The Department of Justice code of ethics and ASA statistical guidelines

Code of Ethics as Applicable to the Department of Justice

The topic of ethics from the aspect of a professional and scientific viewpoint has emerged as a topic of significant concern in recent years, both for the Department of Justice and for other organizations as well. Ethics is generally a term used to describe a set of values that describe what is right or wrong, good or bad. As a result, guidelines and discussions surrounding ethics should be applicable to a broad range of cases, as conflicts are likely to arise between ethical principles. Any system of ethical principles is derived from philosophical reasoning, and research in this area indicates that if we have a system of a few principles that apply in all cases and are never contradictory, we have a clear and precise ethical system. As easy as it sounds, however, this is not always the case. This paper examines and analyzes the code of ethics from a professional and scientific viewpoint, from the angle of the Department of Justice and other organizations alike.

The majority of organizations today have developed an ethical approach based on principles that also considers consequences. Individuals shape the corporate culture, especially those in management positions. Thus a manager's ethical responsibilities includes his or her contributions to the company's ethical personality. A professional code should deal with the responsibilities of managers and others in positions of leadership. Whatever the ethical stance or obligation of an organization, it is clear that individuals still have ethical obligations when they see something that is wrong, especially if it can cause great harm. This obligation extends to citizens of countries and to the acts of their governments.

Code of Ethics (Guidelines)

At the Department of Justice, from the initial design of the Bureau of Justice Statistic surveys through the dissemination and maintenance of statistics, Bureau of Justice Statistic staff are governed by the ASA's Ethical Guidelines for Statistical Practice. The ASA's Ethical Guidelines represent the consensus of the professional statistical community for both the public and private sectors (U.S. Department of Justice, at (http://www.ojp.usdoj.gov/bjs/dataquality/overview.htm).The ASA's Ethical Guidelines address eight general topic areas and specify important ethical considerations under each topic. The topics include professionalism in the competence and judgment of statisticians, ethical behavior regarding allegations of misconduct, and responsibilities in publications, testimony, and research subjects (U.S. Department of Justice, at (http://www.ojp.usdoj.gov/bjs/dataquality/overview.htm).The ethical guidelines promulgated by the ASA apply to the professional activities of all Bureau of Justice statistical staff without regard to seniority level (U.S. Department of Justice, at (http://www.ojp.usdoj.gov/bjs/dataquality/overview.htm)..

Discrepancy between Males and Females

Laws affecting males and females in the workplace and equality are topics that have stirred great national debate, resulting in laws that protect and ensure such rights. Legally and linguistically, affirmative action is a proactive attempt to improve the employment or educational opportunities for members of minority groups and for women. An affirmative action plan outlines steps a company will take to recruit, hire, and promote such protected group members. Affirmative action also makes provisions for documenting the numbers and percentages of the company's workforce of minority group members and women. Organizations are legally required to produce a written affirmative action plan only if they are government nonconstruction contractors or subcontractors of $50,000 or more, or if they are under a court order because someone has demonstrated that the company or other legal entity has a pervasive history of discrimination. A company's affirmative action plan must contain a detailed analysis of the employer's current workforce by race and sex, an analysis of representation and utilization of minorities or women.

The Office of Federal Contract Compliance Programs (OFCCP) has responsibility for enforcing Executive Order No. 11,246 (amended by Executive Orders 11,375 and 12,086) by specifically prohibiting job discrimination by government contractors based on race, color, religion, sex, national origin, disability, or veteran's or military status. It is the responsibility of the employer to hire and promote from a broad pool of talent that makes no distinction on the basis of a characteristic covered by protection clauses. Reverse discrimination, or discrimination against whites, has also received great attention in the courts. However, white males are not defined as members of a protected group under the law. If the company is under a court order to increase its minority or female population, or if the company has a proven history of deliberate discrimination injuring nonwhites or women, white males may not succeed in seeking legal remedies.

