to improve the specific situation (perhaps because the events disclosed happened in the past), encourages government and society to be more watchful of certain behavior.

The phrase “morally justified” can be ambiguous, and the preceding discussion does not explicitly distinguish between situations in which whistleblowing is morally permissible and situations in which it is also morally required (in the sense that one would act wrongly if one failed to blow the whistle). Factors 3, 4, and 5 are particularly relevant to determining this. Speaking generally, though, if the harm in question is great enough and if an employee is well positioned to prevent it by blowing the whistle on the organization, then he or she may well be morally obligated—not just morally justified or morally permitted—to do so.