August 16, 2012
CSR: Chick-Fil-A, Taxonomies, and Definitions - A Curmudgeon's Response
Posted by Jeff Lipshaw

When Erik proposed this forum, I responded that I didn't think I had anything profound to say because (a) I couldn't care less whether Chick-Fil-A sells or doesn't sell chicken sandwiches, (b) think gay people should eat wherever they feel welcome and have as much right to demonstrate as the CEO had to opine, and (c) Chick-Fil-A, which apparently does not discriminate against gay employees or customers (morality aside, their work is work, and their money is green), will get whatever it deserves.  (There's a small establishment here in town here in northern Michigan I will no longer patronize with my occasional twenty bucks because the owner got ahold of my e-mail address and keeps spamming me with Republican propaganda, despite my request he not do so.)

After reading Erik's excellent introduction to the issue and Joan's first-rate discussion of the doctrine, I still don't think I have anything profound to say, but at least I think I know why.

250px-Pop!Tech_2008_-_George_LakoffI don't know if it's me getting older and grumpier, or that I have gained some kind of insight (getting in touch with my inner Lakoff, perhaps), but I find myself far less patient with definitional or taxonomic parlor games (e.g. "is rhythmic gymnastics a 'sport'?").  I'm also not very patient when merchants serve up morality and ideology of any leaning with their secret sauce or chicken nuggets (I live in Cambridge, MA, the ideological other extreme from Joan's world), but that's not why I was asked to be a "Master."  No, I'm here because I'm a professor, but my curmudgeonliness now extends to the somewhat more serious philosophical game of proposing a taxonomy and then worrying about whether something we didn't think fell within a particular bucket might actually belong in that bucket. 475_dover-parkersburg-bucket-2-1

Don't get me wrong. There is a serious consequence to taxonomies and definitions.  If a court finds that your business of buying up rights of AIDS victims in their life insurance policies involves a person investing money in a common enterprise with the expectation of profits arising out of the efforts of others, you are now in the "investment contract" bucket, which puts you with the "security" bucket for purposes of the Securities Act of 1933.  Pass a misanthropic park officer with your screaming baby in a perambulator, and you may find yourself worrying about whether the device is a vehicle.  

This is what lawyers do - classify real life into buckets for purposes of determining whether there's a remedial consequence.  Sometimes it drives normal people crazy.  "Whaddaya mean my baby buggy is a vehicle?"

ImagesNow the other thing that is pretty common is trying to make the argument that there really is a natural or scientific or descriptive reason for a bucket when what we really are doing is drawing a normative conclusion about the activity we either want or don't want in the bucket.  Whether a perambulator "is" a vehicle is the proxy war for whether somebody "ought" to be allowed to have a screaming baby in an otherwise peaceful park.  (That's why we don't allow noisy cars and trucks, isn't it?)

So what about "Corporate Social Responsibility," a disciplinary bucket now so widely acknowledged that it gets referred to by its initials?

The thrust of Erik's post is exactly right.  If CSR purports to be an "is", and corporations ought to engage in it, then how do you possibly distinguish causes and advocacies merely because of the merits of the causes or advocacies?

The answer is "doh, you can't."  

If you accept the idea of CSR, then indeed you have to accept the idea that "social change" and "commerce" are going to be intertwined.

And, of course, "social change" and "commerce" are themselves taxonomic or definitional buckets.

The chestnut case for the bucket game of "social change" and "commerce" is Dodge v. Ford Motor Company, wherein the shareholders objected because Henry Ford declined to pay a dividend and chose instead to invest profits in a smelting plant so as to reduce the price of the automobiles, not because it putatively related to a commercial purpose, but because of Ford's desire to effect social change - "the betterment of mankind."

Almost a hundred years later, it ought to be clear there are so many different ways of looking at social change and commerce as concepts, and indeed they are not mutually exclusive as applied to business activities, that trying to play the definition game a la Dodge is about as satisfying as arguing about whether rhythmic gymnastics or dressage are sports.

I used to be the general counsel of a publicly-traded company, so let me give two examples of how muddied the waters can get (no word play intended).

1.  A company makes a product that in the near term unquestionably saves lives.  The product may also have a long-term environmental impact; let's assume some of its ingredients are persistent in the environment, there is increasing evidence that they bio-accumulate, but there is still a largely open issue on whether they are toxic.  For some the P & B (or even the P) of the PBT triad would be enough to say "ban the stuff" or "boycott the bastards" even if it's the most cost effective way (by a long shot) of providing the present unquestioned benefit.  The company, however, abides by the American Widget Council's "We Care" program and thus would, on its own, stop making a demonstrably PBT widget, even at the expense of return to the shareholders.  I don't think anybody would seriously challenge the company's right to make a judgment, weighing commerce and social change, anywhere along the P to PBT continuum.  I really don't care which theoretical taxonomic bucket the judgment falls into.  But you pays your money and you takes your chances with the public and with your shareholders.

2.  A company makes significant contributions to the Children's Museum, public radio and television, the Art Institute, the Symphony, the Zoo, and other cultural institutions in the metropolitan area.  The company also encourages its executive to take time from their day jobs to play leadership roles in those institutions.  Some of those institutions' programs are, from time to time, controversial.  (Think Mapplethorpe or a PBS special on something that offends somebody.)  For those of us who have ever tried to recruit employees to relocate to Indianapolis or Detroit (try it some time), the idea that these "social" activities also contribute to commercial success is patently obvious.  Once again, I don't care whether the judgments fall into the "commercial" bucket or the "social responsbility" bucket.  You pays your money and takes your chances with customers and shareholders every time you make or don't make a decision.

So....  As a grumpy old ex-corporate guy, I reject the notion that there ever were "separate spheres."  A Images-1 language is a dialect with an army and a navy, and a movement is an academic theory whose initials get capitalized.  If I decide to run a maquiladora on the Mexican side of the Rio Grande because wages are a mere fraction of those across the river in Texas, then I better be prepared to deal with the wrath of the Little Sisters of the Poor when they submit their Rule 14a-8 shareholder proposal.  No doubt somebody here in northern Michigan likes getting Pete Hoekstra for Senate spam.

You pays your money and takes your chances.  


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