Before beginning my assignment to discuss Werhane’s scholarship on employee rights, I would like to mention several other areas in employment practice where she has made important contributions.1 Her discussion of the doctrine of employment at will is perhaps the most complete and balanced in the business ethics literature. I especially recommend Chapter 3 “Employment-at-Will: History, Evolution and Current Applications” in Employment and Employee Rights (2004) as well as her article with Tara Radin in Business Ethics Quarterly (Radin and Werhane 2003). Although Werhane finds the moral case for employment at will to ultimately be unconvincing, her balanced discussion is the epitome of what a good philosophical discussion should be. I also recommend the piece contrasting the status of job security rights in the United States and Europe that she and John McCall wrote for the Oxford Handbook in Business Ethics (McCall and Werhane 2010). Using the commonly accepted criteria of fairness, autonomy and utility, McCall and Werhane, after careful analysis, argue that the European system of job security is superior to the system in the United States. Again this discussion is balanced and well argued.
On the one hand, the public-private distinction has served to insulate private employers from excessive governmental scrutiny or regulation. Unfortunately it has also translated into a license for private employers to treat their employees however they choose, without regard for the constitutional rights provided to public employees. This results in a serious and arguably inequitable dichotomy between public and private employees. (Werhane et al. 2008: 35)
Using the same analytic care she showed in the discussion of employment-at-will, Werhane shows how the public-private distinction is blurred in cases of eminent domain and in dealing with issues of privacy created by recent technology. Werhane also convincingly argues that treating non government employment in the private domain has meant that due process and the Constitutional protections given public employees is absent for private employees.
Yet a third contribution centers around role obligations in employment. Many of the discussions about role obligations in business ethics recognize that assuming certain roles in business carries with that assumption moral responsibilities. A quality control engineer has certain moral responsibilities that come with the job. Common questions in business ethics around role obligations include: When are my role obligations overridden by higher moral obligations and do I ever have an obligation to blow the whistle and if so, under what conditions? Werhane has been an active participant in those discussions and her work in that regard is insightful and persuasive. One of her more unique contributions to the discussion is her use of the idea of reciprocity to show how commonly accepted obligations on the part of the employee to the employer require reciprocal obligations on the part of the employer to the employee. Thus if the employer has certain rights against the employee, the employee has reciprocal rights against the employer. And since Werhane’s analysis of reciprocity involves a discussion of rights, I am ready for my main assignment, an analysis of Werhane’s contribution to the scholarship on employee rights.
The Structure of this Paper
This paper focuses on Werhane’s theory of employee rights. What I hope to show is that Werhane’s early work on human rights during the 1980’s was very much in line with traditional human rights theory. Employee rights were either human rights or could be derived from human rights. However, in the mid 2000’s despite references to employee rights, Werhane focused less on employee rights and more on good employee labor practices. Why the change? Her path breaking book Moral Imagination and Management Decision Making had appeared in 1999 and, I will argue, the fundamental thrust of that work was in tension with a universal theory of human rights and employee rights. Indeed Werhane has consistently moved away from a universal human rights account of employee rights to one that is socially constructed or nearly so.
I will conclude by arguing that Werhane can have both a universal theory of human rights and thus a universal theory of employee rights and still be true to all her insights in her work on moral imagination. I will argue that the work of Amartya Sen and Martha Nussbaum, especially the work by Nussbaum, provides the necessary bridge. If I could persuade Werhane to take this alternative path, her work on employee rights is not complete and although we celebrate her wide ranging scholarly accomplishments this weekend,2 there could be more to come. I hope that some of that “more to come” would be in a return to universal employee rights grounded in human rights as traditionally understood. Werhane of course may be perfectly happy to be where she ended up.
