by Allan Barsky, JD, MSW, PhD
Photo credit BigStockPhoto Formatoriginal
The United States is a constitutional democracy founded on core principles, including the rights to life, liberty, and the pursuit of happiness (Jefferson, 1776). These foundational ideals align closely with social work ethics, such as respecting clients’ right to self-determination, recognition of the dignity and worth of all people, promoting social justice, helping people in need through equitable access to services, and acting with integrity (National Association of Social Workers [NASW], 2021) .
Ordinarily, the principle of integrity suggests that social workers should comply with the rule of law, including federal, state, and local laws. However, social workers may encounter situations in which their ethical responsibilities conflict with relevant laws. The Purpose section of the NASW Code of Ethics suggests that when such conflicts arise, “...social workers must make a responsible effort to resolve the conflict in a manner that is consistent with the values, principles, and standards expressed in this Code.”
The Code recognizes that legal-ethical conflicts cannot always be easily resolved. It also acknowledges situations in which social workers’ ethical obligations may take priority over their legal compliance. This article explores social workers’ professional responsibilities when faced by situations in which they need to choose between legal compliance and acting in accordance with their ethical duties.
The Rule of Law
The rule of law suggests that for society to operate effectively and fairly, individuals, corporate entities, and government actors should act in accordance with the law. For the rule of law to be legitimate and just, the processes by which laws are created must be fair, transparent, accessible, and efficient; additionally, human rights need to be respected and justice must be enforced by competent, ethical, and impartial representatives (World Justice Project, 2023). When laws themselves, or the manner in which laws are enforced, fail to meet these principles, individuals (including social workers) may have ethical justification to question, challenge, or seek reform of such laws or practices (Wynia, 2022).
Examples of Unethical Laws
History is replete with examples of unethical laws. Within the United States, laws supporting slavery, enforcing segregation under Jim Crow, and denying women the right to vote or hold public office illustrate how laws can be unjust and unethical. More recently, laws that take away people’s rights to bodily autonomy and self-determination in medical decision-making may also be regarded as unethical. Other examples of unethical policies and practices include the administration of immigration laws that allow Immigration and Customs Enforcement (ICE) agents to enter homes without warrants, to use rapid deportation of individuals without access to an immigration judge or other procedural safeguards, and large-scale enforcement raids that instigate violence and traumatize children, families, and communities.
First Resort
When confronted with the prospect of unethical laws, social workers should not reflexively ignore or disobey them. As a first resort, they should pursue responses that work within existing legal and institutional structures, while seeking to resolve ethical-legal conflicts. Initial responses may include:
- consultation with supervisors, colleagues, attorneys, or ethicists to evaluate the seriousness of the perceived ethical-legal conflicts, and to explore lawful and ethical strategies and solutions for managing such conflicts.
- creative problem-solving to identify options that allow the social worker to fulfill their ethical duties without running afoul with the law or undermining the administration of justice.
- advocacy to reform laws or administrative practices to ensure alignment with social work values, professional ethics, and constitutional rights and freedoms.
- participation in litigation or court actions to challenge the validity of laws that may conflict with constitutional rights and freedoms.
- engagement in electoral and political processes to support candidates and policies that are more consistent with social work ethics and constitutional principles.
These strategies reflect actions within the rule of law, even as they may challenge the status quo and seek more just and ethical legal frameworks. Options 3 through 5 are explicitly supported by Part 6 of the NASW Code of Ethics, which calls on social workers to promote social justice and participate in political action.
When Compliance May Be Complicity
When faced with unjust laws, some social workers may feel inclined to comply with the law. Understandably, they may not want to put themselves, their agencies, or their clients at risk (e.g., risks of criminal charges, loss of professional licensure, loss of government funding for their agencies, or retaliation against vulnerable clients). When faced with legal-ethical dilemmas, social workers should consider the risks to themselves and others, including potential consequences if they do not comply with the law. Regardless of the social worker’s intent, one significant risk of legal compliance is complicity in the implementation and normalization of unjust laws.
In the aftermath of the Holocaust in Nazi-controlled areas of Europe, the Nuremberg trials established a number of principles that relate to the risks of legal compliance with unjust laws:
- Individuals, not only states, can be held criminally responsible for war crimes, crimes against humanity, genocide, and other serious violations of human rights.
- An individual is not absolved of responsibility for their actions simply because they were obeying laws or orders from their superiors, particularly when moral choice is possible.
