What's Good for a "Working Mother" May Not Be Good...

...for working women in general.

Not if the women in question find themselves stuck in a pink-collar ghetto.

That, at least, seems to be a take-away from this week's ruling that Novartis Pharmaceuticals -- a regular on Working Mother magazine's "100 Best Companies to work for" -- must pay $250 million in punitive damages for discriminating against female sales representatives.

The jury decision for the class-action case opens the door to additional compensatory damages, which some reports have estimated could run as high as $1 billion. The jury awarded $3.3 million in compensatory damages to the 12 women who testified, but there are nearly 5,600 others who fall into the covered class.

In a Reuters piece that appeared in yesterday's New York Times, the president of Working Mother Media was quoted as saying that the magazine's criteria for its award relied on programs such as flextime, telecommuting, and paid maternity leave.

On its website, here's what Working Mother says "we love" about Novartis:

Being there for the kids isn’t the only reason this East Hanover, NJ–based pharmaceutical company offers its employees flexible schedules. “I’ve used my arrangements to allow more time for friendships, community activities, fitness and personal interests,” says mom Laurie Letvak, an MD who serves as global program head for its Glivac and Tasigna division and now compresses her weeks after years as a part-time worker. Jobsharers, telecommuters and other flex fans can rely on the firm’s easily customizable child-care offerings, including discounts on fulltime care at national chains with budget-friendly backup (just $15 to $25 per day) and in-home sick care ($5 per hour). Impressively, anyone who saves $4,000 in a pretax child-care account is gifted another $1,000 by the company. Summer camp fairs and college coaching programs help make life a little easier for the parents of older kids.

Which is all well and good ... except that the lawsuit claimed Novartis systematically discriminated against women in pay and promotion, and was especially discriminatory against women who got pregnant.

As Ann Woolner notes caustically in her article for Bloomberg Businessweek, "You can't keep the numbers up when you're out on maternity leave, and forget about staying on a management track."

"Women who sold pharmaceuticals for Novartis said that some of the doctors to whom they would pitch products expected something on the side. They groped, they propositioned, and one fellow stuck his tongue in the ear of a startled sales rep," Woolner reports.

The support that the women reps got from the company was less than stellar: "When one of the women complained, her supervisor, also a woman, reminded her that the physicians she saw were valuable to Novartis."

I think we can take that to mean that sales reps were not valuable.

The jury's verdict is one of the largest ever in a gender discrimination case.

Abigail Field at Daily Finance, following Susan Beck at Am Law Litigation Daily, thinks that might be because the jury realized that Novartis, and its lawyers, "just didn't get it." They both note that, in Field's words, the "defense's closing argument was laced with sexist stereotypes and must have left jurors with the impression that the company really didn't respect women." (Field's article is here; Beck's, which requires premium subscription to access, is here.)

That Novartis "didn't get it" may be one reason why the company chose not to settle out of court, as is more typical. (Or it could just be that, in comparison to Novartis' core net income in 2009 of $10.3 billion, $250 million doesn't sound like much.)

Among the most damning "dont' get it" quotes from the closing argument of Richard Schandig, a partner with Vedder Price: "I've never seen anybody cry so much on the witness stand in my life ... She didn't have very much to cry about ... It's like she had been knifed. Honestly. What was wrong with this woman? She was so fragile."

Best of all, Schandig referred to one witness as "that little blond that came up here from Texas."

No, this wasn't last week's episode of Mad Men. It was, maybe, a reminder that we still have a long way to go.

In a Rescue, What's the First Thing You Do

... after the actual physical rescue?

If your answer is, "Cover your a*& and have the victims sign release forms," you too can be an oil company executive.

We have all been following the story of the Deepwater Horizon blowout and subsequent oil spill. The economic devastation to Gulf Coast communities, the environmental damage, the human toll, the apparent lack of oversight by the federal Minerals Management Service -- there's a lot here for an ethicist to absorb.