Employee Rights-the Early Account 1985
Basic moral rights derive from those qualities that uniquely characterize human beings, and in a more restricted context, rational adults. Conversely, basic moral rights are those characteristics of human beings and persons the absence of respect or exercise of which allow treatment that violates what is uniquely characteristic of human beings or persons. … Moreover, all moral rights have at least three characteristics: (1) all moral rights are equal rights: (2) all moral rights are universal rights, and (3) all moral rights have an obligatory character. (Werhane 1985: 7-9)
Werhane gives as examples of basic moral rights the right to equal consideration, the right to security and subsistence, the right to life and the right not to be tortured, the right to freedom, and the right to private ownership (Werhane 1985: 16–21). It is important to note that Werhane takes these rights to be universal. After several chapters on the nature of the corporation, corporate agency, and the rights of employers, Werhane turns to employee rights. The employee rights are divided into two groups, political rights in employment which include due process, freedom in the workplace, and privacy and economic rights in employment which constitute safety, fair pay, participation, and meaningful work.3
Rights commonly demanded by employees include the rights to due process, to freedom and privacy, to safe working conditions, to fair pay, to participation and even to a meaningful job. The rights to due process and fair pay…are examples of the right to equal consideration. This is because each worker demands objective treatment as an equal in the workplace. The rights to freedom and privacy are derived from the basic right to freedom, which includes autonomy. The right to a safe workplace comes from the right to life, since work hazards threaten the very existence of employees. The rights to participation and to a meaningful job are interpretations of a positive right to freedom since these rights make demands on others to assist workers in their development in the workplace….What is interesting to notice is that corporations and workers are demanding truly basic moral rights. (Werhane 1985: 27)
In later discussions of these rights, particularly in Chapters 6 and 7, there is considerable discussion on the content of these rights and on their implementation. In some cases there is discussion on how these rights are grounded in human dignity and freedom. There is little if any further discussion on the relation of the various rights to one another. Therefore, I take the discussion at the end of the Introduction to be the definitive account of their relation. I also take it as definitive that Werhane means the employee rights enumerated there to be either basic moral rights or derived from basic rights. And as such I take it that her position in the 1985 book is that employee rights are universal.
Even meaningful work, or as Werhane often puts it a right to a meaningful job, is a basic moral right and thus is universal. Although I agree that meaningful work,, is a moral right, we know that today the right to meaningful work is not recognized as a basic moral right- a fact that does not undercut Werhane’s claim because, as she says, a basic moral right can exist even if it is not universally recognized. All of this analysis is very much in the spirit of traditional human rights theory grounded in human dignity. The 1985 book is the Werhane of the Enlightenment. What I wish to do is to show how Werhane’s view has changed as her interests in moral imagination have increased.
Twenty Years Later
We now skip ahead about twenty years to Employment and Employee Rights published in 2004 with Tara Radin. During that 20 year interval, among other major accomplishments Werhane published her important book Moral Imagination and Management Decision Making. That book initiated an important discussion in business ethics, particularly in the area of international business ethics. Werhane explains her account as follows: We look at the world through a series of frames, mental models. Mental models are not universal. Once we realize that we need to use moral imagination to get out of our private mental model and work with others to make decisions and solve problems. One lesson from this discussion endorsed by Werhane was a warning against imposing our Western capitalist mental framework on other societies because the imposition of our framework may be morally inappropriate. There was and is much to appreciate in that approach. But if we all look at the world through our own mental models, what happens to objectivity? Is the disinterested point of view impossible? And can we say that some mental models are better than others and if so on what grounds? In other words one strength of the mental models and moral imagination approach was to warn us against a cultural imperialism. However, a danger of that approach is a drift toward relativism or so it seemed to me.
However, the specific issue I wish to raise is whether the writing of that book and Werhane’s subsequent engagement with the philosophy therein has changed Werhane’s philosophy of employment rights. This brings us to the 2004 book, Employment and Employee Rights. Clearly the thinking in Moral Imagination and Management Decision Making was influential since the first chapter was entitled, “Employment, Moral Rights, and Mental Models.” Let us look at this chapter in some detail. In the very first paragraph of that Chapter, two interesting assertions are made: First, “Moral rights theory is a somewhat recent Western philosophical construction- a mental model or way of framing our experiences that postulates moral rights as evaluative mechanisms for judging and improving human behavior.” Second “Despite the parochial roots of moral theory, and keeping that qualification in mind, we shall conclude that moral rights are candidates for general evaluative principles, justifiable standards by which to judge a range of human phenomena including employment and employment practices.” (Werhane and Radin 2004: 7) My question is whether Werhane can hold both these positions and if so how? Let us look more closely at the views discussed in Chapter 1.
