Korach 5767 — God save the whistleblowers
At the opening of parshat Korach, this week’s Torah reading, Moses and Aaron, two brothers, have consolidated all the significant political and religious power to themselves. Moses is the temporal power – seemingly self-appointed President for life – and Aaron is the religious power, appointed, not elected, high priest for life. They have declared that the prestigious office of high priest, loaded with perks, is to be the hereditary privilege of Aaron’s sons, forever.
In the face of this seeming injustice, a bold whistleblower, Korach, calls together the people, who until this point have been acting much like sheep, to point out this injustice.
In a showdown where Moses called on an even higher authority, God, Korach and his band were swallowed up by a great earthquake –“they, and all that belonged to them, went down alive into Sheol.”
Oops. No wonder people can be reluctant to be whistleblowers. What was it that Korach did wrong?
Well to start with, I understand that this was not REALLY a case of whistleblowing – Korach, after all was trying to lead a rebellion, which is more than just letting people know that something fishy was going on.
But he was certainly guilty of engaging in lashon hara. He was speaking ill of Moses and Aaron. But there are exceptions to the rules against lashon hara – times when it is not considered “lashon hara,” improper speech, but rather is permissible.
Rabbi Yisrael Meir HaCohen Kagen, the Chofetz Chaim, lists seven conditions that should be met prior to reporting wrongdoing to someone else:
1) It should be something he saw himself, not based on hearsay;
2) He should reflect carefully that he is certain the behavior he saw met the requirements of being considered theft or damage;
3) He should first gently rebuke the wrongdoer;
4) He shouldn’t make the transgression greater than what it really was – don’t exaggerate;
5) He should be clear about his motives – that this is being done to benefit the one who was sinned against, and that the one who is reporting the matter is not going to benefit from the damage he is about to inflict to another, or that he is doing it because he hates the transgressor;
6) If he is able to accomplish the effect through some other means without having to engage in lashon hara, he should do so, and not speak of the matter;
7) His speaking about this should not result in greater damage to the transgressor than if the matter had come before a bet din.
Korach clearly failed to meet several of the Chofetz Chaim’s requirements. In the first place, he had his facts wrong. Moses and Aaron were not self-appointed – they HAD been appointed by a higher authority: by God. Furthermore, there was no damage: Moses and Aaron did a tremendous job of leading the people during a very difficult time.
And of course, Korach’s motives were all wrong: he was not complaining out of a concern for other people, but rather he was complaining because he wanted to benefit himself. He wanted some of the glory. And so his effort at whistleblowing was doomed to failure.
What I want to explore this morning is not just when is it permissible to report wrongdoing, but rather, when is there a REQUIREMENT to report wrongdoing. Earlier this week I was in New York for a meeting of the Conservative Movement’s Committee on Jewish Law and Standards, where I presented a teshuva, a Jewish legal opinion, called “Whistleblowing: The Requirement to Report Employer Wrongdoing.” You will be relieved to know that I am not planning on reading all 14 single spaced pages with 41 footnotes to you this morning. However, I do want to share a few of the most important conclusions.
We all know that saving lives is one of the highest values in the Jewish tradition. Pikuach nefesh docheh et hakol – saving lives overrides all other commandments, except for the three sins of murder, sexual transgressions, and public idol worship. And unfortunately, there has been no shortage of cases of corporate wrongdoing that have led to the loss of life.
In the 1960s, Ford Motor Company began working on an economical design to compete with inexpensive imports, like the Volkswagen Beetle. The Ford Pinto was designed with very stringent cost goals in mind. Engineers working at Ford knew there was a problem with the gas tank. They estimated that over the life of the production run of the car 180 people would be killed by exploding gas tanks from rear end accidents. To fix this problem would’ve cost $11 per car—a total of $137 million over the projected production run of the car. Ford accountants calculated that each of those excess 180 deaths would cost the company a $200,000 settlement. Adding in settlements for injuries, and costs for making repairs to cars, they calculated that it would only cost the company $49.5 million to leave the defect in. Ford management decided it was therefore cheaper to let people die than to fix the problem. 27 people were burned to death in Ford Pintos before the lawsuits and resultant publicity caused the Department of Transportation to order a recall of the 1.5 million Ford Pintos then on the streets. Which of course ended up costing Ford far more than the original fix.