I'd like to concentrate on just one aspect of the story. Here's the scenario:

The Deepwater Horizon oil rig has just blown up and sunk. Survivors, traumatized by the deaths and disaster they have witnessed, want nothing more than to go home and be able to assure their loved ones that they are indeed OK. But before they can do that ... there are forms to sign.

The Damon Bankston, a cargo boat attached to the rig when the blowout occurred, picked up survivors from lifeboats.

What happened next? According to New York Times reporters Ian Urbina and Justin Gillis,

The men were kept aboard the rescue ship, in the middle of the ocean, for a full 12 hours. Worse than the wait, [the interviewed survivors] ... said, was being forbidden to call their families. The men were told that the Coast Guard wanted to conduct interviews before the workers spoke to family or anyone else.

Rumors spread that the BP executives who had visited the rig were up on the Bankston’s bridge using the ship’s radio or a satellite phone to call home. (Complete article is here.)

NPR correspondent Joseph Shapiro interviewed one young survivor, who told him that when the Coast Guard arrived, papers were handed out, and they were told, "You need to sign these. Nobody's getting off here until we get one from everybody ... And then at the bottom it says something about ... this can be used as evidence in court...."

Even when the survivors got back to land, their ordeal wasn't over. The group were taken first to a hotel to meet with representatives from Transocean (owner of the Deepwater Horizon rig) and the Coast Guard. Urine samples for a mandatory drug test were collected, and the representatives handed out forms which the exhausted survivors were told to initial, which said, "I was not injured as a result of the incident or the evacuation." (Click here for the complete NPR piece)

According to the Associated Press, an attorney for 10 of the Transocean workers said that, "These men are told they have to sign these statements or they can't go home. I think it's pretty callous, but I'm not surprised by it."

Survivors' families waited at least 12 and in many cases more than 24 hours before receiving word that their husbands, fathers, brothers, and sons were alive.

Is this what you'd call ethical?

Me, neither. These men have been traumatized by a disaster, and the company shows its concern for them by traumatizing them all over again.

When in Rome, Should You Do as the Romans Do?

Not according to Economist columnist "Schumpeter", who argues in this week's edition that "when in Rome, behave like a Swede."

The columnist makes the case that doing the right thing is smart business.

I'd really like to think that people do the right thing because it's the right thing to do.

But I know that there are lot of folks out there who think that, in the "jungle" of business, it's eat or be eaten, and if that means you have to slip a couple of bills into someone's hands or cut some other ethical corners, well, that's just part of being a tough business person.

In other words, it's a macho thing.

Sadly for the macho among us, hard analysis indicates that they're wrong.

"Schumpeter" points to research by Wharton School economist Philip Nichols and by World Bank researchers David Kaufmann and Shang-Jin Wei; their paper, "Does 'Grease Money' Speed Up the Wheels of Commerce?", is available online here.

I know what you're thinking: What do those eggheads know?

Well, among other things, they know that "companies that pay bribes actually end up spending more time negotiating with bureaucrats. The prospect of a payoff gives officials an incentive to haggle over regulations. The [World Bank] paper also found that borrowing is more expensive for corrupt companies, probably because of the regulatory flux."

Moreover, the "hidden costs of corruption are almost always much higher than companies imagine. Corruption inevitably begets ever more corruption: bribe-takers keep returning to the trough and bribe-givers open themselves up to blackmail. Corruption also exacts a high psychological cost on those who engage in it..."

Our macho business guy is snorting here, I know: "High psychological cost? Only if they're spineless wimps to begin with."

Or not.

Still, if those reasons don't convince you, how about this?

"Schumpeter" also points out that "the likelihood of being caught is dramatically higher than it was a few years ago."

Whistle-blowers have more ways of getting information out, and getting it in front of a lot of people. Prosecutions are up. Prison sentences are getting longer and fines are getting bigger.

So if you aren't impressed with the "do the right thing because it's the right thing" argument, ask yourself: How would you have liked to be the Siemens CEO, having to explain to your shareholders why you had to pay $1.6 billion in American and German fines to settle bribery allegations? (click here for a Guardian story from December 2008 on the settlements)

Could We Please Stop Talking about "Clean Coal"?