Rights talk is one way, but not the only way, to conceptualize our experiences and our moral intuitions, engage in evaluations, and form moral judgments about what we can and should claim for others and for ourselves. To argue that moral rights are universal claims to which every human being is entitled is an example of an incomplete, socially constructed, normative frame on which we base our rights claims and judgments about others and other cultures. (Werhane and Radin 2004: 23)
The theoretical assumption of rights theory underlie the project of this book. The workplace is not separate from other spheres of life. Employees everywhere, in every country and culture, whether they are executives, managers, assembly line workers, piece workers, or contingent part-time consultants share at least one common characteristic: they are all human beings, usually adult moral persons. It thus follows from the perspective of rights talk, that all employees share and are entitled to certain rights-“moral rights”-regardless of the particulars of their working conditions, economic exigencies, cultural biases, religious prohibitions, and so on. (Werhane and Radin 2004: 29)
Werhane then goes on to specify a number of workplace conditions necessary for employees to have rights, namely the absence of coercion, due process, and self-development. Werhane endorses things like safety, free speech and association, privacy, equal opportunity and procedural due process. I assume these are all employee rights since I cannot read the passage any other way. Additionally, Werhane specifies “a right to safe working conditions,” a “right to privacy,” etc. Moreover, and more importantly, I cannot make the two long paragraphs quoted above consistent. The first is the Werhane of Moral Imagination and Management Decision Making and the second sounds like the Werhane of Persons Rights and Corporations. If the dominant narrative is the former, then I would expect to see less emphasis on rights and more emphasis on good employment practices and their implementation in the remaining chapters of Employment and Employee Rights and that is exactly what I find.
Although several chapters have little if anything to do with employee rights, I do not find that troubling since the 1985 book was not exclusively about rights either. Rather we need to look specifically at Werhane’s account of employment rights in those chapters that contain topics that in the earlier work were described as rights-employee voice in Chapter 4 and meaningful work in Chapter 6 as well as her account at the end of Chapter 1.
Chapter 4 begins with due process which Werhane clearly believes is a right, but during the discussion, with the exception of the subtitle, “The Right to Due Process,” there is no mention of due process as a right or explanation and defense of due process as a right (pp. 77–86). Werhane makes the point that if employees have a right to due process then so do employers (p.83) Also that the right to due process is not protected in the United States (p.83). Those are the only times the word “rights” are mentioned in the full discussion. The chapter continues with a discussion of whistle blowing. During that discussion, I found two references to a right to blow the whistle. In one case the right seemed to follow from a right to free speech (p.88) and in the other reference Werhane contends that the right to free speech is significant because it is important that whistle blowers be protected from retaliation (p.90). In neither case is there any extended discussion of the relation of the rights to due process, free speech, and whistle blowing. The chapter concludes with a discussion of democratization and the workplace. However, after several pages of analysis, only in the last paragraph is a right to participate in decision making asserted. That last paragraph seems to ground the right to participate in democratic theory, especially as developed in the work of Christopher McMahon. There is lots of good material in Chapter 4 and I agree with all of Werhane’s normative conclusions. However, employee rights really seem tangential to the whole discussion. For example I think it significant that “right” does not appear once in the conclusion to the chapter.
In her earlier work, Werhane believed there was a right to meaningful work. In this 2004 work, there is an entire chapter on meaningful work but I could find no reference to a right to meaningful work anywhere in the chapter. It seems that at this point Werhane could say everything she wants to say-and she has lots of good things to say- about meaningful work without invoking rights theory. Werhane just is not defending a right to work in that chapter.
