Gilbane Gold
Staff posted on October 24, 2006 |
Gilbane Gold

The Factual Issues
The factual issues that are relevant to a case are always of crucial importance. Often, however, the place of a factual issue in a moral problem is not clear. Three theses regarding the place of factual issues in a moral problem can illustrate this claim.

First, many times disagreements that appear to be over moral issues turn out to be disagreements over the relevant facts. Suppose two engineers disagree over whether the government should enforce affirmative action policies in the workplace. They may think their disagreement is over the moral issue of the permissibility of affirmative action policies. Further discussion may reveal, however, that their real difference is over the factual question of how discrimination can be eliminated. On the one hand, Tom may think that, apart from affirmative action policies, women and minorities will continue to experience gross discrimination in the workplace. Jim, on the other hand, may believe that fair treatment in the workplace can be achieved without governmental intervention. Furthermore, Jim may admit that if governmental intervention is the only way to eliminate injustice in the hiring system, he would be in favor of it too. Thus the real difference between Tom and Jim is not over any moral beliefs, but over a factual belief about what it takes to eliminate unjust hiring practices. If they could agree on the factual question as to how injustice to women and minorities could be eliminated, they could agree on their moral evaluation of the permissibility of governmental intervention.

A second thesis about factual issues is that often disagreement over the facts is every bit as difficult to resolve as disagreement over moral principles. Let us continue the example of the argument between Jim and Tom over affirmative action policies. Whether or not governmental intervention in hiring policies is the only way to eliminate injustice toward women and minorities is an issue over which people can and do argue interminably. Tom may cite cases in which discriminatory hiring practices continued for many years and were only eliminated when affirmative action policies were enforced. Jim may argue that now things are different, that younger people would be much more inclined than their elders to hire on the basis of merit. Tom may reply that Jim's assumption about the future is as yet unproved, and the argument may continue without resolution. Sometimes factual disputes cannot be resolved.

A third thesis about factual issues is that, once the factual issues are clearly isolated, moral disagreement may re-emerge on another (and more clearly defined) level. Suppose Tom and Jim finally agree that their dispute over whether affirmative action policies are necessary to eliminate injustice in hiring policies cannot be resolved. They may then agree that the issue between them must be reformulated in the following way:

Given that the question whether affirmative action policies are necessary to eliminate injustice in hiring practices cannot be resolved, which policy should we adopt? Should we agree that affirmative action policies are right, because they make it less likely that women and minorities will suffer discrimination? Or should we conclude that affirmative action policies are wrong, because, in the face of uncertainty, greater weight should be given to the freedom of employers to hire whom they will?

Jim and Tom may still disagree, but the nature of their disagreement will be much clearer. Now it is clear that the real issue is what should be done in the face of factual uncertainty. The possibility of their coming to agreement is also much greater.

It is particularly important for engineering students to appreciate the central place of facts in moral controversies and the necessity of isolating the precise nature of disagreements over the facts. Sometimes engineering students leave a classroom discussion of a moral issue with an attitude that might be stated like this:

Well, here was another dispute about ethics in which nobody could agree. I am glad that I am in engineering, where everything depends on the facts that everybody can agree on.

Ethics is just too subjective.

As the example given above illustrates, such beliefs are often based on profound confusions about what was really going on in an ethical debate. Many times it is impossible to know what the facts are, especially when they have to do with future consequences and degrees of risk and safety. Many times so-called ethical disagreements are disagreements about the facts. When the differing factual assumptions are isolated and resolved, people can often agree. And when the factual disagreements are clearly isolated, sometimes the moral issues can be more clearly formulated, and even resolved.

Part of David Jackson's dilemma may be attributable to his problems in resolving some of the factual issues in the case. Let us consider some areas in which David may encounter such problems.

First, there seems to be some doubt as to whether and to what extent Z CORP has violated city regulations. On the one hand, Tom Richards, the environmental engineering consultant fired by Z CORP, believes that Z CORP has violated the regulations repeatedly. Professor Massin, on the other hand, believes that the case against Z CORP is not conclusive. Part of the problem is that two different tests are involved: an older and less sensitive test and a newer and more sensitive one. The newer test seems to show that Z CORP is violating the regulations — though only slightly. There is a question as to how long the violations have been going on, because the new tests have been used for only a short time.

