To Serve and Inspect: The Tragedy of Employee Well-being in the Age of Foucault's Discipline

• Author: Kendy Hess
• Position: Brake Smith Associate Professor of Social Philosophy and Ethics at the College of the Holy Cross, and the Director of the Ciocca Center for Business, Ethics, and Society
• Pages: 763-785

CRITIQUES OF REGULATION

To Serve and Inspect: The Tragedy of Employee

Well-being in the Age of Foucault’s Discipline

KENDY HESS*

ABSTRACT

A fundamental task of the government is to “secure generally the comfort,

safety, morals, health, and prosperity of its citizens . . . by insuring to each an

uninterrupted enjoyment of all the privileges conferred upon him or her by the

general laws.” This authority is commonly known as the police power.

Sometimes the government regulates its citizens directly in pursuit of these

goals, but here I explore the implications of a different technique. It is becom-

ing increasingly common for the government to impose the responsibility inher-

ent in the police power on business enterprises, making firms legally liable for the

health and well-being of their employees. I suggest here that implementing such reg-

ulations, in which one entity (the firm) is made liable for the well-being of another

(the employee) initiates an unfortunate progression. After introducing Foucault’s

panoptic theory of discipline, I draw on developments in health and safety regulation

and workplace climate regulation to suggest that we should heed the warning inher-

ent in Foucault’s work. When the government makes one entity liable for the

well-being of another it introduces a dangerous logic into workplace management,

leading to the near-inevitable exposure and exploitation of the very people the gov-

ernment was trying to protect.

TABLE OF CONTENTS

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 764

I. DELEGATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 765

II. DISCIPLINE .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 770

III. IMPACT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 775

* Kendy M. Hess is the Brake Smith Associate Professor of Social Philosophy and Ethics at the

College of the Holy Cross, and the Director of the Ciocca Center for Business, Ethics, and Society. Dr.

Hess has a PhD in Philosophy from the University of Colorado, a Masters from Northwestern

University, and a JD from Harvard Law School. She teaches ethics and political philosophy (with

emphases on the environment and business), and her research currently focuses on the moral agency and

obligations of corporations. © 2021, Kendy Hess. Dr. Hess would like to thank participants at the Center

for Values and Social Policy (University of Colorado) and the Ethics of Regulation Symposium

(Georgetown Institute for the Study of Markets and Ethics) for insightful commentary and discussion.

763

IV. AMELIORATIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 777

CONCLUSION . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 783

INTRODUCTION

“Nature smiles at the union of freedom and equality in our utopias.”

– Will and Ariel Durant

1

One of the fundamental tasks of the government is to “secure generally the

comfort, safety, morals, health, and prosperity of its citizens.”

2

Setting aside the

rather troubling mention of morals, the rest of the task is generally accepted,

albeit under widely differing interpretations.

3

This “police power” is both an obli-

gation and an authorization; the need to fulfill this obligation provides justifica-

tion for much, if not all, legislation and regulation. Sometimes the government

directly regulates its citizens through exercise of the police power, but I aim to

explore the implications of a different technique. It is increasingly common for

the government to delegate both the obligation and the authority of the police

power to business enterprises in their roles as employers, making firms liable for

the comfort, safety, health, and well-being of their employees. Confronted with

the need for precise manipulation of individual activity, firms turn to the familiar

mechanism of discipline.

I begin by identifying two concerns with this regulatory delegation. The first,

introduced in Section 1, is that such delegation attempts to achieve political ends

without any of the constraints or protections that usually accompany political

action. This is problematic even when the ends to be achieved are appropriate—

e.g., comfort, health, and safety (especially safety and freedom from bullying and

harassment in the workplace). The second, introduced in Section 2, has to do with

the disciplinary apparatus that employers typically use to achieve these ends.

Foucault argued convincingly that discipline is far more insidious than is gener-

ally recognized, and this section introduces his panoptic theory of discipline and

his explanation of how discipline dominates and exploits by its very existence.

Discipline is grounded in an authority’s ability to place subjects in a “field of

visibility.” Section 3 reviews current employer surveillance practices to show that

this field of visibility has expanded and intensified. This growth—surpassing any-

thing Foucault encountered—exacerbates the exploitative impact he described.

1. WILL DURANT & ARIEL DURANT, THE LESSONS OF HISTORY 20 (1968).

2. Police Power, BLACK’S LAW DICTIONARY 1156 (6th ed. 1990). See also Keystone Coal

Association v. DeBenedictis for the explanation that “the police power, is an exercise of the sovereign

right of the Government to protect the lives, health, morals, comfort and general welfare of the people.”

480 US 470, 503 (1987) (quoting Manigault v. Springs, 199 US 473, 480 (1905)).

3. Liberals, libertarians, conservatives, and progressives would agree, for example, that the

government has an obligation to protect the health of its citizens. They would simply disagree

(vehemently) regarding the degree of involvement, the mechanisms to be used, and the ultimate source

of the obligation.

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