The courts have drawn that line in recent months in regard to business employees. As yet, they are silent with regard to treatment of personnel in an industry that is self governed and where the individuals are self employed.
There have been several rulings on ADA mental illness cases where the plaintiffs said they should have been given more leeway than others because of the unique health condition from which they suffer -- paranoid schizophrenia in one case and bi-polar disorder in another. The plaintiffs argued that they should be protected from punishment because they suffer from a disease just as an alcoholic or drug user suffers from a disease.
In the cases of Sista v. CDC IXIS, So. District of NY. No. 02-Civ. 3740 (2/15/05) and Mammone v. Harvard College, Mass. Supreme Judicial Court, 446 Mass. 657 (5/12/06), the courts were consistent in their rulings. Egregious misconduct is no excuse under any circumstances and the person should be terminated. A recent criminal case, People v. Reynolds considered the death penalty as punishment for the defendant where the situation was very similar. In Reynolds, the defendant also suffered from paranoid schizophrenia and admitted that he knew he had done horrid wrongs for which he deserved punishment. The judge agreed and sentenced him to death because Reynolds was very congizant of the gravity and reality of his acts.
Employment Industry Code of Ethics
This is leading us to look at the codes of ethics that are promulgated by our various employment industry organizations. There are words that talk about how the member will adhere to the rules. However, in none of the codes that I have reviewed do I see any language about what should be done if the rules are violated. So it appears there are no consequences except loss of membership, which is not really a grave loss if you play out the thought process a bit. Membership can be volulntarily discontinued by a member at any time and for any reason. And if the person is not already a member of the organization (or any of the several in the industry), then the attitude will be a very flippant "So what?"
Additionally, there does not seem to be anything that talks about what to do when a non-member performs an act that is unethical and/or harms some member of the unsuspecting consuming public, be it a candidate or a business of any size. What should be done in a situation like this goes unanswered. Who holds this representative of the employment industry accountable for their malfeasance is a matter that goes silently into the dark of night.
Using Mammone as a Barometer
With many interruptions, I've been reading the Mammone case where the court performs its analysis by discussing one case on which plaintiff heavily relied in arguing that he should not have been fired, Garrity. The court says of Garrity, ". . . we conclude that Garrity applies to all employment discrimination cases brought . . ., regardless of the type of handicap underlying the workplace misconduct . . ."
The court looked very carefully at Garrity and discussed the circumstances that brought that case under judicial review. It seems Mammone should not have chosen Garrity as his key argument. Although the reading of the above cite seems to support the argument that a person with a handicap is protected, it reasoned in just the opposite manner. The description was:
Garrity suffered from alcoholism. As part of her employment, she was asked to distribute "chits" to passengers, which could be exchanged for free drinks during flight. When some passengers declined the chits, Garrity, irresistibly compelled by her disease, kept them for herself. After her shift, she boarded a United Airlines flight, paying a significantly reduced employee fare. On the flight, Garrity exchanged the chits for free drinks, "became intoxicated and began drawing attention to herself and to the fact that she was a United Airlines employee." . . . Garrity "demanded excessive service and attention" and complained to and in front of passengers "about how United 'screws us.'" . . . United Airlines terminated Garrity for "violating company policies by accepting 'drink chits' from customers, using those chits while flying on a United pass . . . and for becoming intoxicated" while on the flight.
The court spoke of right to terminate in a situation where there is workplace misconduct (emphasis supplied) and said in one of its citations,
("'[A]n employer . . . must be permitted to terminate its employee on account of egregious misconduct, irrespective of whether the employee is handicapped.' . . . [A] handicapped employee who engages in conduct significantly inimical to the interests of his employer and in violation of the employer's rules . . . is not a 'qualified handicapped person' within the meaning of G. L. c. 151B").
What Manner of Enforcement Where There Is No Employer
In the Garrity case, as with Mammone and Sista, there was an employer, a business, that had in place a code of conduct and could enforce the letter of the employee handbook by terminating the employee for going against the rules. However, a solo practitioner has no such rule book. And if they are not a member of any of the various employment industry associations, they have nothing except their conscience to hold them to any standard of good conduct. In a situation where there is misconduct -- of any type -- who should enforce the rules of conduct?
A Possible Model
The Direct Selling Association has a Code of Ethics that is quite comprehensive. It includes a definition of how to file a complaint for misconduct and the procedure to be used in that instance. If there are any other Codes that have similar provisions, I'd like to know of them. But that's the Direct Selling Association and not any of the employment (or recruiting and staffing) organizations. Still, sales has such a common denominator in regard to recruiting, it makes one wonder why the DSA's code was not used as a model by any of SHRM, NAPS, CPS, or ASA.
Online Conduct and Representation of Industry
Additionally, there is online life. The sole practitioner has a unique space in the employment industry. They are a representative of their own self. Simultaneously, they are a representative of the industry. Although there are times when it seems as though we are simply a lone individual sitting quietly with our thoughts, of one sort or another, in front of a computer, that is not really the case. It may seem we can say and do whatever we want. It is very easy to forget that although we keyboard our words in the solitude of our home office at our computer, the words are going out to the Web where however we conduct ourselves is a matter of public knowledge and scrutiny. We are our own representative, creating our own brand and reputation. And where that repesentation is harmful to the standards of the industry, who steps in and enforces its rules?
But that question presumes that there is an industry standard, a norm, a bar that is held at a certain elevation and everyone in the industry is aware of it, is trained about it, is held to that standard in their doing all manner of business, and completely understand that standard and course of doing business.
Perhaps we should just avert our eyes when one in the employment industry deviates from what is our personal standard of conduct. Unfortunately, that act is a form of tacit confirmation of behavior. It's feeding and rewarding misconduct. But then, if we reward and commend egregious behavior, are we then changing the standards by which industry "professionals" should be held? After all, leading by example is a very real management concept that is used in all forms of life.