... or "cheap coal" for that matter.

The fact is, it's neither clean nor cheap.

Coal-fired electric power plants might look like a cheap way to produce energy, but only if you concentrate on how much a ton of coal will cost you on the open market today (for what it's worth: as of last week, according to Energy Information Administration, the highest Btu coal, from Northern Appalachia, would run you $62.75).

Make no mistake, there's no way to make that power clean, however.

And when you count more than just the market -- don't get me started on the impact of mountain-top removal -- coal's not cheap, either.

As if the disaster at the Massey Energy's Upper Big Branch mine in West Virginia on 6 April wasn't enough, there's now word that two miners are missing following a roof collapse at Alliance Resource Partners' Dotiki Mine in Kentucky (read news reports from the Associated Press here and from Bloomberg here).

The Upper Big Branch catastrophe killed 29 miners, the worst US mining disaster in four decades. And now two more men won't be coming home.

Does that sound "cheap" to you?

Business Week has an excellent analysis up on the sorry state of regulation, at least as far as protecting miners is concerned. The 2006 Mine Improvement and New Emergency Response Act (The MINER Act -- get it? Oy. I hate cutesy acronyms.) came in the wake of another catastrophic West Virginia mine disaster, at the Sago Tmine in which 12 miners were killed.

According to the article: "The act raised the maximum penalty for safety violations, forced mine operators to build emergency underground shelters with oxygen, water and food, and required installation of more modern communication devices." That all sounds good, doesn't it?

Let's take a closer look.

The Dotiki mine, according to news reports, was ranked seventh in the number of "significant and substantial" violations since 2009 (for data junkies, the website of the Mine Safety and Health Adminstration is a great resource). A "significant and substantial" violation means that the MSHA inspector considers that "there exists a reasonable likelihood the hazard contributed to will result in an injury or illness of a reasonably serious nature" (click here for full MSHA document).

Why would a mine that has such a record be operating?

As Business Week's Jeff Plungis and Holly Rosenkrantz report, "While the new law did result in more citations and higher fines, the Labor Department's Mine Safety and Health Administration in 2007 added 10 criteria that inspectors had to meet before a mine could be shut down for a 'pattern of violations'... Only one mine has ever been ordered closed for a pattern of violations... That order, issued in November 2008 to a Patriot Mining LLC mine in Virginia, was revoked when one of the violation findings was withdrawn..."

Does that sound "clean" to you?

So miners keep getting injured and dying, and fines have come to be seen as a cost of doing business. And we don't really notice until there's a major disaster, like Upper Big Branch (the Dotiki roof-fall is not leading most of today's news reports).

Meanwhile, by challenging citations (there's a helpful link right on MSHA's home page: "How to contest citations"), the industry pushes off the date when penalties might have to be paid.

According to Business Week, the "backlog of challenged cases ... has grown to more than 16,000 today from fewer than 1,500 in 2005" (emphasis added).

The current regulations don't even have baby-teeth; all they can do is gum a violator. It's time to stop pretending that miners' lives are valuable, and time to start acting as though we really believed that. A respectful minute of silence is good; tough legislation would be much better.

How "Informed" Should "Informed Consent" Be?

As informed as you can possibly make it, of course.

I've been thinking about "informed consent" a lot lately, ever since I read the first articles and reviews about "The Immortal Life of Henrietta Lacks". Rebecca Skloot's nonfiction account of the culturing of cervical cancer cells taken from Lacks -- without her permission -- in 1951 is transfixing. (New York Times book reviews are here and here; a "health" section article is here)

Skloot's book reminds us just how recent some concerns about informed consent are. Henrietta Lacks died in Johns Hopkins Hospital's "colored ward"; she and her family were never asked about the research use of her cells, nor were they ever compensated financially (as reviewer Lisa Margonelli noted, "HeLa [as the cells are known, from the first two letters of Lacks' first and last names] has helped build thousands of careers, not to mention more than 60,000 scientific studies, with nearly 10 more being published every day...").

