Shared Responsibility for Corporate Wrongdoing
In the previous section, I examined the possibility that the corporation could shore up its ability to function as a rational target of blame by recruiting its members to do the feeling-work that the corporation itself cannot do.
For the reasons adduced there, I doubt that that possibility would render intelligible our blaming corporations. But there is a more straightforward way in which the corporation’s individual members should figure into an account of moral responsibility for corporate wrongdoing: At least some of these members are appropriate targets of blame in their own right. I have in mind here not just the individual malefactors, who obviously deserve blame for their own wrongful acts, but others within the corporation who engaged in no wrongdoing themselves: not only did they not contribute to the wrong, but they did not even know about it in advance; nor ought they to have known about it. Put more perspicuously, these corporate members are not individually at fault and yet, I shall argue, they nonetheless deserve blame.In so arguing, I set myself against what might be called the fault principle — namely, the principle that one is blameworthy for some wrong only if one is at fault as regards that wrong, where being at fault involves having negligently, knowingly or intentionally contributed to a wrong without justification or excuse. The fault principle is the paradigmatic ground of inculpation for individuals in contexts involving arms-length interactions. But fault is not a prerequisite for blameworthiness when it comes to intimates, as I have argued elsewhere (Sepinwall, 2017). Nor is fault a prerequisite for blameworthiness when it comes to institutional actors, as I shall now argue (see also Sepinwall, 2015).
To begin, it will be useful to identify who among the corporation’s members is liable to be blamed without fault.
I focus here on high-level managers (i.e., those individuals occupying executive positions) for two reasons. First, the ground of blameworthiness I go on to adduce rests upon the corporate member’s loyalty or solidarity and I take it that, of all the corporation’s members, executives are most subject to norms of loyalty and solidarity. Second, executives have the greatest capacity to control the corporation’s activities. To be clear, the idea is not that executives, in virtue of their control, could have prevented the wrong and so bear blame for failing to do so (cf. United States v. Park, 1975). If control were relevant in that way, then we would be squarely in the realm of the fault principle. Instead the thought is that the ability to exert control functions as a necessary precondition for eligibility for blame. Efficiencybased divisions of labor make it the case that low-level workers have too little control over the conditions of their work, with harmful consequences for their sense of self and their health too (Wilkinson, 2000). I take it that this is unfair (see Elizabeth Anderson, 2017). It would, as a result, be wrong to demand sincere loyalty or solidarity from these workers, so they are not eligible for faultless blame on the account I advance.16Executives, I have suggested, bear an obligation to experience loyalty to their firm and solidarity with their fellows (cf May, 1987). These obligations reflect a particular ethos appropriate to work in corporations, which consist of“teams” (Blair and Stout, 1999; Ian B. Lee, 2011). But they also follow from the nature of corporate production: it is frequently difficult, and perhaps even impossible, to individuate contributions to a corporation’s work product. Even where a subset of employees works on a discrete project, the output of that project results not just from the contributions of those employees but also from the managers who assembled them and came up with the project idea, other employees who might have laid necessary groundwork or offered feedback along the way, higher-level managers who structured departments and working groups such that the project members could in fact come together, and so on.17 Given these various contributions, there may be a large set of members of the corporation who bear responsibility for all of the corporation’s acts even though their connection to some of these acts might be tenuous.
In this way, loyalty and solidarity are not norms separate and apart from the nature of corporate organization. Instead, they flow from that organizational structure — they are the feelings and attitudes workers enmeshed in that structure ought to have. For those workers who enjoy high power and status in the corporation, we can treat loyalty and solidarity as genuine obligations, such that failure to experience them properly subjects the workers in question to reproach.
