Klosterman Chucks The Right To Remain Silent

Granted, we’re way beyond the point where anyone with half a brain would confuse the advice of Chuck Klosterman, the Ethicist (2,0) in the New York Times Sunday Magazine, with legal advice.  First, he’s not a lawyer. Second, he doesn’t know anyone who is a lawyer well enough to ask a basic question. Third, he doesn’t appear to have any sense of what is or is not lawful. And fourth, he doesn’t let the huge gap in knowledge prevent him from using New York’s pre-eminent newspaper to tell people what to do.

But then Klosterman gets a question like this:

While applying for a new job, I may need to state whether I have ever been arrested. I was arrested a few years ago for leaving the scene of a fender bender. I strenuously argued my innocence, and the charges were dropped and even erased — so I have been arrested but never charged with a crime. I am comfortable explaining the situation, but do I have an ethical duty to disclose this information on the application? JIM, VERMONT

Now, I understand that Jim from Vermont just wanted to see his name in the New York Times magazine, and really didn’t give a hoot what Klosterman’s response would be. But others will read this and think, Klosterman can’t be a total buffoon or they wouldn’t let him sit in Randy Cohen’s (Ethicist 1.0) old chair.

Yet again, Klosterman has decided to include a question posed as an ethical issue but with obvious legal implications in his column.  If he wanted to be ethical in his response, one might suppose he would run it past a lawyer just in case there were factors that would inform an ethical response that he was unaware of. They have lawyers at the Times. Heck, he could even call Adam Liptak, a lawyer and a smart guy, who would likely take his call provided he didn’t make a nuisance of himself.

But no. Klosterman flies solo, because it’s his column and he doesn’t need any stinkin’ legal knowledge to give ethical advice on a question with obvious legal implications.

If there’s no opportunity to explain the circumstances, your prospective employer is asking a poor question. It’s certain to generate dilemmas like the one you describe. It also raises questions about what information qualifies as essential to a prospective employer and what is nonessential information that the employer has the right to know.

A poor question? How about an unlawful question? In many states, New York included, it is unlawful to ask a job applicant if he’s ever been arrested. Arrests are meaningless, mere accusations. Convictions are another story, but that wasn’t the question, now was It, Chuck? This isn’t a matter of essential versus nonessential information, and it most assuredly isn’t a question of what the employer “has a right to know.”

An employer can putatively ask a job applicant anything. That doesn’t mean it’s lawful to do so. That’s a kinda big thing, when advising as to the ethics of concealing information. Wouldn’t you want to mention something about an applicant being subjected to unlawful questioning?

You, however, are not in a position to question the merits of this query. You have to deal with the situation in front of you, even if it’s unfair.

Well, actually the applicant very much is in a position to question the merits of this query, just as anyone who is subject to an unlawful act. Who else would question an employer’s queries the law forbids?

Considering the circumstances, it should not be that difficult to explain what happened.

Have you ever tried explaining something to a piece of paper with a check box for yes and no, Chuck?  It’s not hard, but it’s remarkably ineffective. The paper listens attentively but rarely answers back or relates the story to a subsequent reader. It’s just the nature of paper, which is something you should be aware of considering you write for one.

If you’re not given an opportunity to do so, I can understand the temptation to lie. But you’re asking about ethics, so that’s my answer.

Is it a lie to refuse to acquiesce in an unlawful act?  What if the box asked for the color of the applicant’s skin, or which gender’s underwear the applicant preferred to wear in the privacy of his own home?  Questions are easy to ask. That someone asked doesn’t mean there is a duty to answer, and in some instances, as here, to answer is to enable unlawful conduct. Is that the new ethics?  Does the New York Times now urge people to facilitate employers’ breaking the law?

Moreover, Chuck, it may not be a lie at all.  There is that rarest of legal fictions, set forth in Section 160.60 of the New York Penal Law, that actually cuts in the defendant’s favor.

Upon the termination of a criminal  action  or  proceeding  against  a  person in favor of such person, . . .  the arrest and prosecution shall be deemed a  nullity and the accused shall be restored, in contemplation of  law,  to  the status he occupied before the arrest and prosecution.  The arrest or  prosecution  shall  not  operate  as a disqualification of any person so  accused  to  pursue  or  engage  in  any  lawful  activity,  occupation,  profession, or calling.

In other words, it never happened. The arrest? Gone. The prosecution? Disappeared. As a matter of law, the police officer never saw your face, never slapped on cuffs, never sprayed you with pepper or struck you with a club, while accusing you of attacking his fist with your face. It never happened. Bazinga. Gone.

True, Jim, the questioner, is from Vermont, and this is the law in New York, but then, you’re writing for the New York Times, not the Burlington Gazette. and the vast majority of readers are likely to work in tall buildings with their own zip codes.  Get the point, Chuck?  But then, you would have to have a clue about such things to incorporate them in your ethical advice.

I’m all for ethics. I like ethics and urge people to behave ethically all the time. But I’m also for accuracy, and fail to see the ethical virtue in promoting information that is not merely wrong, but likely to do harm. What about you, Chuck?


4 comments on “Klosterman Chucks The Right To Remain Silent

  1. DHMCarver

    I liked Klosterman when he wrote mildly humorous pieces for Esquire, but when I saw a few weeks ago that he was the new “Ethicist” for the NYTimes, I scratched my head. (Literally — I did the head-scratching thing like in the old cartoons.) “Is this a joke?” I wondered aloud. My three year old son looked at me quizzically. I read the piece and then realized that Klosterman was indeed the Times’ new “Ethicist”. Oh dear. (It reminded me of when P.J. O’Rourke stared being considered a serious political commentator — oh dear.) Thanks for skewering this Klosterman piece, and, by implication, the Times for putting a jokester in the Ethicist chair. What’s next? Louis C.K. as ombudsman?

    1. SHG Post author

      In the brief period of time he’s warmed Randy’s chair, he’s already made two huge gaffs. Which might be funny, except it’s not.

  2. Jake DiMare

    Oh, you lawyers and your monopoly on ethics. Chuck’s not pretending to give out legal advice. Believe it or not, there are some of us among the knuckle-dragging cohort of lay people capable of using our cerebral cortex for something other than making our head round enough to fill a baseball cap.

    1. SHG Post author

      An interesting contention, Jake, but I’m afraid you will have to prove it. Certainly, nothing you’ve ever written before suggests anything of the sort.

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