This is a result of the historical background of such cases. The courts have ruled that nonwhites and women have suffered far more unfair treatment for a much longer period of time. White males have historically hired and promoted white males to the exclusion and detriment of other people merely on the basis of race or gender. As a result, the courts have ordered that where historical exclusion has occurred, protected groups must receive special consideration. Several major pieces of legislation deal with the definition of what exactly constitutes a protected group. The outcome is that discrimination on any factor, whether it is race, color, gender, religion, creed, national origin, age, disability, or military status is protected against. The Department of Justice has been especially careful not to discriminate against anyone whose group of origin has historically experienced unfair hiring, management, or firing practices, and that now can demonstrate that its chances for equal opportunity in employment can be achieved only through legislation and legal guidelines.

Profiling in Hiring

Gender, age and race profiling in hiring are issues that have received great criticism in their discriminatory application. The United States Department of Justice announced a few years ago the use of existing federal civil rights laws to take legal action against businesses and state and local governments that engage in employment discrimination against Gay and transgender persons (Chibbaro, 1998). This move was said to reflect a significant response on the part of the Justice Department generally to seriously apply existing laws in ways that can remedy current injustices against Gay people and gender-non-conforming people. The theory behind this was that the same civil rights statutes that explicitly ban discrimination based on sex can be applied to cases of anti-gay discrimination in a number of circumstances (Chibbaro, 1998). The Department of Justice was given the initiative to take on such cases, even though no federal civil rights law explicitly bans discrimination based on sexual orientation (Chibbaro, 1998).

It was noted that this effort by the Department of Justice could not be used to assist Gays or transgendered people who suffer discrimination based solely on their sexual orientation. All Americans are entitled to protection under existing laws that cover them, and if a gay or transgendered person is discriminated against for some reason other than their sexual orientation, the Department of Justice may take on the case (Chibarro, 1998). As a result, the Department of Justice applied the gender stereotyping strategy to a number of other instances where gay and transgendered persons commonly face discrimination or harassment (Chibarro, 1998). Also included is the anti-gay harassment of students in public schools and anti-gay discrimination or harassment in prisons (Chibarro, 1998). Furthermore, the Department of Justice will also consider taking action against local police departments that fail to provide adequate protection for gay and transgendered people (Chibarro, 1998).

Age discrimination can also be a problem in hiring profiling. The Age Discrimination in Employment Act of 1967 (ADEA) makes it illegal to discriminate against anyone over the age of 40 or to force someone into retirement because he or she has reached a certain age. The Rehabilitation Act of 1973, as reinforced by the Americans with Disabilities Act of 1990 (ADA), expands the definition of "protected groups" to include individuals with a disability that substantially limits one or more major life activities, who have a record of such impairment, or who are perceived as having such an impairment, who with or without reasonable accommodation can perform the essential functions of the job that he or she holds or wants. Those not covered include applicants and current employees currently using controlled substances; homosexuals, bisexuals, transvestites, and persons whose sexual behaviors do not stem from physical impairments; compulsive gamblers, kleptomaniacs, pyromaniacs, and people who experience compulsive psychoactive substance use disorders. The disability acts and their administrative guidelines also provide general guidelines for "reasonable accommodation."

Lawsuits alleging various forms of discrimination, such as the ones above, in the workplace more than tripled in the decade of the 1990s, according to the Justice Department's Bureau of Justice Statistics: from 9,936 in 1990 to 21,540. Whether or not an employer is innocent of the claims, court battles are very costly. Therefore, many employers find it more practical to settle out of court to avoid long legal battles and potentially high jury awards.

Reality vs. Morality of Ethics

Moral ethics were at the heart of a 2001 national study conducted by Barna Research Group. That study revealed that only one out of four adults lean primarily on religious principles and teaching or Bible content when making moral decisions (Moral Ethics, at (http://www.allabouttruth.org/moral-ethics.htm).In addition, almost 50% of the surveyed adults said they base their moral decisions on whatever will bring them the most pleasing or satisfying results (Moral Ethics, at (http://www.allabouttruth.org/moral-ethics.htm).Research in this area indicates that moral ethics are now considered relative to culture, relative to circumstance, and relative to the specific needs of the individual (Moral Ethics, at (http://www.allabouttruth.org/moral-ethics.htm).

