Fairness

by Josephson Institute on December 11, 2010

How old were you when you first experienced the sting of injustice? Perhaps you were blamed for something you didn’t do or excluded from a club or team because someone didn’t like you? Perhaps you were given a lower grade than you deserved because the teacher had it in for you. Or did you ever experience frustration and moral indignation at not being allowed to explain your side of the story? Beyond these mundane inequities, many of us have experienced the genuine pain and outrage of racial, religious, or gender prejudice. We learned early on that life isn’t always fair or rational. And we know now that this doesn’t change as we become adults. It seems as if we just exchanged arbitrary treatment from parents, teachers, and coaches for that doled out by spouses, lovers, bosses, and co-workers

The workplace is where we tend to feel injustices most acutely, if only because that is where we spend most of our waking hours. When money, competition, and pride are at stake, both petty and serious unfairnesses are common — taking credit for another’s work, shifting blame, inequitable allocation of work load, promotions of the less competent for political reasons. And then there are all those double standards. Some do less work, and what they do isn’t good. They come in late, miss deadlines, and make mistakes. Yet they get the same raise as you. The company has strict rules, but when bosses do something you would get fired for, they receive only a slap on the wrist, if that.

As it happens, what is or is not fair is much more complicated and ambiguous than it seems from the vantage point of the person who feels shortchanged. Even though the underlying concepts of fairness and justice are simple, almost intuitive, applying them in real life proves very difficult. Distinguishing real injustice from self-serving justifications has become harder in recent years. It seems that whenever someone is denied something they want — a job, a promotion, a contract — they file a protest. As Ralph Waldo Emerson said, “one man’s justice is another’s injustice.”

Fairness is concerned with actions, processes, and consequences, that are morally right honorable, and equitable. In essence, the virtue of fairness establishes moral standards for decisions that affect others. Fair decisions are made in an appropriate manner based on appropriate criteria.

We tend to think and speak in terms of fairness when we are dealing with the behavior of individuals and everyday interpersonal relationships. We talk about justice and equity in the context of broader social issues and institutional obligations to individuals. Yet all three words apply to virtually any situation where we want to judge whether an action contributes to a good, rational, caring society.

Our devotion to justice is deeply ingrained. Aristotle said that “all virtue is summed up in dealing justly,” and the concept is so central to civilized governance that in 1215 the Magna Carta provided that “to none will we . . . deny or delay right or justice.” This reverence for justice is evident in all of America’s founding documents, we even pledge allegiance to a republic that stands for “liberty and justice for all.” Even Superman’s motto, “truth, justice and the American way,” reveals the unbreakable linkage between the pursuit of justice and our national identity. Not surprisingly, we take very seriously our obligation to do justice and rectify injustice as best we can.

Fairness and fair play are less lofty terms than justice or equity yet, on the level on which most of us operate, the desire to be treated fairly and the duty to be fair and play fair are far more relevant.

The moral obligations arising from the core ethical value of fairness are almost always associated with the exercise of power to render judgments that bestow benefits or impose burdens. Almost everyone has the power to give or withhold benefits (including approval, praise, honor, and support) and to impose burdens (including disapproval, criticism, blame, and condemnation). Parents, teachers, employers, college administrators, building inspectors, and innumerable others make daily judgments that significantly affect our lives.

The moral duty to be fair places constraints on our judgments and actions. There are two aspects of fairness: fair results (substantive fairness) and fair procedures (procedural fairness).

Substantive Fairness

In general, a fair result is one in which people receive what they are due and what they deserve, their just deserts. Unfortunately, there are no agreed to criteria to determine what a person “deserves.” Different contexts and political ideologies yield different and often incompatible criteria for substantive fairness. Some argue that true fairness is equality (each person receives an equal share of benefits and burdens). Others believe the better criterion is merit (those who are most competent and who produce the most deserve the most). Still others believe that benefits should be allocated based on need and burdens on the ability to carry them. Other theories of “distributive justice” include resource allocation based on effort, social contribution, seniority, and legal rights.

The wide variety of approaches to fairness means that for every decision there will be people who claim it is unfair. And they’re right —according to their personal criteria. Thus, in making difficult decisions that affect several stakeholders who have conflicting interests, it is impossible to come to a single, indisputably fair result. Nor is it possible to satisfy everyone. Generally, those who consider themselves winners in the decision will consider the result just, and those who see themselves as losers consider it unjust. This observation suggests three important rules about the fairness of decisions.

