Mahdi Kafaee and Mostafa Taqavi
Sometimes, in our capacity as professionals, and under certain circumstances, we find ourselves faced with an ethical problem such as a conflict of interest in which codes of ethics or available ethical problem-solving methods cannot help us decide upon the moral course of action to take. Hence, either the codes or methods are flawed, or we are not using them appropriately. A method claimed to be helpful in such situations is The New York Times Test (NYTT).
The NYTT is, in fact, a thought experiment. When you are caught up in the above situation and cannot use the aforementioned codes and methods, you can perform this thought experiment. In so doing, suppose that when faced with the ethical problem, you choose one of the possible options available to you, and that as a result, you have taken a certain course of action in practice. Now see whether you are willing to inform your parents or children clearly of the course of action you have taken, or whether you would prefer for your decision not to be discussed. Suppose, further, that a report of your action appears on the first page of a high circulation newspaper such as The New York Times, where everyone can read all about it. Would you feel ashamed of the report of your action in that newspaper? Would you be comfortable justifying the decided-upon action in an interview on 60 min? Would you be able to be accountable to public opinion comfortably? Would disclosing your action damage your reputation or that of your company’s? The NYTT holds that if the disclosure of your action would embarrass you, damage your reputation, or harm your company’s reputation, then this action is something which you probably should not take and that the decided-upon action might require some rethinking , , . One such test is sometimes called the 60-min test, The Wall Street Journal test, the TV test, the smell test, the disclosure rule, or the spouse/children/parents/grandparents test , , , .
See whether you are willing to inform your parents or children clearly of the course of action you have taken, or whether you would prefer for your decision not to be discussed.
In another version of this quasi-intuitive approach, it is called the “sleep test”: in general, moral agents were confident that by listening to their hearts and avoiding actions that made them feel uncomfortable, they could lead ethical lives. They often expressed this approach in simple questions: If I do this, will I be able to sleep at night? Will I be able to look at myself in the mirror in the morning? Will I be the kind of person I want to be? .
Let us consider an example. You pay a visit to one of your suppliers as the purchasing manager of one of their major clients, where you receive a gift or hospitality which might or might not be a bribe. The company’s intentions might be to influence your decisions when you are acting in your professional capacity by giving this gift/bribe to you. But irrespective of what the company’s intentions might be, they might have put you in a position where you have a conflict of interest, that is, your professional decision might be influenced by your personal interests. Although some companies set a threshold for gifts or hospitalities that one may legitimately receive, after which one must declare and register the receipt of such gifts with the company (see ), suppose that there is no relevant code of conduct or ethical guideline that you can rely on in such cases. It would seem that low-value gifts including pens, calendars, diaries, flowers, other mementos, and tokens of appreciation; and hospitalities such as lunches, dinners, or refreshments, cannot also be considered to be forms of bribery. Furthermore, high-value gifts such as a car should be considered to be a bribe. In the absence of guidance, it might be difficult to pinpoint the exact boundary between gifts and bribes. According to the NYTT, in such situations, you should imagine a scenario in which you has accepted the gift in question, and to further imagine that a report of your accepting the gift is published in The New York Times. The NYTT would then have you ask yourself whether the publishing of such a report would be embarrassing. And whether you would comfortably be able to answer a reporter’s questions about this matter. The NYTT would also have you ask yourself whether you would be comfortable informing your spouse or children about this. If the answer is “no” or “probably not,” then the decided-upon action is probably unacceptable from a moral point of view.
If applying the NYTT does not lead to a clear result for a course of action, another possible course of action might lead to a clear result in such a thought experiment. Also, the NYTT can be used not only to reveal morally questionable decisions, but also to affirm the morality of one’s decisions. If the general public praises or applauds an act’s morality, then it is probably a moral act.
