Continuing my series of alternative responses to the New York Times column, The Ethicists, looking at the consequences of oneâ€™s actions instead of imposing values on others, here is my take on todayâ€™s post, â€œShould I Ask My Secretary to Fix Her Teeth?”
I have a small law practice with several employees. My secretary, who is the face of the firm to every client or prospective client who walks through the door, fell last December and knocked out eight front teeth. Since then she has not had them replaced or had dentures made. She comes to work with no front teeth, which is not the face I want put forward. She has health and dental insurance through my office, but she says sheâ€™s too nervous about surgery and hates going to the dentist, so sheâ€™s not going to do anything. Can I require her to fix her teeth or get dentures as a condition of continued employment? NAME WITHHELD, NEW YORK
My response: There is a legal question of what the law says. Lawyers can answer that question better than non-lawyers.
If it’s not legal, your question is if you can do it. You still can do it, but you’ll likely lose a lawsuit. If it’s legal—like if the law says it’s at-will employment—you can do it without legal risk, I guess.
You asked an odd (to me) question: can I require something. I would have asked things like
- What are the consequences of doing so?
- What alternatives can I do that might create outcomes we all prefer?
- How can I implement the plan I decide on most effectively?
- Do you know of similar cases I can learn from?
- Do you know experts or books I can learn from?
That is, productive, planning questions about the future, not evaluative questions about possibilities.
Anyway, I would talk to a lawyer and create a strategy based on the relevant law, not on the advice of newspaper columnists. Without that legal advice, you’re planning blind, asking marginally relevant questions.
The New York Times response:
Kwame Anthony Appiah: One possibility is that when she says sheâ€™s nervous about surgery, what she means is she has a pathological fear, not just that she doesnâ€™t want to do it. Or she might be thinking: There are deductibles on these things, theyâ€™re quite expensive, I donâ€™t have the money right now. Medical and dental insurance doesnâ€™t mean that sheâ€™s not going to have to pay anything. So the right way into this is to have a conversation with her in which you discuss fully what all the issues are. But in the end her job is, as you say, to be the face of your firm, and if you think after discussing it with her that she canâ€™t do that job properly, that sheâ€™s going to either turn people away or lead people to have less respect for your legal capacity and so on, then this is something that you can reasonably ask her to do. But only after youâ€™ve had these fuller discussions. Itâ€™s one thing to say that sheâ€™s the face of your business and itâ€™s not the face you want to put forward; itâ€™s another thing to say that sheâ€™s actually damaging your business.
Amy Bloom: We so often come to this point â€” start with a full and frank conversation with the other person. Find out what the circumstances are. A $500 deductible might still be very hard to afford. You should really think about how much surprise and discomfort she is causing your clients. Maybe youâ€™re assuming she is, and maybe she isnâ€™t. I will also say eight is a lot of missing teeth, and I donâ€™t find it hard to imagine that that would make her more difficult to understand. If she refuses to do anything about it and there is no other position for her in the office, I donâ€™t think itâ€™s unreasonable to say this isnâ€™t going to work out.
Kenji Yoshino: Legally, the letter writer could terminate the employee because this situation as described doesnâ€™t touch on any protected classification, like disability. But weâ€™re talking about ethics rather than the law. Would either of you say that itâ€™s ethical to make it a condition of her employment that she lose weight? Sheâ€™s not deprived of her capacity to interact with the public simply because she lacks front teeth.
Bloom: I disagree. If your job is to greet and speak to people, missing eight teeth does hamper your ability to be the face and also the voice. Itâ€™s harder to understand people. Being very overweight doesnâ€™t affect the ability to greet people when they come in the door, to ask them what theyâ€™re there for and to engage them in conversation.
Yoshino: So both of you are saying this would hamper her in doing her job effectively. Iâ€™m not sure that I see it. The presumption in the general culture is that the employer gets to say whatever it wants in controlling its business, but it may be that employers need to change their values rather than have employees change theirs.
Appiah: These issues are complicated because there are considerations that have to do with the employersâ€™ attitudes and then there are clientsâ€™ or customersâ€™ attitudes. We rightly think that if the customersâ€™ attitudes are racist or sexist, they should not be taken into account by the employer, and the law also supports that view. The issue is going to be what customer tastes strike us as reasonable and what donâ€™t. It seems to me that itâ€™s part of our current social understanding that if people have lost all their teeth and are in that way unattractive and maybe not able to speak and thereâ€™s something they can do about it, then weâ€™re not being merely fussy when we ask for that. Iâ€™m just saying thatâ€™s what I think the social understanding is. Your point is, it may change.
Bloom: And maybe it should change.
Yoshino: Exactly right. My thought is that maybe we need to push against that social understanding. To take a real-life example, it used to be that airlines could say that flight attendants had to be below a certain weight because thatâ€™s what customer preferences dictated, but weâ€™ve changed the culture in such a way that now it would seem preposterous or really offensive to require that.
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