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In a morally complex world, it is often difficult to figure out how to do the right thing. Nonetheless, you would think that reporting obvious child abuse would be one of life’s less questionable decisions. You would be wrong. Consider the case of Shirley Gasper of Fremont, Neb. In July 1999, she was working in a Wal-Mart photo lab when she came across a photograph of an infant crawling around in a pile of marijuana leaves mixed with $50 and $100 bills. Alarmed at what appeared to be an extremely dangerous situation, Gasper contacted the local police and gave them a copy of the photograph. Her fears were well-founded. The authorities located the child, who turned out to be bruised as well as living in an unsafe environment. Criminal charges were filed, and the child was taken into protective custody. But that was not the end of the story. When Gasper’s superiors at Wal-Mart found out about her actions, they responded by firing her. It seems that Wal-Mart has a policy that requires employees to notify store managers before turning photographs over to the police. Because Gasper did not follow the chain of command, she suddenly found herself out of a job. Gasper hired a lawyer and sued her former employer for wrongful discharge. The case eventually went to trial in federal district court, and the jury entered its ruling on Jan. 12. We’ll get to the verdict in a moment, but first let’s look at the arguments on each side. CHOICE OR NO CHOICE? Gasper says she believes that she had no choice. A child was clearly in danger, and Gasper’s conscience compelled her to make an immediate report. She believes that it was just plain wrong for Wal-Mart to fire her for behaving like an exemplary citizen. As she explained to a local newspaper, “The last thing I was expecting in this company was getting fired for trying to save a child.” Wal-Mart, of course, sees it differently. “We share the same concerns … for the safety of the child,” said a company spokesman, “[but] we also respect the confidentiality and privacy of our customers.” For that reason, each store has a management team that makes decisions about suspicious photographs. According to Wal-Mart, Gasper was not fired for reporting child abuse, but for failing to allow her supervisors to participate in the decision. Both arguments make good sense. Gasper was acting on the best of motives, seeking only to protect a vulnerable child. The local police praised her for coming forward. It is hard not to be sympathetic with her claim that Wal-Mart acted unfairly, placing obedience to rules ahead of responsible citizenship. Good deeds should not be punished. But there is also an institutional perspective. With hundreds of stores and thousands of employees, Wal-Mart strives to have a uniform policy regarding customer privacy. Although Shirley Gasper made a solid judgment about the photograph in question, another clerk in another situation might act more impulsively, calling the police over a completely innocent picture. Different people have different moral standards, after all, and Wal-Mart does not want to turn every photo clerk into an independent investigator or free-lance censor. Indeed, guidelines issued by the International Photo Marketing Association recommend that store managers always make the ultimate decision about whether to call the police. So what is the right result? Was Wal-Mart recklessly endangering children or cautiously safeguarding privacy? Did the company unreasonably punish a hero or simply enforce a necessary policy? Some people will say there is nothing more important than protecting children, and that Gasper should, therefore, win her case. Others will say that Wal-Mart’s rules are sound, as they are intended to minimize false or unnecessary abuse reports. IMPORTANT MESSAGES Both Gasper and Wal-Mart make important points. Neither position is clearly superior to the other. A victory for Gasper would probably foster broader reporting to the police, perhaps exposing more child abuse, but also jeopardizing innocent people — such as the New Jersey grandmother who was arrested last year when she picked up “baby-in-the-buff” photos that she had taken of her granddaughters. But a victory for Wal-Mart would discourage reporting, meaning that some crimes might never be discovered. In truth, there is no single morally correct solution. But life is not a philosophy class, and it is not enough to say that the answer is ambiguous or indeterminate. Gasper suffered a real-life loss. She was fired from her job and she is entitled to a resolution of her claim. Wal-Mart likewise needs to know whether its policy is legally supportable. All of which finally brings us back to the courthouse. It is fashionable to complain that America is over-lawyered, but the fact is that we need a legal system that can resolve perplexing cases and sort out competing interests. We end up entrusting tough decisions to the courts not because we are litigation-happy, but because there is no better way to get clear-cut answers to otherwise unresolvable problems. Ultimately, the role of the legal system is to settle disputes that we cannot settle for ourselves. This function is especially important when both sides have legitimate claims that they are unwilling to compromise. And the jury’s verdict? Gasper’s wrongful termination claim was rejected by the jury. Wal-Mart won. After hearing all of the arguments and listening to all of the evidence, the jury decided that Wal-Mart had the right to insist that employees consult their supervisors when deciding whether to report customers to the police. It is hard to say that the jurors were entirely correct because the impact on Gasper was so harsh. But it is impossible to say that they were wrong. Acting in a moral gray area, the jury had to make a black-and-white decision. You might argue with the verdict, and a different jury could sensibly have reached a different result. We’ll see. A similar lawsuit was recently filed in Tampa, Fla., where a Wal-Mart clerk claims that she was fired for turning a suspicious — though ultimately benign — photograph over to the police. Juries cannot always deliver eternal truths or transcendent solutions, but they can usually give us workable answers after affording people the right to be heard. When that happens, the process works. Steven Lubet is a professor of law at Northwestern University.

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