Trevino and Nelson  provide an example in this regard: “A public relations manager, Mary, described an incident with a printing company (we’ll call it Type Co.) sales representative who was trying to get her business. Type Co. already did business with a number of departments within her company, but Mary was satisfied with her current printer and saw no reason to switch. Just before the holidays, Type Co. sent a popular electronic device (worth about $ 250) to Mary and to all of its customers in her company. Mary immediately felt that the gift was inappropriate; but to check out her judgment, she called one of Type Co.’s other customers in her company. Mary’s colleague assured her that there was nothing wrong with accepting the gift and that it was simply a token of good will. (If Mary had been friendly with one of her company’s lawyers or human resources managers, she probably would have received very different advice.) Mary listened to her internal warning system, despite what her colleague said. She sent back the gift. When asked why she returned the gift, Mary said, ‘I felt like I was being bribed to do business with Type Co.’ A reader of The New York Times would probably agree.”
Some scholars claim that the New York Times Test can be justified ethically by the categorical imperative.
Some scholars claim that the NYTT can be justified ethically by Kant’s position—the categorical imperative, which first formulation holds: “Act only in accordance with that maxim through which you can at the same time will that it become a universal law” [6, p. 37]. These scholars interpret this formulation to be a criterion of publicity or transparency, and the extent to which one’s course of action stands up to public scrutiny , . The second formulation of the categorical imperative—the reciprocity principle—holds that act so that you use humanity, as much in your own person as in every other person, always at the same time as an end and never merely as means [6, p. 151]. A way to respect persons as ends in themselves is to involve them directly in the decisions that concern them. The NYTT can be seen as an indirect representation of persons . Although there are similarities between the NYTT and the categorical imperative, it seems that the former has more to do with common sense morality or with moral intuition.
Advantages of the NYTT
The NYTT has some advantages compared to other ethical guidelines. First, despite the fact that most ethical problem solving requires contemplation and deliberation, there are cases of ethical problems in which quick decision making is required. Example of this include ethical consultation or the study of ethical sources. This test is a quick-check test and can be helpful in such cases .
Second, in many cases, there are complications in thinking about ethical choices in the framework of ethical theories such as utilitarianism, deontology, rights theory, justice theory, and so on. This added level of complexity increases the probability of the occurrence of errors. Contrary to this complexity, the NYTT is simple to apply due to its intuitive nature .
Third, you might find yourself in a situation where you know your decision is not immoral, but that it could be misinterpreted by others. In such a situation, others might think that your objectivity with respect to your decision will have been compromised. This situation is called an appearance of a conflict of interest, and this can be as damaging as an actual conflict of interest in professional ethics. In some codes of ethics, it is advised that the appearance of a conflict of interest should be avoided. For example, the IEEE advises its membership as follows: “We, the members of the IEEE … do hereby commit ourselves to the highest ethical and professional conduct and agree … to avoid real or perceived conflicts of interest whenever possible, and to disclose them to affected parties when they do exist” . The NYTT is, to some extent, sensitive to this appearance of a conflict of interest .
The New York Times Test is simple to apply due to its intuitive nature.
Fourth, “overconfidence bias” is a cognitive bias in which the subjective confidence of a person in his or her judgements is greater than they actually are, objectively . Similarly, the “false uniqueness effect” refers to the tendency to overestimate one’s own uniqueness . Asking the right questions can mitigate these biases given sound critical thinking. For example, the NYTT paves the way to foresee others’ reactions and to mitigate partly these biases by posing questions such as the following: How will people ethically evaluate my actions? .
Some Criticisms of the NYTT
The NYTT has been subjected to various criticisms. One criticism is that every possible result in a moral dilemma will be negative in a significant way. As such, there will always be people who complain, whatever the decisions might be. Suppose that a corporation faces serious economic problems and that after due moral deliberation, the CEO decides to lay off a thousand workers. The resulting unemployment will thus lead many of the redundant workers to become involved in violence, alcohol abuse, and in physical and mental illness, and the local economy will become decimated, crime will soar, and lives will be ruined. All of these are standard consequences of mass layoffs. Obviously, the CEO would not want such an eventuality to appear on the front page of the newspaper. But the problem is that the alternative options are even worse, and this level of complexity is not something that the NYTT is equipped to take into consideration . Although this example demonstrates a difficult situation in ethical decision-making, it is not a counter example to the NYTT. If all the adverse consequences of the alternative options were to be published in The New York Times, then the majority of public opinion would probably affirm the CEO’s ultimate choice. Additionally, the condition for using the NYTT is the absence of pertinent ethical guidelines, whereas decision-making guidelines for such an important issue are usually available.