First, since disagreement and criticism are inevitable we must content ourselves with doing our very best to reach a fair judgment based on personal conscience and ethically justifiable standards of fairness. If you need to be liked or approved of by everyone, avoid accepting any responsibility that requires tough choices. Charges of unfairness come with the territory.

Second, we should be clear in our own minds about the criteria of fairness we are using and let others know, ahead of time if possible, what those standards are. For example, in making a hiring decision, we evaluate “qualifications” and make comparisons. It is helpful to everyone if we know and disclose what we think is relevant and irrelevant to the decision and, if we can, how we rank various factors. It is likely, for example, that all of the applicants will have one or more attributes that they think should be given great weight — seniority, experience, academic credentials, a proven track record, excellent references, evident potential, good interpersonal skills, blood kinship to the president of the company, etc.

In addition, a fair decision has to weigh deficiencies or blemishes. Applicants tend to believe that flaws in their competitors should be fatal while minimizing their own shortcomings — absenteeism, lack of pertinent experience, erratic personal relationships, a drinking problem, an opinionated personality, a bad reference, etc. In fact, all of these positive and negative factors are potentially relevant. With so many potentially relevant factors, any decision will be arbitrary unless there is some orderly way to sort and rank the issues. And though any good-faith decision that balances the strengths and weaknesses of candidates according to stated criteria is fair, one must still expect charges of unfairness from those who weigh the factors differently. The third rule in making decisions is that the procedures used must be and appear to be fair. In many cases, a judgment is defended primarily in terms of the process used to reach it. In effect, one can argue that a fair process always yields an ethically justifiable result.

Procedural Fairness

Fairness requires that the process of decision making reveals a conscious concern with reaching a fair, just, and equitable result. Decisions should be made, and should appear to be made, carefully, honestly, and objectively, with the knowledge that even a process of the greatest integrity does not always produce certainty and that something less will have to do.

There are two major types of decisions that are subjected to the scrutiny in terms of fairness: comparative selections (whom to hire or fire, which applicant to admit to medical school, who should be cut from the team) and factual determinations, often of an accusatory nature (did a person lie, cheat, or steal). Though personal and business matters should not be encumbered with the formal due process requirements of a court case, there are five principles derived from the judicial system that help assure fairness: notice of the standards by which a person will be judged, impartiality of the decision maker; thoroughness in gathering facts; in cases concerning blame or punishment, the opportunity of the accused to be heard; and careful evaluation based on an appropriate standard of persuasion.

Suppose you have good reason suspect, but are not sure, that your child lied to you; that your mate cheated on you, that your baby-sitter molested your child, or that your employee came to work intoxicated. How do you deal with these matters fairly, short of having a full-blown trial?

1. Fair Notice. First, you should determine whether the person accused had fair notice that the conduct was wrong. In the case of lying, cheating, and stealing, this is not a problem, but more technical violations, such as accepting improper gifts or using company assets, require more inquiry. If you deter mine that the person knew or should have known about the proper standards of conduct, further action on your part is fair. If, however, you decide that the person did not know and reasonably could not be expected to know of a rule, fairness may dictate nothing stronger than a warning.

2. Impartiality. Second, you should be sure you are a fair and impartial judge. This means you are willing to suspend judgment until all the information is in. It also means you have to set aside any conclusions you may have made and clear your mind of prejudice (prejudging) or predispositions about the person or issues involved.

3. Gather Facts. Third, you must make reasonable efforts to gather facts. Thoroughness without being compulsive is important. What do you actually know? Are there ambiguities that can be clarified? If you are making comparisons do you have sufficient information on each candidate concerning the factors you think are most important? If you are adjudicating facts, is there any way of confirming your suspicions or the accused’s claim of innocence without unduly embarrassing that person (a significant injustice could result simply from disclosing your suspicions to others)?

4. Fair Hearing. Fourth, in an accusatory setting you should allow the person accused an opportunity to tell his or her side of the story. This means confronting the accused with your suspicions and the facts or inferences you have to back them up. The “right of confrontation” is not only an essential Constitutional safeguard in criminal cases, it is a fundamental prerequisite of fairness in personal and business relationships. What is worse than discovering that you have been judged a liar, a cheat or a thief without a chance to stand up for yourself? The confrontation phase can be informal but it should allow the person to explain, clarify, and ask questions, and you must listen with a truly open mind.