From the standpoint of the Department of Justice, moral ethics was a primary foundation of the United States of America. America was founded on the right of religious expression known as freedom of religion and moral ethics. Cultural ethics are different from moral ethics. The goal of culture is to cultivate values, beliefs and patterns of behavior that can best support organizational success. Values and beliefs are cultivated strictly on ethics, which is the philosophy and science for determining what values to hold and when to hold them (Bottorff, 2004). Cultivating patterns of behavior depends on the social science paradigm of diagnostics, control and change management within complex systems (Bottorff, 2004).

Every organization is a culture, which is defined as a way of living, a way of talking, dressing, thinking, defining time, eating lunch (Solomon & Hanson, 1985). As stated above, a culture is a set of values, a way of relating to one another. Organizations such as the Department of Justice are living communities in which a great number of Americans make a home for themselves (Solomon & Hanson, 1985). The Department of Justice is an organization and culture within much of our ethics and many of our ways of thinking about ourselves and each other are created and enforced (Solomon & Hanson, 1985).

As a culture, the Department of Justice defines roles and jobs and sets the rules for proper behavior. It also sets goals and establishes what it counts as success.

Ethics

Many questions have been raised as to what the term "ethics" actually refers to. From a professional and scientific point-of-view, the ethics of business and the moral code of our society are inseparable, sometimes indistinguishable (Solomon & Hanson, 1985). Ethics is a branch of philosophy that is concerned with the principles and standards of human conduct. Ethics arise not from man's law but from human nature itself making it a body of natural laws from which man's laws follow (Bottorff, 2004). Ethics is a normative science that is concerned with the norms of human conduct. As a science ethics must follow the same rigors of logic as other sciences. When scientific ethical reasoning is properly applied ethics becomes a useful tool for sorting out the good and bad components of complex human interactions (Bottorff, 2004).

Ethics is a rational process for exploring all the possible behavior alternatives and selecting the best possible choice for all involved. This rational process builds from established foundations and principles to construct repeatable forms of ethical reasoning (Bottorff, 2004). Ethical flaws can be found at the foundation level, the principle level, or at the application level. When ethics are applied to advance organizations such as the Department of Justice, this branch of ethics is termed organizational ethics (Bottorff, 2004).

One of the most important characteristics of moral judgments is that they express values. The field of ethics is usually broken down into three different ways of thinking about ethics, descriptive, normative and analytic. Morality is used to refer to what we would call moral standards and moral conduct while ethics is used to refer to the formal study of those standards and conduct. For this reason, the study of ethics is also often called moral philosophy, which serves as a guide for people's actions. Because of this, it is necessary to point out that moral judgments are made about those actions that involve choice. It is only when people have possible alternatives to their actions that we conclude those actions are either morally good or morally bad.

Morals and Moralization

Morals involve much more serious aspects of how behavior and the manner in which others are treated. What this means is that failure to follow the dominant morals will result in a much harsher reaction from others, such as discrimination, physical abuse and theft. Another important distinction in morality is that between standards, conduct and character. Judgments might be about particular conduct, which includes a person's actions, or it might be about a person's character, which includes their attitudes and beliefs. Ethics involves the study of those standards and judgments which people create. Ethics assumes that the standards exist and seeks to describe them, evaluate them, or evaluate the premises upon which those standards exist.

Ethics in Crime and Justice

As far as public-sector ethics are concerned, corruption is a management problem. It spawns in conditions where even the finest laws do not make it beyond the statute books and where weak public institutions fail to enforce the rules or provide adequate control, oversight and transparency (Bertok, 2000). Integrity is a fundamental condition of democratic government. Countering corruption and promoting public integrity are critical components of sustaining economic development and making a successful transition to a market economy (Bertok, 2000). Therefore, corruption is not a cause, but a symptom of breakdown. To understand it means to address the factors influencing ethical behavior in the public service such as that of the Department of Justice (Bertok, 2000).