To make sure my observations were correct, I went to the Index and checked every page reference for “rights.” There were 29 references, 20% of which referred to Chapter 1. Several references had multi-pages. For example, 44–50. That discussion occurred in the context of Federal legislation, the Constitution and the Bill of Rights. It had little relation to the task of establishing employee rights. That should come as no surprise because for the most part rights protected in the Constitution only protect citizens against the government. The Constitutional guarantees do not apply to the workplace. Of course legal rights can be established by federal legislation and there is some discussion of that. But Werhane makes no claim that these legal rights are providing legal protection to moral rights. Pages 68–74 are referenced as being about rights. Those pages provide a philosophical discussion of the pros and cons of employment at will. There is a reference to a right to freedom of contract in that section, but the analysis on pages 68–74 is not a rights based analysis of the pros and cons of employment at will. Pages 82–86 are cited but the discussion there is about alternative dispute resolution. Except for the reference mentioned in my discussion above, there was no further discussion of rights.
The biggest issue facing us at this point is whether this book is really about employee rights or more generally about morally sound enlightened human relations practice. I quite honestly do not see that Werhane any longer needs rights to do the normative work she wants to do here. My suspicion is that with her path breaking work on mental models and her slide toward social constructivism, her early acceptance of universal moral rights has been given up and only a thin veil of a rights theory remains. The possibilities that one finds in the “Conclusion” to Chapter 1 are not developed in the later chapters of the book. Saying this does not detract from the contributions made in the 2004 book. There is a lot of nuanced discussion of important issues in the ethics of human resource management. However, it is not, in my judgment a book about employee rights.
The Oxford Handbook Piece of 2010
The rights that we categorize as basic are frequently identified as human rights or natural rights. The use of the terms “natural” and “human” is an attempt to signify a belief that some rights are possessed merely by virtue of being a human being. As such natural or human rights are held to be entitlements whose justification does not depend on particular forms of social organization. (McCall and Werhane 2010: 611)
The account of basic rights presented here is very much in the Enlightenment tradition. Basic rights are human rights to which all humans are entitled. They are universal. In describing the right to life McCall and Werhane say ‘…rights designated as “natural rights” or “human rights” are also often called “universal rights” in order to indicate that they are seen as valid claims in every society and valid even where they may not be in fact respected.” (McCall and Werhane 2010). McCall and Werhane acknowledge that whether basic rights are truly universal is controversial.
At this point it would be an easy step to derive a series of employee rights from basic rights as Werhane did in the 1985 book. But that tack is not taken. Employee rights are not basic rights but instrumental rights. Two brief quotations: “…for the analysis of employee rights that we propose …few employee rights could be argued to be basic.” And “But most employee rights…more likely will fall into a secondary category of rights which we will call instrumental rights.” (McCall and Werhane 2010).
And what are instrumental rights? “Instrumental rights gain their legitimacy not because they are integral to expressing a commitment to the inherent value of persons but because they are instruments for achieving goals that society finds desirable.” (McCall and Werhane 2010) A number of implications follow from this quotation. First, the grounding of employee rights in the inherent value of persons that was a feature of the 1985 book is explicitly rejected. Second, the justification for employee rights is now utilitarian or quasi-utilitarian. The justification for employee rights rests on their ability to achieve socially desirable goals. Third, given that justification for employee rights, what employee rights employees have depends on the goals of a given society. They are society dependent. As McCall and Werhane say, “Since instrumental rights are a means to an end, it is unlikely that they are universal.” (McCall and Werhane 2010: 612).
All of this is a marked departure from the 1985 book. This Oxford Handbook article seems to verify my analysis of the 2004 book-namely that Werhane was moving away from employee rights as basic moral rights-and indeed downplaying employee rights altogether-to speak about good human resource practices. With that came an emphasis on the social nature of employee rights and their lack of universality.