Skloot's book (quoting Margonelli again) criticizes "science that insists on ignoring the messy human provenance of its materials. 'Scientists don't like to think of HeLa cells as being little bits of Henrietta because it's much easier to do science when you dissociate your materials from the people they come from,' a researcher named Robert Stevenson tells Skloot in one of the many ethical discussions seeded throughout the book."

We like to think things have changed since the early '50s. Not only would Ms. Lacks no longer have been required to stay in the hospital's "colored ward", but we would certainly ask her permission today. Anyone who has been treated for almost anything these days is familiar with the "sign here" routine of consent forms.

But how much have things really changed?

Today's Times carries an article by Amy Harmon on the payment of $700,000 by Arizona State University to members of the Havasupai tribe in settlement of complaints about the misuse of tribal members' blood samples. The university will also return blood samples and provide other forms of assistance to the tribe.

According to the article, members of the Havasupai tribe provided blood samples to university researchers in 1990, "in the hope that they might provide genetic clues to the tribe's devastating rate of diabetes." A broad consent form was prepared, and donors signed that form. Later, the tribal members learned that the blood samples had been used to study for genetic variants that would be linked to diabetes, but also for schizophrenia, metabolic disorders, alcoholism, and more. Studies were published reporting "a high degree of inbreeding" and that "the tribe's ancestors had crossed the frozen Bering Sea to arrive in North America", and more.

All of it interesting research, no doubt, and some of it valuable, but all of it unethical.

The geneticist responsible for the original studies, Dr. Therese Markow, now a professor at the University of California, San Diego, insisted that she was "doing good science", and that those who have complained "failed to understand the fundamental nature of genetic research, where progress often occurs from studies that do not appear to bear directly on a particular disease."

The consent forms were purposely broad, Dr. Markow said, because "English was a second language for many Havasupai, and few of the tribe's 650 members had graduated from high school. They were always given the opportunity to ask questions, she said, and students were also instructed to explain the project and get written and verbal consent from donors."

Should I list all the things that are wrong with the previous paragraph? Well, for starters:

• If you are genuinely concerned about the English-language skills of your prospective donors, how about having the forms translated into their native language, or at the very least providing skilled translators?
• If you're planning on using the samples for more than one test, tell the prospective donors. Maybe you don't know where the research might take you. Tell them that, too.
• Is the Havasupai culture one that encourages asking questions of people perceived to hold power or not? If not, you could ask, "Do you have any questions?" until the cows come home, and never hear any. That wouldn't mean that there were no questions.

It was only by sheer accident that the misuse of Havasupai blood samples was discovered, according to the Times article. One tribe member, who had attended college, was visiting at the University and was invited to a student's doctoral presentation. The research on which that dissertation was based was derived from research with the Havasupai DNA. The tribal member "understood little of the technical aspect, but what she heard bore no resemblance to the diabetes research she had pictured when she had given her own blood sample years earlier."

During the post-presentation question period, she asked whether he had permission to use the donated tribal blood for this purpose.

"The presentation was halted. Dr. Markow and the other members of the doctoral committee asked the student to redact that chapter from his dissertation."

Could anything be more damning?

But it's not just cultural and language barriers that all too often make "informed consent" anything but. There's also timing.

When a friend underwent surgery a few years ago, just before being wheeled into the operating room, already hospital-gowned and mentally prepared, he was handed a clipboard and pen to sign the "consent form" permitting the surgeon to use tissue removed in the operation for research purposes.

If he hadn't signed, the operation wouldn't have gone forward. So of course he did. But let's not pretend that his experience was "informed consent."

Research needs to be done. But not by trampling over the human subjects who make that research possible. Even if it's just in the name of "efficiency".

Raise My Taxes, Please!

I'll be the first to admit that 2009 was not a great year, incomewise. But -- on the optimistic assumption that 2010 will be better -- I want to be on record, the day before Tax Day, saying, Raise my taxes, please.

In this, happily, I'm not alone.