- Professionals, including physicians, lawyers, and scientists, may have ethical duties that supersede legal or government directives.
(United States Holocaust Memorial Museum, n.d.)
Although the Nuremberg trials were not specifically related to the acts of social workers, these principles have direct relevance to social work ethics. Specifically, social workers remain ethically accountable for serious violations of human rights and they remain responsible for their acts even when those actions are legally authorized or institutionally mandated. Ethical practice requires resistance to the normalization of injustice through uncritical compliance with unjust laws.
Pre-Compliance, Overcompliance, and Minimal Compliance
Violating current laws may place social workers in legal peril. Accordingly, social workers have good reason to be careful about whether, when, and how to engage in acts that infringe current laws. Still, social workers should be particularly vigilant about engaging in pre-compliance or overcompliance, both of which may amplify harm.
Pre-compliance refers to abiding by a law that has not yet passed or does not yet have the force of law. For instance, a state legislature may be debating whether mental health professionals (including social workers) have an obligation to report undocumented clients to ICE, despite their professional duty to maintain client confidentiality. If social workers begin reporting undocumented clients to ICE before such a law is enacted, they are pre-complying. Pre-compliance is ethically problematic because the social worker is inflicting avoidable harm. Social workers would be violating confidentiality even though there is no current law requiring such disclosures. Pre-compliance may also embolden legislators to enact harsher provisions or additional unjust laws. Since the issue is still being debated, social workers should follow their professional duties without fear of violating a current law. By continuing to prioritize confidentiality in practice, social workers signal the importance of professional values as legislators continue to debate the issue.
Overcompliance may arise after an unjust law has been enacted. Consider a state law that prohibits gender-affirming medical care for minors, for instance, puberty blockers, hormone treatments, or gender-affirming surgeries. In my own research, some mental health professionals said they responded to such a law by refusing to serve transgender minors altogether or by declining to help transgender youth and their family members with social transitions (Simpson & Barsky, 2025). The actual state law did not prohibit either of these types of services. In effect, these mental health professionals had overcomplied with the laws, perhaps out of fear of legal or community repercussions, or perhaps because they did not fully understand what the laws prohibited and what types of services for transgender individuals were still legally permissible (and ethically appropriate). In this instance, overcompliance is concerning because it unnecessarily withholds lawful and clinically appropriate services from a vulnerable population.
Minimal compliance refers to adhering to the letter of the law, but intentionally doing so in a restrictive manner to limit its harmful effects. Consider a law that prohibits government-funded agencies from providing mandatory diversity, equity, and inclusion (DEI) training for their staff. A social work agency that provides cultural competence and humility training to its staff decides that it will comply with the law by not making these trainings mandatory; however, it will offer such training on a voluntary basis and encourage its staff to participate for the good of the clients they serve. Minimal compliance may allow social workers to respect legal constraints while remaining attentive to ethical obligations and minimizing potential harm.
When determining whether, when, or how to comply with unjust laws, it may be prudent to obtain legal advice. Social workers need to be aware of the potential legal consequences for how they act (Stevens, 2024), including choices related to pre-compliance, overcompliance, or minimal compliance. Consider a situation in which an unjust law is being challenged in courts. While the law is going through judicial review, is the law enforceable or may social workers refuse to follow the law without fear of legal consequences? Just as social workers believe that clients have a right to informed consent (NASW, 2021, s.1.03), social workers should be informed about the potential benefits and risks of the professional choices that they are considering.
Resistance and Moral Courage
In some situations, resistance to unjust laws may require actions that could put social workers at legal risk. Consider a law requiring school social workers to inform parents if a student discloses that they identify as LGBTQ+. In some instances, students confide in school social workers because they are afraid of how their parents may react—including potential fears about being physically or emotionally abused, or being thrown out of their homes. The duty of confidentiality provides students with a safe place to discuss their concerns. A duty to inform parents, however, means that students are losing a safe place to work through these issues. Potentially, such students are at greater risk of depression, anxiety, and suicidal thoughts. To act in accordance with their professional duties to serve clients and honor confidentiality, social workers might continue to work with students without disclosing anything about their sexuality or gender to their parents. While such social workers are acting ethically, they may be putting themselves in legal peril by not complying with the law.
