By: Kim Strom, Director of the UNC-Chapel Hill Office of Ethics and Policy and the School of Social Work’s Smith P. Theimann Jr. Distinguished Professor of Ethics and Professional Practice
Lavish vacations. Sweetheart real estate deals. Spouses with compromising careers. Paid private school tuition. The recent tumble of news from Pro Publica reveals longstanding, widespread conflicts of interest between Supreme Court (SCOTUS) justices and people with business before the Court. Amid the calls for accountability and enforceable SCOTUS ethical standards, many observers wonder at the silence of bystanders. Why, over the years of shady dealing apparently involving several justices, did it take scrappy investigative journalists to reveal the swamp? “Colleagues protecting colleagues” in the refrain from Richard Painter, former chief White House ethics lawyer.
At the heart of all scandals lie a few wrongdoers and a lot of bystanders. The behavior of immoral employees is less interesting and less complex than that of their coworkers. What accounts for the silent complicity of colleagues – some subordinate, but others, peers and even managers? “The petty cowardices of daily life” to quote author William Ian Miller.
The nine justices, their clerks, and assistants form a singularly powerful and exclusive community, but in many ways the Court resembles any other American workplace. As employees of different backgrounds and motivations, their interactions are shaped by policies and traditions, hierarchy, and roles. They may not agree with, or even like, each other, but they are bound together to produce common outcomes. Any employee can look at the SCOTUS revelations through this kaleidoscope and understand why colleagues protect colleagues.
No one wants to be the skunk at the garden party. Even in the most toxic of workplaces, it is rare for individuals to call out the misbehavior of others. Go along to get along. Live to fight another day. Social norms, fear of retaliation, cultural conditioning, and teamwork bromides all conspire to silence the many about the actions of the few. Office etiquette shuns the busybody or micromanager, effectively marginalizing and negating the Dwight Schrute aspirants. Anyone minding their own business thus assiduously avoids learning about troubling behavior. The propagation of policies (many absurd) that cannot reasonably be enforced leads to further disengagement from mutual accountability. The difficulty in getting employees to report fraud, sexual harassment, and other patently illegal behaviors is a signal of the barriers to reporting more ambiguous misdeeds like accepting lavish gifts from “longtime friends.”
Open secrets are the most difficult to uncover. The very definition of bystander apathy is that the more people who know about an event, the less likely it is that any one of them will rise to the rescue. This diffusion of responsibility eases the individual conscience and creates a collective veil of deniability. Compound this with groupthink, the bit of gaslighting wherein individual employees conclude they are the outliers for having concerns, and the culture of non-dissent becomes a workplace hallmark.
Accompanying the normative constraints on turning in unethical colleagues is the cost of reporting – in time, effort, and social capital. A whistleblower hotline still wants to know the who, what, when, where of an incident. Really, who has the time or energy for that? Doing nothing is easier, and it is often bolstered by a rationale of role morality – “I am not their boss” “I didn’t hire them” “I didn’t sign off on the faulty disclosure statement.”
Whistleblowing is risky, difficult, and distasteful. Being the squeaky wheel for integrity and shared accountability is uncomfortable. Arguing for increased transparency means everyone’s dirty laundry may get aired. Sometimes, being a courageous follower fails, and one must vote with their feet. Amid all the perfectly reasonable and recognizable reasons for colleagues protecting colleagues, a truth remains. When there is a workplace scandal, no one comes out clean. But at the end of the day, whether an Associate Justice or an Associate Cashier, who really wants to compromise their integrity by covering for the jerk down the hall? In the words of John McCain, “Remorse is an awful companion. Whatever the unwelcome consequences of courage, they are unlikely to be worse that the discovery that you are less a man than you pretend to be.”