Countries, such as the United States, belonging to the Organization for Economic Co-operaton and Development (OECD) employ a range of tools and processes to discourage undesirable behavior and to provide incentives for good conduct. They issue basic codes of conduct which employees are expected to abide by, like rules about protocol, behavior and promotion (Bertok, 2000). Research indicates that there is no single method or miracle cure for stamping out public-sector corruption and crime (Bertok, 2000). Instead, a collaboration of incentives and sanctions are needed to encourage the right professional standards of conduct. It is the sum of these approaches that makes up an ethical infrastructure (Bertok, 2000).

Control is essentially a regulatory dimension, a legal framework that assures independent investigation and prosecution in the public sector, as well as full accountability, transparency and scrutiny (Bertok, 2000). It is an approach that is particularly emphasized in the United States. Where rules exist, the control element ensures that they are implemented (Bertok, 2000). Guidance, however relies more on leadership, personal responsibility and showing by example. Whereas under the control concept, problems have one solution, guidance sees not problems but dilemmas (Bertok, 2000). Another aspect of an ethics infrastructure is management. Building an ethics infrastructure can be confusing for governments and public-sector managers (Bertok, 2000).

Research indicates that the most important ingredient of a healthy public sector is transparency. Transparency shows how much the three underpinning elements of control, management and guidance interact, and relies on leadership and example, but also basic rules which guarantee responsibility, accountability and scrutiny (Bertok, 2000). Transparency must be managed as a routine matter as the public has an ongoing right to know how their institutions apply the power and resources entrusted to them (Bertok, 2000). The OECD now argues that public-sector decision-making should be visible and open to independent scrutiny in all manner of ways (Bertok, 2000). It has also been argued that even advertising job vacancies is a form of transparency which is sorely lacking in several countries (Bertok, 2000).

Additionally, research indicates that building a transparent and trustworthy public sector may actually bring real economic savings (Bertok, 2000). A government sector which lacks an ethics infrastructure is likely to spend more money on ways to improve its trustworthiness (Bertok, 2000). In some developing countries, several anti-corruption agencies can be found in the same public sector investigating each other's activities, which is a sign of the divisions and feelings of mistrust that are rife in some governments (Bertok, 2000). Building a proper ethics infrastructure right is significant to progress and upgrading the mission of government for the 21st century, and building on values like honesty, rights and democracy.

Justice is also an important dimension of ethics. As one researcher has indicated, "there can be no ethics without justice, just as there can be no business without profits (Solomon & Hanson, 1985)." Justice is the ultimate principle of fair distribution, or everyone getting what he or she deserves (Solomon & Hanson, 1985). Justice demands that two people doing the same job deserve the same salary, no matter who they are. Research indicates that justice is clearly wrapped in the notion of equality (Solomon & Hanson, 1985).

Sexual Harassment

In the early days, a sexual harassment lawsuit usually involved a female employee asked by her boss to engage in sex, and if she refused, she was fired. Other individuals claimed that although there was no threat of or actual job loss, they were still being treated in undignified and abusive manner because of their sex, including uninvited sexual comments, jokes, touching and other inappropriate or degrading behavior of a sexual nature (Orlov & Roumell, 1999). As these types of sex discrimination claims became more common, the U.S. Equal Employment Opportunity Commission (EEOC), the federal agency charged with administering Title VII, was prompted to issue guidelines on sexual harassment in 1980 (Orlov & Roumell, 1999). These guidelines, while not binding on the federal courts, are still used by the courts today to help analyze sexual harassment complaints.

The EEOC's guidelines recognized sexual harassment as a form of sex discrimination protected by Title VII and attempted to define the types of behaviors that were illegal. These regulations define sexual harassment as unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitutes sexual harassment when: 1) submission to such conduct is made either explicitly or implicitly a term or condition of an individual's employment; 2) submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual; or 3) such conduct has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile, or offensive working environment (Orlov & Roumell, 1999).

