Managers Confront Competing Practical, Legal, and Ethical Claims: A Comprehensive Teaching Case

• Published date: 01 January 2009
• Author: Tony McAdams
• DOI: http://doi.org/10.1111/j.1744-1722.2009.00061.x
• Date: 01 January 2009

Managers Confront Competing

Practical, Legal, and Ethical Claims:

A Comprehensive Teaching Case

Tony McAdams

n

I. INTRODUCTION

Law classes help reveal the successes of the American legal system. Stu-

dents observe that the law is honorable, workable, and effective. At the

same time, law classes offer the opportunity to look at those situations

where the legal system sometimes struggles to achieve its justice goals. Fair,

efficient conflict resolution is, of course, a primary goal of the law, and

ordinarily that objective is achieved. Students certainly need to learn that

lesson, but they also need to think about those situations where the law

labors to provide a fully satisfactory resolution of the competing claims.

Business students, in particular, benefit from thinking about how

they will manage those moments when the law raises competing demands.

In most cases, the law provides a useful, just path through what may ini-

tially appear to be an insoluble conflict. In some instances, however, that

path may not yet be fully developed, or it may involve a particularly diffi-

cult situation that is resistant to thorough reconciliation. This teaching case

examines an employment law situation that illustrates both how legal ex-

pectations sometimes produce workplace conflicts, and how the law also

works to provide a route through those conflicts.

II. EMPLOYMENT LAW CONFLICTS?

Critics argue that managers sometimes face situations where obeying

one law risks breaking another. They label these ‘‘no-win,’’ ‘‘Catch-22,’’

r2009, Copyright the Author

Journal compilation rAcademy of Legal Studies in Business 2009

87

Journal of Legal Studies Education

Volume 26, Issue 1, 87–108, Winter/Spring 2009

n

Professor, Management Department, University of Northern Iowa.

‘‘caught between a rock and a hard place,’’ ‘‘Hobson’s choice’’ dilemmas as

‘‘Sued If you Do, Sued If You Don’t Cases.’’

1

An occasional jurist

2

along

with scholarly commentators

3

have expressed similar concerns. Steven

Bednar argues that our complex web of employment law protections

sometimes effectively precludes compliance:

Congress, state legislatures, and the courts have now created a complex galaxy

of employment laws which not only overlap, but frequently impose confusing

and sometimes conflicting obligations. As the obligations and prohibitions on

employers increase, the path of legal compliance becomes precariously narrow.

In some instances, there is no path left at all. In these situations, employers

find themselves in double-bind dilemmas–the ‘‘Catch 22’s’’ of the law. The

action necessary to comply with one law, if done incorrectly, could violate an-

other.

4

1

Walter Olson, Occupational Hazards: Why Sued If You Do, Sued If You Don’t Is the New Rule in

Employment Law, REASONONLINE, May 1997, available at http://www.reason.com/news/printer/

30261.html.

2

Jordan v. Alternative Res. Corp., 458 F.3d 332, 355 (4th Cir. 2006) (King, J., dissenting).

Judge King stated:

As a result of today’s decision, employees in this Circuit who experience racially harass-

ing conduct are faced with a ‘Catch-22.’ They may report such conduct to their employer

at their peril (as Jordan did), or they may remain quiet and work in a racially hostile and

degrading work environment, with no legal recourse beyond resignation. Of course, the

essential purpose of Title VII is to avoid such situations.

Id.

3

See, e.g., Stephen F. Befort, Pre-Employment Screening and Investigation: Navigating Between a

Rock and a Hard Place,14H

OFSTRA LAB. L.J. 365 (1997); George W. Dent, Civil Rights for

Whom?: Gay Rights Versus Religious Freedom,95KY. L.J. 553 (2006-2007); Laura M. Johnson,

Note, ‘‘Whether to Accommodate Religious Expression that Conflicts with Employer Anti-Discrimination

and Diversity Policies Designed to Safeguard Homosexual Rights: A Multi-Factor Approach for the

Courts,38C

ONN.L.REV. 295 (2005); Debbie N. Kaminer, When Religious Expression Creates a

Hostile Work Environment: The Challenge of Balancing Competing Fundamental Rights, 4 N.Y.U. J.

LEGIS.&PUB.POL’Y81 (2000/2001); Michael D. Moberly, Bad News for Those Proclaiming the

Good News?: The Employer’s Ambiguous Duty to AccommodateReligious Proselytizing,42SANTA CLARA

L. REV. 1 (2001); Christine R. Williams, Recent Development, Peterson v. Hewlett-Packard: Ex-

posing Title VII Inconsistencies in Its Protection of Employees from Workplace Harassment, 83 N.C. L.

REV. 776 (2005).

4

Steven C. Bednar, Employment Law Dilemmas: What to Do When the Law Forbids Compliance,12

BYU J. P UB.L. 175, 175 (1997). Bednar criticizes competing employment regulations, but also

provides guidance about navigating those conflicts. Id.

88 Vol. 26 / The Journal of Legal Studies Education