NPR ran a nice piece on Morning Edition today (click here for print version; audio is here) on "some of the rich ask for higher taxes." Among the people quoted is Jeffrey Hollander, a co-founder of Seventh Generation eco-products, who says that so-called trickle-down economics is "really about keeping money in the pockets of people who already have too much money."

Hollander and others are members of the Responsible Wealth Project of United for a Fair Economy, which (to quote their website), holds that "concentrated wealth and power undermine the economy, corrupt democracy, deepen the racial divide, and tear communities apart."

Applause!

In fact, that position makes so much sense to me, I have to stop and ask -- why on earth isn't every American a member of United for a Fair Economy?

I blame the "bootstraps" myth -- the idea that any American can, purely by his or her own effort, rise from the deepest poverty to the greatest wealth.

It's a great story, but it's a myth.

In fact, it's the most dangerous myth I know.

No one does it alone. Not only are there innumerable people who propelled Joe Bootstraps on his way (whom he is now conveniently forgetting -- hello, Mom and Dad? Third-grade teacher Mrs. Benton? Boy Scout leader Mr. O'Hanlon? Rabbi Shlomo Ereritz? High-school science teacher Mr. Yee? You get the idea.), there are also innumerable institutions of law and government that made it possible for Joe to succeed.

Would Joe have succeeded without the trust that's embedded in a working economy grounded in the rule of law?

His first customers could be confident that if he were merely a flimflam artist, sooner or later regulators would find him out and he would be prosecuted and at least a portion of their lost funds would be returned.

His first employees could be confident that, were his interview promises to prove false, there was some legal recourse to which they could turn.

His first suppliers could be confident that, should Joe neglect to pay them promptly, they too had legal recourse.

You get the idea.

I try to keep good company, so I'm with Oliver Wendell Holmes Jr. on this: "Taxes are the price we pay for civilization."

I want more civilization, so go ahead, Tax me more.

You Wouldn't Buy a Car Without a Warranty; How About a Hip?

Let's say I'm a car manufacturer, and a prospective customer is asking about what sort of warranty I'll be offering on my new XY7200. Here's my reply:

"The longevity of a vehicle depends on a great many factors beyond my control, including the driver's skill, the types of driving done, and the owner's adherence to break-in time restrictions and the regular maintenance schedule. Because of the multifactorial nature of the survival of a vehicle, no, we really can't offer any kind of warranty."

So... would you buy that spiffy new XY7200?

I didn't think so.

I wouldn't either.

Such a scenario could never play out in the big-ticket world of automobiles, or in the small-ticket world of appliances like toaster, TVs, and kitchen mixers.

But in orthopedic implants? Oh, yeah.

Today's New York Times has an excellent article by Barry Meier on how the "health system bears [the] cost of implants with no warranties."

The million or so artificial hips and knees implanted each year in the United States ... are normally not guaranteed. Instead, the costs of replacing implants that fail early because of design or mechanical problems -- devices that sell for as much as $15,000 each -- are largely paid by Medicare, insurance companies and patients.

Implants can fail for many reasons, but if only a small percentage of them fail prematurely because they are substandard, the costs to taxpayers, policyholders and patients can run into tens of millions of dollars each year, health care experts estimate.

Orthopedic producers may sometimes even profit from the failures because they sell the replacements at full price.

Anyone else see a problem with this picture? [Read the full article for, among other things, the comment by Zimmer Holdings on why they don't guarantee their products, which I only barely parodied above.]

There are serious financial concerns here -- at a time when everyone is arguing about how best to rein in healthcare costs, this seems like a good place to start -- but there are also serious ethical concerns.

The system, as currently constructed, actually provides incentives for building something badly. Why should I care if my products are substandard if I don't have to bear the cost? If, indeed, there is a financial incentive to do so? (Yes, I know, we'd like manufacturers to build good products because it's the right thing to do....)

To add insult to injury, accord to Meier's piece, at least one manufacturer does offer warranties on certain of its knee, hip, and shoulder implants (including a "free of charge replacement" if one fails) ... just in Great Britain, and not in the United States.