Second, there is a question about the legal status of the new tests. Would courts use the old tests or the new tests in determining whether Z CORP has violated the law? The law specifies the old tests as the measure, but there might be reason to wonder what the courts would do if it were known that Z CORP was aware that it was violating the standards by the more sensitive tests.

Third, there is a question about the exact nature of the reports on discharge purity that David sends to the city each month. Does the report merely give the amount of heavy metals discharged for a given unit of effluent, or does it explicitly state that the discharge of heavy metals is of a certain amount as measured by the old test? The answer to this question is important in considering the first question whether David is deceiving the city, although it is not sufficient to answer that question.

Fourth, David might have reason to wonder whether the consultant, Tom Richards, has ulterior motives which bias his position with respect to Z CORP. His consulting firm lost a valuable client in Z CORP, and he was insulted by being summarily dismissed by Z CORP. Is he pressing David to blow the whistle on Z CORP in order to punish the company for their treatment of him and vindicate his warnings about the toxic discharges?

Fifth, there are questions about the long-term health effects of introducing various amounts of heavy metals into Gilbane Gold. In his interview with the reporter, Professor Massin said that if Z CORP substantially increased its production, "then, we may have a problem." How substantial would this problem be? At what levels will there be a problem? Professor Massin may not be sure, although he seems to believe that the problem would be significant. Other experts may be equally unsure.

Sixth, what would happen if Z CORP officials were to take David's suggestion and present their problem to the city? Would city officials recognize Z CORP's financial problems and attempt to work out some sort of equitable agreement with Z CORP? If Z CORP officials knew the city would make this response — perhaps by giving Z CORP further tax relief — they would probably not hesitate to follow David's suggestion. No one knows how the city of Gilbane would respond to an overture of this nature, but assumptions (and these are factual assumptions) as to how the city would react can have a powerful influence on one's judgment as to what should be done.

You can probably think of other factual issues which are important in the case. The exercise of isolating these issues and deciding how they influence one's thinking is an important part of the analysis of Gilbane Gold.

Conceptual Issues
A conceptual issue is a matter of definition, of what we mean by a term. Getting clear about the meanings of crucial terms is an important part of responsible ethical thinking. There are several conceptual issues in the case that call for clarification.

First, in commenting on the flaw in the law that allows Z CORP to legally discharge more toxic materials by increasing the volume of the discharge, Lloyd Bremen, former state commissioner of environmental protection, says that this loophole allows Z CORP to legally "poison" the sludge. He might just as easily have used other terms that would have conveyed a similar meaning. For example, he might have said that Z CORP is "endangering" the public by its actions. To say that Z CORP is "poisoning" or "endangering" the public would ordinarily be the same as saying that Z CORP is doing something wrong, for we do not ordinarily think that "poisoning" or "endangering" people is a good thing. Words, such as this, however, will repay closer examination.

Many terms used in ethical discussion have both a factual and a value component. The best way to see the double aspect of such words is to continue with the process of definition. Suppose we define "poisoning" or "endangering" as "imposing an unacceptable risk." Now the factual and value components are clear, for the term "unacceptable" implies a value dimension.

It is true that in determining what constitutes an unacceptable level of risk with regard to heavy metals in the sludge, we must determine the effects on human health of various levels of the contaminants. This is a factual issue. There is another dimension, however, which involves value judgments. In order to determine what constitutes "poisoning" the sludge, or "endangering" the public, we must determine the acceptable level of risk. What is the highest level of heavy metals that should be tolerated? At what level do the concentrations of heavy metals become unacceptable? We may decide that any measurable increase in heavy metals in the bodies of those who consume the vegetables fertilized by Gilbane Gold is unacceptable. Or we may decide that any level which produces any noticeable effects is unacceptable or we may decide that any level which produces a given effect in a given percentage of the population is unacceptable. Or one may use some other criterion.

In any case, a value judgment must be made in determining the levels at which the discharge is "poisoning" or "endangering" the public. Dr. Massin seems to believe that present levels of heavy metal discharge by Z CORP are acceptable, but that substantial increases may be unacceptable. David must decide whether to accept Dr. Massin's definitions.