5. Evaluation. Finally, you must carefully weigh and evaluate all the information you have, separating facts from opinions and opinions from speculation. Don’t be afraid to draw reasonable inferences but know when you have done so and the premises on which you base your conclusion. Before you reach a judgment you have to take up the issue of burden of proof. Does the accused person have to persuade you that he did not do it or do you have to be persuaded that he did? In most cases, if you are assigning blame or imposing a punishment, the “innocent until proven guilty” maxim of criminal law is the proper standard. That doesn’t mean, however, that you need to be convinced “beyond a reasonable doubt.” In most matters it is quite enough that after considering the facts, you are persuaded that the person did or did not do whatever it is he is suspected of doing or in comparative judgments that the balance of the evidence supports your decision.

Generally, the higher the stakes in terms of consequences to the accused, the higher level of certainty you should have. For example, your confidence in the person who takes care of your baby is so important that even small, lingering doubts may be enough to persuade you that you don’t want this person around your baby any longer. On the other hand, your level of confidence in the baby-sitter’s guilt should be considerably higher if you are going to report the matter to the police or make a damaging public accusation (something you may have a moral duty to do for the sake of other children and other parents). Similarly, if an inquiry into an employee’s drinking is likely to result in counseling, you don’t need to be as convinced as you should be if the employee will be fired.

Principles of Fairness

Fairness requires that we:

• Treat all people equitably based on their merits and abilities and handle all essentially similar situations similarly and with consistency.

• Make all decisions on appropriate criteria, without undue favoritism or improper prejudice.

• Never blame or punish people for what they did not do, and appropriately sanction those who violate moral obligations or laws.

• Promptly and voluntarily correct personal and institutional mistakes and improprieties.

• Not take unfair advantage of people’s mistakes or ignorance.

• Fully consider the rights, interests, and perspectives of all stakeholders, approach judgments with open-minded impartiality (setting aside prejudices and predispositions), conscientiously gather and verify facts, provide critical stakeholders with an opportunity to explain or clarify, and carefully evaluate the information.

{ 3 comments… read them below or add one }

Katherine October 18, 2012 at 11:26 am

I enjoyed your article and I came across it as I was researching a situation that has happened to me in the workplace.

I would just like your ethical opinion on the matter which is:
“if an allegation is made against you by a co-worker and your boss finds it serious enough to bring it to your attention, even though I’m confident that I did not do what I have been accused, when I asked her where the allegation came from, she will not disclose this information.

I feel it’s my right to know for several reasons. #1 has this come from a snitch or tatle tail that doesn’t like me and is just trying to start some problems to make me look bad #2 Perhaps this person has embelished on something so trivial that I can’t even remember the situation because it really didn’t happen the way this person described and #3 By knowing who brought up the issue I will be able to remember the circumstances that led to this matter, especially considering that I speak to very few people in my workplace as I have my own office and stick pretty much to myself.

I would greatly appreciate your feedback.

Reply

Michael Josephson October 18, 2012 at 3:34 pm

You have every right to seek the information and the person providing ought to be willing to own up to the accusation but you don’t have a right to get it nor does the employer have an ethical duty to give it. In fact, it is likely that such info was given under s pledge of confidentiality. This is very different than a criminal case where a person does have a right to know and confront his accusers. There are lots of sound policy reasons why people need to be able to anonymously provide information re: perceived or suspected wrongdoing. In fact this is the basis of many ombudsmen and corporate hotline protocols. Your boss was right to give you the chance to respond and your boss can take whatever action seems appropriate re: the accuser once he/she has your side of the story. I know this is not what you wanted to hear but it is my opinion. Best to you. Michael J

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Ninch February 20, 2013 at 10:33 pm

I call this sometimes professional injustice– one of the factor of promotion practices of the institution where i belong right now. Academic credentials do not have weight to academic promotion; playing favoritism is rampant in the organization. The reason several are loosing interest to pursue graduate studies is that they cant look forward to potentially employ their capacity professionally and competently, especially holding bigger responsibilities. Another one is prejudice. One is branded in negative way; one can no longer have chance to prove his worth professionally and competently because his skills and competence are obscured with negativism by people who are evidently ill-competent in supervision and mentoring.

I am grateful that i stumbled this site. I can use this to suffice my issues and concerns to our school head.

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