Confidentiality

Confidentiality is a significant aspect of investigating any sexual harassment claim. Although an organization as large as the Department of Justice cannot guarantee absolute confidentiality, alleged victims, alleged perpetrators, and witnesses must be assured from the outset that anything they say will be disclosed only to the extent necessary for conducting an adequate investigation. Research indicates that in addition to the complainant, the accused, and the investigation team, only management officials with a need to know should be privy to any information about the investigation (Orlov & Roumell, 1999). There is no need to disclose the details to other witnesses or to managers who have no stake in the outcome (Orlov & Roumell, 1999).

In a sexual harassment claim, certain information may need to be disclosed to the victim's direct supervisor in order to make decisions regarding possible job accommodations. The direct supervisor of the offender may need to be advised of the facts and take part in any decision regarding discipline (Orlov & Roumell, 1999). However, managers who have no involvement in the incident have no business knowing the details, and an investigator is well advised not to falter on the confidentiality issue (Orlov & Roumell, 1999).

Crossing the Line

Over 29% of women recently surveyed said that when they tried to ignore the behavior it made things better, and over 61% said that telling the person to stop made things better (Petrocelli & Repa, 1998). Research supports the intuitive notion that effective employment law training reduces the number of employee claims regarding discrimination or harassment of any kind. After implementing an employment law training program, the State of Washington experienced a 37% decrease in employment law related claims, which saved the state an estimated $2 million per year.

In another study, a healthcare company found that the year after implementing a harassment prevention training program, the number of internal complaints of harassment fell 36% and the number of litigated claims fell 41%. The total monetary costs of legal fees and settlement expenses fell by approximately 49%, saving the company over $800,000 in a single year. The company also found that employee turnover as a result of sexual harassment decreased substantially.

Integrity

In recent years, Congress, state legislatures, and federal and state courts and the Department of Justice have greatly increased the types of lawsuits that employees can bring and the amount of damages they can recover in those lawsuits. As a result, the number of employee lawsuits has mushroomed. According to a U.S. Department of Justice study, the number of employment discrimination and harassment cases filed per year between 1990 and 2000 tripled. Furthermore, employment law cases currently represent thirty percent of all civil litigation in the United States. In slow economic times where more employees are laid off, the number of employee lawsuits increases. As a result, organizations usually delete training when exposure to employment law claims is at its highest.

Conclusion

The topic of ethics from the aspect of a professional and scientific viewpoint has emerged as a topic of significant concern in recent years, both for the Department of Justice and for other organizations as well. As discussed above, ethics is generally a term used to describe a set of values that describe what is right or wrong, good or bad.

As a result, guidelines and discussions surrounding ethics should be applicable to a broad range of cases, as conflicts are likely to arise between ethical principles. Unfortunately, the cost of verdicts and settlements resolving harassment, discrimination, and other employment law claims is high. According to Jury Verdict Research, the average verdict in a sexual harassment lawsuit is $250,000.

Furthermore, with the availability of punitive damages and the threat of class action cases, many employers have paid exorbitant amounts to resolve harassment and discrimination cases. Research indicates that in the past several years, Mitsubishi Motors paid $34 million, Texaco paid $176 million, Coca-Cola paid $192.5 million, and the U.S. Information Agency paid $508 million to settle harassment and discrimination lawsuits against them. These large verdicts and settlements are not just confined to a few large organizations. Between January 2000 and June 2001, there were 62 jury verdicts and settlements in excess of $2 million in harassment and discrimination cases. Large verdicts and settlements are not limited to harassment and discrimination, for in 2002, more class action wage and hour cases were brought than class action harassment and discrimination cases.

Finally, ethical claims such as these can severally disrupt business operations for any organization, and lead to a negative workplace atmosphere that undermines collegiality and productivity. As a result, given the substantial costs associated with employment law claims, proactive employers ensure that they provide all employees the accurate and effective training necessary to ensure compliance with employment laws.