A second conceptual issue has to do with the question whether David is engaging in "deception" when he signs the monthly reports to the city without disclosing that newer and more sensitive tests show that Z CORP is violating city standards. To say that someone is engaged in "deception" is ordinarily to say that he is doing something wrong, although there may be justifiable instances of deception. If David is deceiving the city, this means he is doing something wrong, unless this is a justifiable instance of deception. Therefore it is important for David to know what he means by "deception."

It is not easy to come up with a satisfactory definition of deception. Most people would probably agree that actively denying something a person knows to be true or affirming something a person knows to be false are examples of deception. If David is called to testify before city officials and denies that the newer test shows Z CORP to be violating the standards, he would be engaged in deception. But this is not David's most immediate concern. Deliberately attempting to conceal information would probably also be considered a type of deception by most people, but David does not appear to be engaged in such a cover-up. The best description of David's action is probably that he has failed to come forward with information that is relevant, but which has not as of yet been required by the city. Is this deception?

Let us consider an example from medicine. Suppose a physician discovers that her patient has cancer and fails to reveal this information to him, even though she does not lie or actively conceal it. Most people would probably say she is deceiving her patient, even if they think the deception is justified. This is because (a) the information that a physician fails to reveal is important for the patient, and (b) patients ordinarily expect their physicians to tell them about their illness, given their relationship to the physician.

Both of these considerations seem important in the concept of deception. Failing to reveal information that is irrelevant to a situation would not ordinarily be considered deception. If a physician is making inquiries about my health and I fail to mention that I have an interest in antique cars, this would not usually be considered deception. My interest in old cars is just not relevant to the state of my health. If I fail to mention that I am a heavy smoker, this would be deception.

Likewise, what one would ordinarily expect a person to reveal is also relevant to the issue of deception. A person whom I have just met does not expect me to reveal the details of my sexual history or the traumas of my early childhood. Failing to reveal this information is not deception. Similarly, I am not expected to reveal the proprietary secrets of my company, and the fact that I do not is not a case of deception. Everyone knows that I am not going to do this, even though it involves a failure to divulge information that might be relevant in a certain context.

Perhaps we can use these insights to construct a more formal definition of deception:

X deceives Y if X denies what is the case or asserts what is not the case or conceals information from Y or even fails to reveal information to Y (a) which is important for Y or (b) which Y would customarily expect X to reveal to Y, given X's relationship to Y.

This definition still leaves two questions unanswered. (1) David must decide whether his relationship to the city is one in which the city would customarily expect David to be forthcoming with information about the new test. (2) Even if David decides that his failure to come forward with the information is deception, he must decide whether it is a justifiable case of deception.

A third conceptual issue has to do with the definition of "fairness," a concept which is relevant to at least two issue in the Gilbane Gold case. There is a question whether the city of Gilbane is unfair in requiring Z CORP and other businesses to bear the full financial burden of complying with the stringent standards imposed on industrial discharges into the sewer system. There is also a question whether Z CORP is fair to David in forcing him to take the possible legal liability associated with failing to disclose the results of the new tests to the city.

The concept of fairness is enormously complex and probably not subject to any simple definition. Perhaps it will be enough to say that fairness involves at least two elements. First, it requires free and informed consent. In order to be treated fairly, a person must be given the opportunity to make decisions in a non-coercive atmosphere and on the basis of as much information as possible. In particular, information relevant to his decision should not be deliberately concealed from him. Second, fairness requires that harm and benefit be shared in a roughly equal manner, unless there are other relevant circumstances. For example, it is not fair for one group to enjoy all of the benefits of a social policy and another group to bear all of its negative features.

In the next section we shall see how David might use these concepts in attempting to think clearly and responsibly about the moral and professional dilemma in which he finds himself. You may be able to think of other concepts which must be clearly defined before moral reasoning can proceed, but these are three of the most important. Now we shall consider the use of these concepts in making moral judgments.

Moral Issues: Relevance Problems
There are several moral issues in the case. Using terminology developed in the essay "Basic Concepts and Methods in Ethics," (appended to this report at the end of the cases) we can point out three relevance problems and one conflict problem that David must resolve. Recall that a relevance problem is one in which there is a difficulty in determining whether a concept applies in a given situation. A conflict problem is one in which two or more moral principles seem to be relevant to a given situation, and they seem to point to different judgments as to what should be done.

