Editor's Note: This article originally was posted to the Notre Dame Magazine website.
Last year’s Deepwater Horizon oil spill in the Gulf of Mexico was relentless. Apparently the continued investigation and litigation aimed at British Petroleum will be equally so. It was recently announced that the Justice Department is expected to combine forces with several civil lawsuits, positioning themselves as a major player in this process.
Occupying a central position in the legal wrangling are the words “gross negligence and willful misconduct.” For example, Anadarko Petroleum Corp., a 25 percent owner of the damaged well — hasn’t paid BP for spill-related costs, citing that BP’s actions “likely represent gross negligence or willful misconduct.” If gross negligence is found, BP could be fined up to $4,300 per barrel of oil spilled. At 4.9 million barrels spilled, the fine — $21 billion dollars — runs deep.
While the exact definitions of these terms, and the distinction between them, are and will be continually debated in the courts, it is worthwhile to note that, consistent with the focus of our legal system on intent, both are defined as “intentional” acts. The use of these words suggests that BP executives should be held accountable if their decisions and behavior were intentional.
Most of us, I think, would have no problem with that criterion. If someone makes a conscious, intentional decision to disregard safety, ethical and/or environmental criteria in their decision-making process, by all means they should be held accountable. What is missing, however, in these discussions are the unintentional influences on unethical behavior that can result in equally devastating outcomes.
The study of behavioral ethics — a field that seeks to understand how people actually behave when confronted with ethical dilemmas — suggests that individuals often behave unethically despite their best ethical intentions. Rather than making trade-offs between behaving ethically and making money for their organizations, it is argued that executives often fall prey to ethical fading, such that they don’t consciously see the ethics in the decision. Such “blind spots” lead to unethical behavior without the decision maker’s awareness.
Consider the case of Bernie Madoff and his Ponzi scheme. There is no question that Madoff ‘s behavior was purposeful, deceitful and intentional. Yet many others unknowingly helped to ensure the viability of the Ponzi scheme, people who had no intention of hurting Madoff’s investors. Substantial evidence exists that many of those involved, including managers of feeder funds, had hints that something was wrong but failed to “see” the readily available evidence.
A case in point is Rene-Thierry Magon de la Villehuchet, a descendent of European nobility and the CEO of Access International Advisors and Marketers. He received repeated warnings about Madoff and the statistical impossibility of Madoff’s returns, yet he invested not only his own money with Madoff but also that of his family and his wealthy European clients. Despite his best intentions, he made decisions that unintentionally caused a tremendous amount of damage to those around him and, ultimately, to himself. Two weeks after the scheme was exposed, de la Villehuchet took his own life in his New York office.
Unfortunately, this type of unintentional unethical behavior is commonplace. One can look at most situations in which horrible decisions have been made — the Challenger disaster, the mortgage lending crisis, the Holocaust, Enron, the sexual abuse scandals in the Catholic Church, discrimination in the workplace, steroid use in major league baseball — and find individuals who had no intention of being part of a decision process that led to significant harm to others. Yet they were.
With the oil spill, it may turn out that there was gross negligence and/or willful misconduct that involved intentional unethical behavior. But what we are finding out from the field of behavioral ethics is that the success of those who made such intentional decisions may have very well rested on the unintentional behavior of the supporting actors.
The point of behavioral ethics is not to provide an excuse for unethical behavior that lets any person orcorporation off the hook. Rather, it is to illuminate unintentional unethical behavior as an unaddressed and ignored, but equally dangerous, culprit in unethical decisions. It is the hope that doing so will not only ensure that the role of such behavior is considered in unethical decisions, but ultimately better understood so as to reduce the harmful outcomes it causes.
Ann Tenbrunsel is the Rex and Alice A. Martin Professor of Business Ethics and co-director of Notre Dame’s Institute for Ethical Business Worldwide. She also is the co-author (with Max H. Bazerman) of Blind Spots: Why We Fail to Do What is Right and What To Do About It to be published this spring by Princeton University Press.