The New York Times Test is simple to apply due to its intuitive nature.
Another criticism is that the NYTT does not accommodate the need for keeping company secrets. But this criticism is invalid because the thought experiment does not pose a real conflict of commitment because the NYTT is only a thought experiment and sensitive business information does not need to be disclosed. Additionally, focusing on ethical aspects, the NYTT can be performed in general terms without the need to include any sensitive information .
It would seem that there are, however, objections which cannot be responded to easily. First, the NYTT is not robust enough to people’s sensitivity to disclosure. Not all people are sensitive to the disclosure of their secrets to the same extent. For example, anyone who has already lost his good repute in society to some extent is probably not as sensitive about making a disclosure as a reputable person would be. Conversely (and in fewer cases), there might be some people whose fear of disclosure of a certain action of theirs is unreasonably high, leading to a false result when the NYTT is applied.
Second, different people in society might have different beliefs, values, and attitudes concerning any given issue. In some cases, this diversity might be ethically justified or it might not be . For example, there are some people who, according to their beliefs and attitudes, easily turn to consumerism with a clear conscience, while there are others who would disapprove such behavior. It is not always easy to understand or master this diversity of opinion. In this case, the agent or decision maker might not be fully or properly informed of the extent and nature of such diversity of opinion, and this would then lead the NYTT to yield a false recommendation. Furthermore, if the decision maker is familiar with the nature and extent of such variation of opinion, the test might be unable to converge to a unique answer in some cases.
Third, the effectiveness of the NYTT is reduced in cases where a person knows that his or her action cannot or will not be disclosed, or in cases where he or she knows that even if his or her act were somehow to be disclosed, that he or she would be able to deny the allegation convincingly.
Fourth, and most importantly, it might be possible that a moral person is positioned in an immoral society . In this case, the NYTT will not only not help the agent, but will act to mislead him.
The criticisms leveled at the NYTT do not seem to completely undermine the validity of this powerful tool. Some of the aforementioned objections stem from the subjective nature of the questions of the NYTT: if you would not feel comfortable with public disclosure or public scrutiny for what you want to do, you will probably not do it. When the subject is the benchmark, then personal characteristics such as sensitivity to disclosure or personal attitudes to a certain course of action can have more effects on the outcome of the NYTT. There can be similar ethical advice in religious contexts in which the intersubjective aspect prevails over the subjective aspect: Avoid every action that is done covertly and is publicly embarrassing; avoid every action that, when asked, the agent will deny or will apologize for; and do not expose your honor to be treated as the subject of people’s talks . In the intersubjective version of the NYTT, a typical agent (not the experimenter) takes a course of action in the thought experiment. It seems that this new NYTT can mitigate subjective interventions, overconfidence bias, and the false-uniqueness effect better than the traditional version. As such, it can be concluded that the intersubjective NYTT posits that “if public disclosure or scrutiny of an action will potentially lead to the typical agent’s shame, notoriety, denial, or apology, then you probably shouldn’t do it either.”
When the subject is the benchmark, then personal characteristics such as sensitivity to disclosure or personal attitudes to a certain course of action can have more effects on the outcome.
This intersubjective version of the thought experiment can be realized in the real world—an ethical laboratory: an agent faced with an ethical problem should tell the people his or her decision and ask them to comment on his or her decision from an ethical point of view. Also, people can use the NYTT on themselves in their evaluations. Then, the agent can reflect on the responses. Today, the expansion of social networks has facilitated conducting this survey remarkably. Obviously, this process should not include the release of sensitive information or violate anyone’s privacy. It seems that implementing this recommendation will reduce the intensity of some of the objections that have been leveled against it. It would appear that attention to others’ voice of conscience, in the real world or in thought experiments, gives us a more rational way to reach better results when ethical decision-making is involved.