HR MANAGERS AS ETHICS AGENTS OF THE STATE 149and that they should also be protected if they make complaints on their own
behalf. However, the courts have sometimes held that the EEO/AA officer
is really there to protect the interests of the employer, and ‘participating’ in
discrimination claims, is necessarily in direct conflict with the purpose of
their job. This is where the issue of loyalty and the primacy of commerce
over the law and human rights becomes an interesting one. For the naive
and simple person, it would be very easy to assume that the law should take
precedence. One might readily assume that the state would be very concerned
that employers are not complying with the law and that it would ensure that
those who engage in whistle-blowing activities, or simply provide information
as part of their jobs that is required in discrimination cases, receive the utmost
protection. But this does not appear to be so: Bales (1994) illustrates just how
the courts give far less protection to personnel managers than to any other
employee classification.
Loyalty to the employer appears to be seen as the primary duty. Yet, as
Pfeiffer (1992) argued, loyalty is context specific and a relative concept. By
reporting discriminatory behaviour after exhausting all best endeavours to
change the situation may in fact be the most ethical and legal thing to do.
According to Larmer, ‘loyalty amounts to acting in a person’s best interests
and it can never be in a person’s best interests to be allowed to act immorally’
(1992: 128).
Baytos (cited in Grensing-Pophal 1998) suggests that HR managers have
to be prepared to take risks if they feel strongly about an issue, but this is
easy advice to give when not facing retaliation risk as well as, quite possibly, an
unsuccessful court case and resultant lack of income: Bales (1994) summarizes
the legal treatment of personnel managers in the USA by suggesting that the
nature of the job description and the level of the job will come into play, so
the higher up in management the less protection is likely and if the person
was hired to represent the company ‘against’ employees who file claims then
greater loyalty is expected. Absent is the suggestion of loyalty to ‘right’, lawful,
or ethical behaviour! Thus it is not surprising that a survey by Weatherspoon
(2000) of randomly selected members of the American Association for AA
found that 67 per cent had faced reprisal in their position, but only 4 per cent
had filed a complaint against their employer and only a further 8 per cent
wanted to.
Discussion
In an era when CSR and alternatives to the overriding obligation to the eco-
nomic model are being countenanced quite widely, it is perhaps disconcerting
that HR managers are not obviously enforcing EEO obligations and when