First, David must decide whether Z CORP is "poisoning" the sludge or "endangering" the health of those who consume the vegetables fertilized by Gilbane Gold. The facts are not completely clear, but it appears that Z CORP is violating the strict city regulations by the standards of the newer and more expensive test. The violations must be very small, however, for otherwise they would be detected by the older test. Since the strict regulations are intended to keep plants from poisoning the sludge and since the violations are minimal, it is difficult to argue that Z CORP is "poisoning" the sludge at the present time. If Z CORP increases its production 500%, then, as Professor Massin said, "we may have a problem." At the time of the story, however, it seems implausible to say that Z CORP is poisoning the sludge.

Second, David must decide whether he is engaged in deception in refusing to reveal the results of the new test to the city. We have given a definition of the concept of "deception" in the previous section. Now David must decide whether he is in compliance with this definition. Let us look at the definition again:

X deceives Y if X denies what is the case or asserts what is not the case or conceals information from Y or even fails to reveal information to Y (a) which is important for Y or (b) which Y would customarily expect X to reveal to Y, given X's relationship to Y.

It is certainly true that David is failing to reveal information to city officials which is important to them; the only question is whether the city would "customarily expect" David to reveal the information. One might argue that the relation of David to city officials is not at all like the relationship of a physician to her patient. David is an employee of Z CORP, and so one might argue that his relationship with the city is adversarial. Perhaps city officials expect that he will reveal as little information as possible to them.

While it may be true that whether or not David is engaged in deception depends in part on the expectations that others have of him in his role as the environmental representative to the city for Z CORP, it is also true that David is a professional engineer. There are certain expectations that come with this role as well. As an engineer, David is expected to adhere to standards of honesty and integrity. According to professional engineering codes, he is also expected to be concerned with the health, safety, and welfare of the public. It is difficult to believe that city officials would not consider David's concealing the information from the new tests to be a breach of faith and perhaps even a violation of the law. The letter from the city to David is an indication that city officials expect David to be forthright with them. So it seems reasonable to conclude that if David fails to reveal the information about the new tests, he is engaged in deception.

In the deliberation that he is engaged in, David might attempt to persuade himself that, while failure to disclose the results of the new tests to the city is a type of deception, it is justifiable deception. He might point out that Z CORP is not required to use the new tests, and therefore that Z CORP is not required by law to reveal the results of these tests to the city. He might also recall that Z CORP's plant is only marginally profitable and that the plant's closing would represent a substantial loss to the city. Finally, David could argue that the new test was performed at Z CORP's own expense, and he might even claim that the information about the tests should be considered "proprietary."

While not without a point, these arguments are ultimately unconvincing. The fact that something is not required by law does not mean it is not morally obligatory, so the fact that reporting the results of the new test is not a legal requirement does not mean is not a moral requirement. The fact that the plant is only marginally profitable does not mean that its economic viability should be preserved by deceptive practices. There may be other ways (which will be discussed later) to preserve the plant. Finally, even though Z CORP may have paid for the tests, their results are not proprietary information, and their results may be relevant to the health of the public.

There are other reasons for believing that deception is not justified in this situation. David has a legitimate concern for his own legal liability, professional reputation, and the possible loss of his license. Considerations of self-interest are legitimate, within certain limits, and this is one situation in which these concerns seem legitimate. Deception is also not justifiable when the health and safety of the public are at risk.

Probably David's most pressing concern is the prospect of a five-fold increase in Z CORP's production, and what this will mean for the health of those who consume vegetables fertilized by Gilbane Gold. He probably believes that a dialogue should be started with the city as soon as possible, and that this dialogue cannot be conducted effectively if Z CORP has already shown bad faith with the city. Concealing information will only exacerbate the problem, and the information probably cannot be concealed for very long in any case. Here, as in most cases, honesty is the best policy.

David faces a third relevance problem in deciding whether principles of fairness have been violated. One of the issues involving fairness is whether the city of Gilbane has itself acted unfairly toward Z CORP. There are good arguments that Z CORP has been treated unfairly in terms of both of the elements of fairness discussed earlier.