I have always admired the robust account of employee rights as basic moral rights or at least derived from basic rights that we find in the 1985 book. Despite my great admiration for Werhane’s work on mental models and moral imagination, I worried that Werhane was been pushed too far in a relativist direction and I think that would be a mistake, especially with respect to employee rights.
Human Rights as Social Construction
However, we also believe that, all things considered, the social construction approach provides the best available account of the continuing controversies over rights as well as the best key for understanding and respecting those communities that do not subscribe to the UN formulations of human rights and yet manage to respect and protect their members. This approach also has room for those cultures that prioritize the community by letting communal values trump individual rights, particularly in moments of crisis. (Werhane and Wren 2015)
In coming to this conclusion, I believe Werhane and Wren make three mistakes. First, their claim elsewhere in the paper that human rights theory is a Western idea is oversimplified at best. Second Werhane and Wren confuse the conditions with how we psychologically come to know something with the truth of what we know or somewhat more guardedly they confuse how we come to know something with the justification for what we know. Third, in aiming for a conversation about what rights there are and when and if they should be overridden, they mistakenly make consensus a criterion of truth or justification. It isn’t. Let us consider these mistakes in some detail.
In Chapter 10 of his classic book Development as Freedom Noel Prize winner, Amartya Sen has provided many instances where Western thinkers do not endorse human rights and many instances where Eastern thinkers are supportive of human rights as Westerners understand them (Sen 1999).4 I strongly recommend this chapter and an earlier article, especially in light of the fact that the Sen and Nussbaum capabilities approach provides a basis in human nature for a universal theory of human rights. Such an approach I will argue shortly can enable Werhane to have both a robust list of universal employee rights and plenty of moral free space for cultural differences.
In sum, this is a socially constructed, largely aspirational document created by a culturally and philosophically diverse committee as part of a larger ongoing dialogue in which individuals and states attempt to bring many diverse perspectives. (Werhane and Wren 2015)
As an account of how the document came about I think Werhane’s and Wren’s brief summary is historically accurate. But of course, that account has nothing to say about the truth of the human rights claims. A description of how a belief came to be held tells us nothing about the truth of the belief or how such a belief can be justified. When a justification for any of the UN human rights is asked for, something like an appeal to human dignity that all human beings possess is the answer given. A similar point could be made about the United Nations Sustainable Development Goals. They are the result of years of discussion, debate, and compromise. That is how they came to be. However, they were endorsed unanimously by all member states of the General Assembly and are considered genuine moral goals, i.e., to be morally justified.
Now there is a rejoinder that Werhane and Wren can make. They could claim that there is no independent truth about a belief separate from how we come to know it. All we can do is tell our stories (narratives) and through discussion reach a consensus about what to believe. In other words the process of discussion in an attempt to reach a consensus provides a justification for our beliefs once consensus is achieved. This strategy is highly sophisticated and has roots in the philosophy of Habermas, Rawls’s overlapping consensus, and in the philosophy of deliberative democracy. By implication Werhane and Wren could adopt the consensus view about the UN Declaration of Human Rights.
But accepting consensus as a criterion of justification or truth has a number of epistemological problems. Early on feminists quickly pointed out that well-educated, especially well-educated white males, had an advantage in conversation and debate and thus an advantage in determining a consensus. In other words, there are independent issues of justice in any attempt to reach consensus. I see no way to resolve that justice issue without an appeal to some concept or principle whose legitimacy is not determined by consensus. It is the consensus criterion, after all, that is being challenged. To respond on the basis of a consensus would be to beg the question.
Also there have to be rules on how you get to a consensus. Habermas and others realize that you need rules to govern the process. A consensus based on force or coercion is not a legitimate consensus. To argue that there is a consensus on the rules needed to get a consensus does not solve the problem. Rather it starts an infinite regress.
Moreover, some people should not be a party to the process of reaching a consensus. Persons who are unwilling to compromise or who come with overt bias or worse who seek to do their opponents harm are not allowed to participate. ISIS is not being allowed to participate in the Syrian peace talks. Rightly so, but on what grounds? It seems as if the appeal must be to an independent standard about the nature of participation upon which one attempts to build a consensus.
