Cheryl Foy and Ken Fredeen on navigating ethical dilemmas in-house
This advice column is intended to support you as you tackle ethical and professional issues. Submit your questions anonymously here.
QUESTION: I’m counsel at an organization. Recently, I was on a popular dating application, and I came across the profile of the general counsel of the organization. The general counsel stated his title and the name of our organization on the dating app. As I read the profile, it disclosed particular sexual preferences of the GC. What are the ethical implications of this scenario?
FREDEEN: This question is both unusual and interesting. Poor judgement and poor taste on the part of the leader. I’m not saying that he is not entitled to his private life. It is that he has chosen to publicly link his personal life to his corporate role, and that is not appropriate.
For starters, there is reputational risk to the organization. I remember the scrambling that was done when the data from a private “dating” space (Ashley Madison) went public in a security breach. It was all about the linkage of the individual to an organization, even though his data was caught up in a data breach. Organizations considered the issue of employee’s judgement and trust, in particular for leaders with teams. Employees have the right to feel safe and respected at work, and the knowledge that a leader was something other than presented does not sit well.
The same holds true for this general counsel: will his team look at him as a leader they trust, respect and even feel safe with? I don’t think so. I used to tell my team members that no matter what they did and where they went, they represented their employer. It is a small and connected world we live in, and they needed to remember that they were the public image of the organization. Put me down as old fashioned.
I suspect that there are policies and rules that would apply here, and that is the best place to start. Some organizations have broad reputational statements which would not necessarily lead to termination for cause but could lead to dismissal. Most organizations have ethics policies, ethics officers and hotlines, which is one place this employee could get guidance on next steps.
Finally, I do not recommend that the reporter speak to the general counsel, unless the relationship is strong and the leader is approachable on such a sensitive topic. I recommend leaving the discussion on judgement, ethics, reputation and leadership in the hands of others.
FOY: I agree with Ken that the actions of the GC demonstrate poor judgment. GCs are clearly fiduciaries of their organizations and bound to act in the best interests of the organization. In this case, it is not in the interests of the organization that its name is associated with deeply personal information about the GC. The GC appears not to have considered the effects of his behaviour on the organization or on his relationship with employees — or quite frankly, for his own credibility and vulnerability in the event of workplace relationship issues.
I am not sure how well many of our workplace policies would address this particular issue, but it’s likely a call to action for us to check.
However, I think we have to acknowledge that both Ken’s approach and mine come from a generational perspective that clearly delineates professional and private lives. Technology and the availability of personal information is changing our world. As we navigate this world in which the lines between our professional and personal selves are blurred by the public or semi-public availability of personal information (including personal photographs) on the internet, and as we begin to see members of Generation Z join the workforce, I believe that these blurred lines will become blurrier. Gen Z-ers (born between 1995 to 2010) are joining the workforce now and they represent a force for personal expression with a focus on being “radically inclusive” and on defending causes related to identity and expression. In my mind, I can hear my 15-year-old teen now telling me that this man should be able to share this information about himself online without professional ramifications. I’m not there yet, but I love this question because it forces us to confront the policy and ethical implications of an internet full of accessible personal information.
Ken Fredeen is managing partner at ZSA In House, a platform created to focus on the challenges, issues and development needs facing general counsel and their teams.
Cheryl Foy is university secretary and general counsel at Ontario Tech University. She provides strategic and tactical advice on matters of governance, jurisdiction, policy and process to all members of the university community.