Talk about a case where we wish there had been a whistleblower! What do you think would have happened if the New York Times had learned about Ford’s crass calculations before the car
went into production? What if the information were revealed after the first one or two deaths from exploding gas tanks? Many people could have been saved from what must have been a truly horrible way to die – trapped inside a car that was a blazing inferno. I wish every engineer and manager who had been involved in that decision could have been forced to pay a condolence call to the family of each of the 27 people who died before the recall.
What would you have done if you were an engineer working on the Pinto and knew about those calculations? Reporting that information to the public would surely result in the loss of your job. More than that, it would undoubtedly make you a pariah within the automotive industry – effectively, your career as an automotive engineer would be over. Would you be willing to do that to save the lives of 180 people you don’t know? 180 people who were nothing but statistics to you?
The people who concealed this information from the public violated no law. Companies routinely make calculations trading off the cost of safety improvements against the numbers of lives saved. But is what Ford executives did ethical?
I argue that the Jewish tradition would say an engineer who had that information would be obligated to make it public, even at a substantial cost to himself. As Charles Harary wrote in an article on the website jlaw.com, “Saving the life of another Jew takes precedence over any monetary interest. The Torah commands, "lo ta’amod al dam re’echa," "thou shall not stand idly by the blood of thy neighbor." This verse obligates all Jews to be Good Samaritans by commanding them to rescue another Jew in distress. This obligation is so fundamental that a person must go to any extent necessary in order to save the life of a fellow Jew. Refusing to do so is considered a transgression.”
To say that we are only concerned about the life of Jews would be a chillul Hashem, a desecration of God’s name. Surely all of us – Jew and Gentile alike – are created in the image of God, and each life is precious to He who created it. Jew or Gentile, we are obligated to save lives.
The Shulhan Arukh, in fact, brings a specific requirement to “whistleblow:” The Shulhan Arukh affirms that if one sees his fellow drowning, or sees bandits falling upon him, and he can save him or hire others to save him – in other words expending his own money – and doesn’t save the person, he is a transgressor. Not only that, but “if he heard idol worshippers or collaborators conspiring to do evil to a person, or to trap him, and he does not reveal what he heard to his neighbor and inform him…” he is a transgressor.
There have been whistleblowers who have boldly stood up to save lives at great personal cost, such as Dr. Jeffrey Wigand, a former vice president of tobacco company Brown and Williamson, whose testimony that tobacco companies were intentionally covering up information they had on the deadly nature of cigarettes was critical in the $286 billion lawsuit brought by 46 states against the tobacco industry. The tobacco industry of course makes the Pinto look like a minor transgression – tens of thousands of people, if not more, have died because of the deceit of the tobacco industry. Dr. Wigand was sued and subjected to all sorts of abuse in the press for his courageous act, but he was vindicated in the end for his courage to speak out.
This is not to say that every situation is so black and white. What makes the Pinto case so notorious is how bad the math was – any reasonable person would say you should obviously spend $11 a car to save 180 lives. If the cost was $1 billion to maybe save one life, the situation would not be so black and white. But in general, we can say that if lives are at stake, the Jewish tradition not only allows us to speak out, but it compels us to speak out.
But what if lives are not at stake? What if it’s only money?
Worldcom, Enron, and Global Crossing are just three major corporations that had meltdowns due to financial improprieties. There are many kinds of financial misbehavior in the corporate world. Sometimes companies engage in illegal practices, such as bribery, or theft, or using another company’s technology without a license, which is a form of theft. In many other cases, companies engage in ”creative accounting.” In one famous case in Silicon Valley years ago, a young high-tech company literally shipped bricks to claim they made a shipment and record the revenue. While I like to imagine perplexed customers wondering why their hard disk drive was a perfect imitation of a red house brick, the company only shipped the bricks to their own warehouse, but they still recorded the shipment as revenue.
Such shenanigans defraud investors who are deceived into investing in a company which they believe is financially healthier than it really is.