If you believe that a consensus can be wrong on an issue, then there must be criteria other than consensus to back up the claim that the consensus is wrong. And the notion that a consensus can be challenged in ethics as well as in science is well-established. Consider for example how Peter Singer challenged a consensus on the treatment of animals by appeal to facts about animal suffering. And the consensus against gay marriage is being undermined by arguments based on human rights. The justification of rights claims is not determined by consensus. Rather rights claims are used to determine whether a consensus is morally legitimate or not. So that move for Werhane would be shut off.
What’s the point of all this? I regret the move from a universal theory of human rights and of employee rights to an instrumental view of employee rights, and then to a socially constructed view of all rights including human rights. In part I think that the social construction view rests on philosophical mistakes. In addition socially constructed rights really do not seem to have much bite. Traditionally rights claims were often asserted against a society or a societal consensus. If rights on based on and get their justification from society, they lose their punch. Some of us in this audience will remember Joel Feinberg’s distinction between two kinds of society that were completely identical in all respects but one. One society had a concept of rights that could be claimed against society and the other did not. It seemed obvious that the society without the concept of rights was morally impoverished (Feinberg 1970).
If rights are socially constructed, how can they be effective claims against society? I am not surprised that the 2004 book really does not seem to be about rights. But rather than be negative I would prefer to accept Werhane’s insights on mental models and moral imagination and still have room for a universal theory of employee rights-an account of employee rights that has bite but is not a result of Western cultural imperialism. Such a move in my opinion is a better fit in a cosmopolitan world.
An Alternative-Moral Imagination and a Universal Theory of Employee Rights
In the remainder of my comments I want to suggest an alternative path Werhane could take that would be faithful both to her early understanding (1985) of employee rights as universal moral rights and to the insights from looking at human relations through the lens of mental models and using moral imagination.
I suggest that moral minimums are best understood as negative standards, universally agreed upon “bottom lines” beyond which it is morally questionable to act. For example, it is almost always wrong to deliberately harm or contribute to harming another person or persons; to deliberately violate their rights to freedom, life, or property; to treat individuals or classes of individuals with disrespect, to compete or cooperate unfairly, not to honor promises or contracts; or to be dishonest or deceitful. Whereas these moral minimums do not define goodness, fairness, or benefit or define the positive content of rights, they set minimum guidelines for behavior that most people everywhere might agree on, and the idea of moral minimums gives a strong counterargument to those who find values merely context dependent. (Werhane 1999: 122)
It should be noted that this quotation is from Moral Imagination and Management Decision Making. Elsewhere in the book the moral minimums referred to in the quotation are elsewhere referred to as “universal bads” to distinguish them from the universal goods about fairness or benefit mentioned in the quotation. The notion of “universal bads” is adopted from Michael Walzer (1994).
In the attempt to harmonize mental models with universal employee rights, the first point to note here is that I think the quotation above provides a basis for some of the universal employee rights that Werhane endorsed in the 1985 book. In 1985 the right to freedom was a basic moral right and here in 1999, it is a basic right as well. In 1985 Werhane was willing to use the basic right to freedom to argue for a number of universal workplace rights. For example, it appears that the universal right to freedom in the workplace is derived from the right to freedom. And couldn’t, and perhaps wasn’t, the 1985 right to participation derived from the right to freedom Also from the quotation, unfair treatment is a universal bad. Can’t the 1985 right to fair play be derived from the universal injunction against unfair treatment? And couldn’t the right to a safe working environment be derived from the universal injunction against harming people? Indeed it seems to me that all the rights except the right to meaningful work and perhaps the right to privacy could be derived from the universals identified in Moral Imagination and Management Decision Making. Werhane can have both her theory of mental models and a fairly robust list of human rights. There is no logical inconsistency. If freedom is a basic moral right as Werhane asserts, why isn’t freedom in the workplace a basic right? Werhane could accept, what seems obvious, that the right to freedom provides the foundation (entails?) a right to freedom in the workplace and still be a social constructivist regarding the content of the right to freedom in the workplace. Werhane just made her social constructivist leap one step too soon. Where moral imagination for the manager comes in is in figuring out how to have freedom in the workplace and still produce a product. And there are lots of ways to do that depending on the society and tradition in question. Germany has worker cooperatives. Open book management is a technique used in some companies in the United States. And of course there are many many other viable techniques for getting freedom of participation.