Engaging in acts of resistance and noncompliance with unjust laws requires moral courage, the willingness to do what is right even though one might experience negative consequences for doing so (Strom-Gottfried, 2020). In the case of the social worker who does not report LGBTQ+ students to their parents, the social worker might be charged, fined, discharged, reprimanded, or subjected to a licensing investigation. Such consequences not only affect individual social workers, but also their family members. Once again, legal advice may be helpful so the social worker understands potential risks and likely risks. For some violations, individuals may be issued a warning and given an opportunity to change their practices. For other violations, severe consequences could result from a single act of noncompliance.
When social workers engage in acts of resistance, they may experience various levels of moral distress. Moral distress refers to “the psychological disequilibrium that arises when institutional factors obligate an individual to carry out a task that violates their professional and/or personal ethics” (Fantus et al., 2023). When social workers experience moral distress, self-care and professional support are essential. Supervision, therapy, peer consultation, and reflective practice can help social workers navigate distress while sustaining their ethical commitment.
Acting in Concert With Others
Resistance to unjust laws is often most effective, and least risky, when undertaken in concert with others. When one individual (acting alone) refuses to comply with an unjust law, it may be relatively easy for social agencies or law enforcement to punish that person and perhaps make that person an example of what can happen if someone does not comply with the law. In contrast, collective resistance can shift public narratives, reduce the likelihood of harsh enforcement, and create momentum for positive reform.
Acting in concert also enables strategic action. Attorneys, community organizers, civil rights organizations, and other advocacy groups can offer legal guidance, strategies, and training to promote effective outcomes (e.g., positive law reforms, protection of client rights, and safeguarding social workers and others who participate in acts of resistance). Drawing on the traditions of nonviolence and civil disobedience (Stevens, 2024; Wynia, 2022) articulated by leaders such as Dr. Martin Luther King, Jr., Representative John Lewis, and Mahatma Ghandi, these groups may help design and implement evidence-based strategies. They may also provide legal defense funds, moral support, advocacy, and other forms of assistance if acts of resistance result in criminal charges, dismissal from work, or other negative consequences.
Conclusion
When laws and social policy align with social work ethics, advancing the rights and interests of clients and communities is relatively straightforward. When laws conflict with social workers’ professional obligations, they may face complex and often painful choices. In such situations, social workers can benefit from acting in concert with others, obtaining guidance and support from relevant experts, and making choices grounded in accurate information, critical thinking, thoughtful debate, and creative problem-solving (Barsky, 2019; Wynia, 2022).
References
Barsky, A. E. (2019). Ethics and values in social work: An integrated approach for a comprehensive curriculum (2nd ed.). Oxford University Press.
Fantus, S., Cole, R., Hawkins, L., & Chakraborty, P. (2023). ‘Have they talked about us at all?’ The moral distress of healthcare social workers during the COVID-19 pandemic: A qualitative investigation in the state of Texas. The British Journal of Social Work, 53(1), 425–447.
Jefferson, T. (1776/2024). The Declaration of Independence. National Archives.
https://www.archives.gov/founding-docs/declaration-transcript
National Association of Social Workers (NASW). (2021). Code of ethics. Author. https://www.socialworkers.org/About/Ethics/Code-of-Ethics/Code-of-Ethics-English
Stevens, S. (2024). Retheorising civil disobedience in the context of the marginalised. Theoria, 71(178), 1–23. https://doi.org/10.3167/th.2024.7117801
Strom-Gottfried, K. (2020). Moral courage. In A. J. Viera & R. Kramer (Eds.), Management and leadership skills for medical faculty and healthcare executives (pp. 209–217). Springer.
United States Holocaust Memorial Museum. (n.d.). The Nuremberg Code. https://www.ushmm.org/information/exhibitions/online-exhibitions/special-focus/doctors-trial/nuremberg-code
World Justice Project. (2023). What is the rule of law? https://worldjusticeproject.org/about-us/overview/what-rule-law
Wynia, M. K. (2022). Professional civil disobedience — Medical-society responsibilities after Dobbs. The New England Journal of Medicine, 387(11), 959–961. https://doi.org/10.1056/NEJMp2210192
Allan Barsky, JD, MSW, PhD, is Professor of Social Work at Florida Atlantic University and author of Social Work Values and Ethics (Oxford University Press).
The views expressed in this article do not necessarily represent the views of any of the organizations to which the author is affiliated, or the views of The New Social Worker magazine or White Hat Communications.