The obligations of loyalty and solidarity entail in turn several commitments and dispositions. For one thing, the executive should see her interests as aligned with those of the corporation, such that she experiences the corporation’s successes as a boon to her, and the corporation’s misfortunes as reasons she has to lament (see Fiss, 1976). For another, when it comes to praise or blame, the executive’s self-understanding should reflect the norms of loyalty and solidarity. This has interestingly divergent implications for the self-assessments the executive ought to make. Where the corporation has had a success, the executive should not single herself out for praise, even if that success was due in significant measure to her own contributions. Taking credit, even if it is her due, would betray the solidarity with her co-workers that she ought to experience, seeing them all as working toward a shared goal, in a team-like spirit. She should, in other words, demur in the face of praise directed at her personally, at least in the first instance. (If the praising party insists on having her accept individual credit, she might eventually accede, graciously. But it is important that she go through several rounds of this dance of praise and deflection, for it is an important embodiment of the team spirit that should pervade her orientation to her position. Were she to claim or accept individual credit too readily, we would rightly think that she had unduly minimized the contributions of others and also troublingly deviated from the norm of solidarity that binds her.)
While the executive should resist taking credit even where she is significantly responsible for the corporation’s success, she should also readily take on blame even where she is not significantly responsible for the corporation’s misstep.
The solidarity that makes credit-taking improper entails as well that blame-taking is appropriate, and indeed required, again at least in the first instance. As such, when outsiders blame the corporation, the executive should not step outside of her team to point an accusing finger at the co-workers who in fact participated in the corporation’s wrong. Instead, she should stand alongside them to absorb the blame that is all of their due.Now, with all that said, two qualifications are in order. First, the thought is not that the executive can never disclaim personal responsibility. Just as she could properly accept individual praise or credit after she had made clear that she recognized others’ contributions to the corporation’s success, so too she can gently seek to distinguish herself from the malefactors after she has made clear that she accepts moral responsibility for the corporation’s wrong irrespective of her own contributions to it. The important point is that she may not lead with a disclaimer; nor may she deny that the corporation’s agency is bound up with her own, such that she comes to bear moral responsibility for its wrong, irrespective of her responsibility for it.
Second, the norms governing the executive’s role do not require, or even permit, the executive to ignore individual contributions to wrongdoing in every context. Instead, it may be important that the executive seek to identify the individual malefactors in order to root them out, and to diagnose what institutional failures allowed them to proceed as they did. Nor do the executive’s obligations of loyalty preclude her blowing the whistle in order to bring wrongdoing to light. Loyalty to the corporation entails as well that the executive aim to safeguard it from committing, or continuing to commit, wrongs. It is only at the moment when the corporation is targeted for blame that the norms pertaining to the executive’s role function to foreclose individualized assessments. In particular, solidarity with her fellows demands that, when outsiders aim their blaming protests and punishment at the corporation’s members, she stand alongside them to absorb the blame that is her and their due.
The foregoing has sought to leverage the normative underpinnings of executive officeholding to establish that the executive ought to take herself to be blameworthy for a corporate wrong whether or not she is at fault for it. But even if she ought to do so, what makes it the case that outsiders to the corporation may take her to be blameworthy too? Elsewhere I have argued that outsiders should do so to reinforce the norms of holding this kind of office (2015). But that way of putting the point suggests a “proleptic” (Fricker) or prudential rationale. More accurately, I now think, the reasons we may take the executive to be blameworthy are the very conceptual and normative reasons she has to view herself as blameworthy. What it is to hold an executive position within a corporation is to be a legitimate target of blame for corporate wrongdoing. And it is right that this should be so. Executives’ liability to blame is part and parcel of norms that are beneficial, and perhaps even necessary, for corporations to function well. Solidarity and loyalty forge and cement the team aspects that foster the corporation’s joint activity. So there is much good to be had from having executives adopt this stance.
But why must we insist that they retain the stance in the face of corporate wrongdoing? For example, an amoralist might suggest that we need not take the bad with the good: executives should enact and insist on solidarity and loyalty during normal corporate operations, for the sake of promoting productivity and good morale, but discard them when the corporation is called to account. But matters cannot be arranged so shrewdly. For, if solidarity and loyalty are ever genuinely to be operative, they cannot be turned off when convenient. Indeed, if anything, their presence becomes credible only if and when exhibiting them comes at a cost. The moment when others direct their blame at the corporation for its wrongdoing represents one such instance. For the reasons I have offered, executives are the appropriate targets of that blame.
28.3