Assuming your motives are pure, clearly according to our understanding of the laws of lashon hara you are allowed to report it if you know of such information. But are you morally, ethically, and/or halachically REQUIRED to report such information at substantial potential cost to yourself?
In Sefer Hamitzvot Maimonides says “the commandment ‘do not stand idly by’ applies to a person who sees his friend’s money in danger and he must prevent the loss by testifying in court.” However, this requirement to save other people’s money only applies where it does not come at substantial cost to the rescuer. The Tur, an early law code, says one is not obligated to lose wages to save someone else a loss, and many rabbis understand this as meaning a person does not even have to forgo potential profits to return a lost item.
However, in cases of financial loss, it is appropriate to weigh the cost against the gain. If a person is aware of a relatively small impropriety—one with a cost of perhaps a few thousand dollars – one should not be expected to sacrifice his job when his loss will be greater than someone else’s gain.
But in a case like WorldCom or Enron, where the losses are measured in the billions of dollars, considerations are a little bit different.
As a strict matter of halacha, even in such a dramatic case involving billions of dollars there is no requirement to expose yourself to substantial financial loss to save other people’s money. However, it would be morally and ethically proper to do so. The Torah tells us to do הישר והטוב בעיני ה", to do what is right and good in the eyes of the Lord. There are situations where we can rightly be expected to go ליפנים משורת הדין, beyond the strict letter of the law. In fact, one midrash says that Jerusalem was destroyed because the inhabitants insisted on only following the minimum legal requirements, but in their behavior toward their fellow man they should have been going beyond the strict letter of the law.
Rabbi Asher Meir updates the Chofetz Chaim’s guidelines on lashon hara to reflect today’s environment for whistleblowing. He teaches five factors relevant to reporting wrongdoing: certainty (make sure there really is wrongdoing going on), benefit (constructive benefit to some victimized party), equity (don’t report if the harm to the wrongdoer is likely to be
disproportionate to the noxiousness of the misconduct), desire (pure intent by the whistleblower), and accuracy (if you do report wrongdoing, don’t exaggerate).
But even there, he is only talking about when you are ALLOWED to report wrongdoing. I believe this does not go far enough. Not only are we allowed to report wrongdoing under such circumstances, we have an obligation to do so.
There is a cultural bias AGAINST reporting wrongdoing, both in the Jewish tradition and in our secular society. In times when Jews were persecuted by Gentiles, to be a מלשין, an informer, was a very bad thing indeed and could subject someone to a great deal of communal censure. The Talmud brings an example of how God Himself refuses to be an informer, refusing to tell Joshua who the sinners were. There has long been a sense that problems within the Jewish community needed to be sorted out within the Jewish community itself.
In popular culture, “snitching” is very much looked down upon. Rap star Cam’ron said even though he had been shot several times, he would not cooperate with police in finding the people who shot him. He would not be a “snitch,” even in such a case. Such sentiments are conveyed to our children through popular music.
But it’s not just rap stars who send that message. How often do we tell our kids “don’t be a tattle tale?” I know that all too often when kids get into a fight over something – I’m sure you have trouble imagining my angelic children fighting with each other, but believe me it happens – when they get in a fight more often than not rather try and deal with who poked who first I tell them to work it out themselves. It may be a positive message to learn negotiating skills and to learn how to solve your own problems – but on the other hand, we are also telling them there is no point in reporting wrongdoing, as no one wants to listen to it anyway.
We have to overcome our cultural biases against speaking up. So what to do?
If you’re confronted with a situation where your employer is doing something wrong, the first thing you should do is to make sure you’re not a potential Korach. Make sure you have your facts straight and make sure your motives are pure. If it’s a situation involving loss of life, it must be reported. No excuses. If it’s a situation involving loss of money, if you can report it at no risk to yourself – or if, at a minimum, you are afforded protections for reporting it under law, as are employees of public corporations by the Sarbanes-Oxley act – you should report it. If the risk of severe financial loss to yourself is great, it is appropriate to weigh your potential loss against the gain to others, and do your best to do what is “right and good in the eyes of the Lord.”
Remember, the Talmud teaches us that when a person passes away, the first question he is asked is not whether he kept kosher, or observed the Sabbath – the first question he is asked is “did you conduct your business affairs with integrity?”