Since I support Werhane’s 1985 list of universal employee rights, I am pleased to find ways to maintain many of those universal employee rights while at the same time keeping most of the insights of Moral Imagination and Management Decision Making. And I can do that within the framework of that important work.
However, I am still not satisfied since I believe the right to privacy and the right to meaningful work are also universal. We cannot get all the employee rights we need because some employee rights are positive and presuppose some standard of the good, not just some standard for the bad. The obvious question is how do we get employee rights from this account of moral rights based on universal “bads”? Many employee rights seem to be positive rights rather than negative rights. Werhane explicitly denies that the universal bads provide content for positive rights or even standards for fairness and goodness. To establish an argument for that Werhane needs a more robust account of universal goods than Walzer can provide. Walzer is too thin for my taste. However, the capabilities approach of Sen and Nussbaum-two authors often cited in Werhane’s wrok- give us a more meaty or robust account of a universal human nature that in turn can ground a more robust account of employee rights.
Grounding human rights in human nature is compatible with the traditional accounts of human rights. Originally human beings had human rights on the basis of the fact that we were created in God’s image, then they were grounded in the universality of human reason or in the dignity of human nature as in Werhane’s 1985 book. What Sen and Nussbaum do is to expand this account of human nature to universal human functioning and the human capabilities that enable us to function. I will focus on Nussbaum’s elaboration on Sen’s account since it has the most promise for providing a robust theory of employee rights.
What activities characteristically performed by human beings are so central that they seem definitive of a life that is truly human? In other words, what are the functions without which (meaning without the availability of which) we would regard a life as not, or not fully, human? (Nussbaum 1999: 39)
- 1.
Life
- 2.
Bodily health and integrity
- 3.
Bodily integrity
- 4.
Senses, imagination, and thought. Being able to use the senses, being able to imagine, to think, and to reason-and to do these things in a truly human way, a way informed and cultivated by an adequate education, including, but by no means limited to, literacy and basic mathematical and scientific training, being able to use our imagination and thought in connection with producing expressive works and events of one’s own choosing. …
- 5.
Emotions
- 6.
Practical reason. Being able to form a conception of the good and to engage in critical reflection about the planning of one’s own life.
- 7.
Affiliation ….. (b) Having the social bases of self-respect and nonhumiliation, being able to be treated as a dignified being whose worth is equal to that of others.
- 8.
Other species
- 9.
Play
- 10.
Control of one’s environment. … In work being able to work as a human being, exercising practical reason and entering into meaningful relationships of mutual recognition with other workers. (Nussbaum 1999: 40)
Before providing some suggestions on how Nussbaum’s account of human capabilities can ground Werhane’s employee rights, I need to show just how Nussbaum’s account is universal and yet allows for flexibility within different cultures and particular situations. We note at the outset that Nussbaum’s definition of human functions entails that they be universal since they are activities that are definitive of a life that is meant to be truly human. Nussbaum explicitly states that philosophically her account is grounded in a non-relativist account of Aristotelian virtues and well as in Rawlsian Kantianism.5 As for Kant and Rawls, Nussbaum says, “But I do owe to Kant and Rawls, the notion of dignity and liberty and the equal worth of liberty. …The view developed here seeks justice for human beings as such, believing all human beings to be fundamentally equal in worth.” (Nussbaum 1999: 24–27) All laws and social institutions should respect the dignity that all human beings have simply on the basis of being human (Nussbaum 1999: 5). Nussbaum also argues that nation states have “universal obligations to protect and promote human dignity through the international human rights movement and through support for international agencies.” (Nussbaum 1999: 6).