Fair treatment involves free and informed consent. David could argue that Z CORP was treated unfairly because the company was enticed with tax abatements to build a plant in Gilbane, and then the city imposed unusually stringent regulations on the discharge of heavy metals. Even if it is true that (1) the standards have been impartially imposed on all firms, that (2) the standards may be necessary to make Gilbane Gold safe, and that (3) the city of Gilbane may not have been fully aware of the dangers posed by the increased discharge of the heavy metals until after the new plants were built, it is also true that firms such as Z CORP were not able to make a free and informed decision about building the Gilbane plant.

A second aspect of fairness is that harms and benefits should be roughly equally distributed. Yet the city of Gilbane appears to be forcing the business sector to bear the full economic burden of protecting Gilbane Gold from contamination, while keeping all of the profits from the sale of Gilbane Gold for itself. City officials would no doubt argue that the plants that cause the pollution should have to clean it up, but Z CORP officials might argue that fairness requires only that Z CORP clean up its discharge to the level stipulated by national standards. Gilbane's regulations, by contrast, are ten times more stringent than those imposed by the United States government. Furthermore, the unusual restrictions are needed only because the city uses the sludge to make Gilbane Gold. Perhaps fairness requires the city to bear that part of the cost of pollution control that is created by the city's stricter standards. It could do this by a tax rebate to the plants or by a direct payment to them.

In the light of these considerations, David might well conclude that there is an issue of fairness between Z CORP and the city of Gilbane. This implies that if Z CORP officials inform the city of the results of the new test, they would have a good moral case for asking the city to agree to some type of accommodation. Whether the city would do this is, of course, another matter.

There is another issue of fairness in the case. In forcing David to sign the documents affirming Z CORP's compliance with city discharge standards when he knows that by the more sensitive tests Z CORP is violating those standards, Z CORP is being unfair to David. It is forcing him to make decisions that are neither free nor informed. When David took employment with Z CORP, he probably did not agree to engage in such questionable activities. Furthermore, David is being forced to place his professional career in jeopardy. If he signs the documents he knows to be misleading, he may be in danger of losing his license and facing prosecution. If he refuses to sign the documents or blows the whistle, he may be dismissed and blackballed by other employers.

Moral Issues: Conflict Problems
David's situation confronts him with a number of conflicting moral demands. He must evaluate these demands and try to find a way to reconcile as many of them as possible. It will be helpful to enumerate these demands and evaluate their strengths.

The results of the previous analysis strongly suggest that David cannot continue to sign reports asserting that Z CORP is in compliance with city regulations on thee discharge of heavy metals. In the light of David's knowledge of the results of the new test, he would be guilty of deception with regard to the city. It is also unfair to him for Z CORP to ask him to jeopardize his license and perhaps even his professional career by forcing him to sign documents that he knows to be misleading.

David may well believe not only that continuing to sign the documents would violate the ethical prohibitions against deception and fairness, but also that it would violate his positive obligation as an engineer to protect the health and safety of the public. While present discharge levels (even if slightly above regulations by the new test) may not constitute any severe health risk, the time will soon come when Z CORP will be discharging heavy metals in quantities that will be a threat to public health. Z CORP should begin negotiating with the city as soon as possible, and this negotiation must take place in an atmosphere of trust. This will be much more difficult if Z CORP is known to have engaged in deceptive reporting to the city.

David also has an obligation to Z CORP. He is an employee and therefore has an obligation to defend the company insofar as ethical considerations will allow. His obligation is not only to defend the integrity of the company, but also to do what he can to insure that a marginally profitable plant survives economically. Furthermore, the city may well have been unfair to Z CORP in imposing the strict discharge standards after Z CORP had moved to Gilbane and without giving financial assistance to the company in meeting the standards.

David has an obligation to the people of Gilbane as well. In addition to the obligation to protect their health and safety, he also has an obligation to do what he can to save a marginally profitable plant that employs thousands of local residents. Z CORP may not be the only plant that is in financial trouble. If the new test is required by city regulations and if the law is rewritten to prevent plants from being able to comply with the law merely by increasing their volume of discharge, other plants may face closure. David must try to meet the need of Gilbane citizens for jobs as well as their need for good health.
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