However, Nussbaum’s account allows considerable room both for individual choice and for cultural differences. For example, one can choose to be celibate, to fast, and to ignore play in order to focus on the work that she loves. Human beings should have the capability to choose but they are not required to exercise all the functions. In addition, cultures may differ on what counts as play, how imagination is exercised etc. However, too often Nussbaum argues, respecting cultural traditions is tantamount to treating women unjustly and Sex and Social Justice is rich in examples.
So with this background explanation, let us see how the capability approach can serve as a grounding for the complete range of Werhane’s employee rights. It is clear that any of the rights justified by Walzer are also justified through Nussbaum’s capability approach. The right to freedom seems required by all or nearly all of the 10 capabilities. Freedom is obviously required for bodily integrity, practical reason, affiliation and control over one’s environment. Positive freedom is necessary for what is required under “senses, imagination, thought.” The right to participation can follow from the right to freedom and probably from the capability of affiliation. Fair treatment is not specifically mentioned although non-discrimination which is an element of fair treatment is specifically mentioned under the capability of affiliation. More importantly, if we take fair treatment as roughly equivalent to justice, then Nussbaum’s claim that all human beings should have access to the capabilities is roughly equal to the claim that they be treated fairly. The right to due process follows from the right to be treated fairly. A right to workplace safety follows directly from the capability of bodily integrity as well as control over one’s environment.
The right to a meaningful job is an instantiation of the positive right to freedom because it acknowledges the autonomy, independence, and self-development of employees in the workplace, and that those in the position to do so to assist in this self-development. (Werhane 1985: 134-135)6
Meaningful work as Werhane defines it, does increase the ability to think and use our imagination, helps us develop and achieve a life plan, gives an affiliation that provides self-respect, and gives the worker some control over his or her environment.
This emphasis on the importance of self-development in Werhane’s account fits naturally within the capability approach as does the emphasis on freedom. Working out the implications for self-development in the workplace is a way to provide a robust discussion of a right to meaningful work-something that is missing in the 2004 volume.
The right to privacy includes, but is not defined merely as (1) the right to be left alone (that is the negative right to freedom) (2) the related right to autonomy and (3) “the claim of individuals, groups, or institutions to determine for themselves when, how, and to what extent information about them is communicated to others”. (Werhane 1985: 118)
This general characterization is then followed by a robust account of specific examples of how a right to privacy is to be instantiated in the workplace. A right to privacy is absolutely central in giving a person control over his or her environment. Given the characterization quoted above, it is clear that freedom and the capability of affiliation also serve as grounds for a right to workplace privacy.
Summary
Patricia Werhane has made major contributions to business ethics scholarship in a number of areas. Her work on Adam Smith and employee rights came relatively early in her career. However, Werhane is perhaps best known for her work on mental models. In reacquainting myself with her work and reviewing it, it is clear that her account of the nature of employee rights has changed significantly over the years. The account in Persons Rights and Corporations fits easily into an Enlightenment account where moral rights and employee rights are grounded in human dignity. Employment and Employee Rights presents a theory of human rights consistent with Moral Imagination and Management Decision Making. But there is an obvious tension in Employment and Employee Rights that I attribute to her tendency to move too far in the direction of social construction and hence relativism. In the latter part of this paper, I have tried to show how Werhane can in effect have her cake and eat it too. By endorsing a universal theory of the good as found in the work of Martha Nussbaum, she could lay claim to a universal account of employee rights, while not giving up the insights she has made with respect to the use of mental models and moral imagination in business. The warning that we look at the world through mental models that are often parochial is still well taken. And there is still plenty of room in an account of employee rights grounded in freedom and the capability approach to honor individual choice and cultural tradition. What is not allowed are cultural traditions that violate fundamental rights including fundamental rights in the workplace.