The Ethics of Job Discrimination

Learning Objectives
1. Understand both the original morally neutral meaning of "discrimination"; its acquired judgmental meaning as deciding against members of a certain class because of a morally unjustified prejudice against that class; and identify historical and current victims of discrimination. 2. Distinguish isolated from institutionalized and intentional from unintentional di scrimination and understand the historical shift in emphasis away from identifying and remedying isolated individual discrimination and toward identifying and remedying institutionalized and unintentional discrimination. 3. Consider the evidence of continuing sex and race based job discrimination provided by average income, lowest income, and desirable occupation comparisons. 4. Understand the utilitarian argument against discrimination and the liberal and conservative objections to it; the Kantian argument against discrimination; and justices based arguments against discrimination. 5. Distinguish various practices generally recognized as discriminatory in recruitment, screening, promotion, conditions of employment, and discharge. 6. Understand the controversies concerning sexual harassment and the extension of protected status to groups not identified by race and sex. 7. Distinguish affirmative action policies, involving reverse preferences, from equal opportunity policies: understand utilization analysis, the principle means of enforcing affirmative action; the present tangled legal situation including the banned practices of quotas and set-asides; the principal objection to affirmative action as "reverse discrimination." 8. Understand the principal justice-based and utility-based arguments in favor of affirmative action; the principal objections to these; the principal utilitarian and justice-based replies to these objections; and Velasquez's overall assessment of these. 9. Understand the legitimate worries about and suggested guidelines for implementation of affirmative action; the controversy regarding comparable pay for comparable work; and Velasquez's concluding argument, from a selfinterested business perspective, for accommodating women and minorities in the workforce.

Overview

That affirmative action is one of the most controversial issues in our society is illustrated by the dueling opinions of Bill Clinton ("Mend it Don't End It") and California Governor Pete Wilson ("End Preferential Treatment"). Clinton argues for a continuation of affirmative action policies, with some restrictions, on the basis of the principle that all are created equal and the facts of enduring inequities due to past discrimination. California Governor Pete Wilson counters that affirmative action is directly contrary to the Jeffersonian principle of "Equal rights for all, special privileges for none"; that it is by definition discrimination and, as such, unjust; and should be abolished immediately. Discrimination in its originally, morally neutral, sense means "to distinguish one object from another" but the word has acquired judgmental and morally accusatory connotations in connection with wrongful acts of discrimination historically victimizing African Americans; women; Hispanics, Asians, and Native Americans; and the disabled. Such morally invidious discrimination may be defined as "the wrongful act of distinguishing illicitly among people not on the basis of individual merit but on the basis of prejudice or some other morally invidious attitude." Such morally invidious discrimination has three key features: (1) not being based on individual merit; (2) deriving from some morally unjustified attitude; and (3) having a harmful or negative impact on the interests of those against whom it is directed. Harmful impacts of job discrimination include, most importantly, loss of jobs, promotions, and pay. Its past and present victims include religious groups, ethnic groups, racial groups, and sexual groups. Further distinctions may be drawn between isolated and institutionalized discrimination; and between intentional and unintentional discrimination. Initial movements against and attempts to remedy job discrimination through Equal Opportunity measures focused principally on instances of isolated intentionaldiscrimination; current Affirmative Action policies attempt to address problems of institutionalized unintentional discrimination. Equal Opportunity remedies are unable to adequately address these forms of discrimination because it is generally impossible to tell, for a given individual, whether that individuals loss of the job, raise, or promotion was due to systematic discrimination or random factors. Statistical measures of what happens to groups in hiring, compensation, and promotion, however, amply evidence that institutionalized unintentional discrimination still exists. Average income comparisons, lowest income comparisons, and lowest income comparisons continue to show differences in compensation, promotion and hiring that are not wholly explainable in terms of educational and other merit-related factors. Furthermore, rather than being on the decline (as is commonly believed), statistical measures indicate that such disparities are actually increasing. Current and expected trends also seem unfavorable to women's and minorities prospects. Women continue to be concentrated in traditionally female (and lower paid) occupations, and child-bearing

and child-rearing responsibilities continue to interfere with career continuity and advancement and continue to fall, predominantly, on women. Minorities' prospects for economic advancement are hampered by declining availability of jobs with relatively low educational requirements together with continued disparities in the quality of educational opportunities afforded to these minorities. Velasquez concludes, "unless we embark on some major changes, the situation for minorities and women will not improve" (387). Such enduring inequalities of status, position, power, wealth, and income as those just canvassed seem, on their face, violations of the principle that all "are created equal" and endowed with equal rights to "life, liberty, and the pursuit of happiness." Indeed, it is precisely historical violations of this principle -- in the form of unequal treatment of minorities and women -- which seem to underlie the current disadvantaged statuses of minorities and women. African Americans brought to this country as slaves, for instance, were not recognized as people, and no legal powers, and were deemed by the Supreme Court to be "so far inferior that they had no rights that the white man was bound to respect" (Dred Scott v. Sanford: 1857). A woman, through much of the 19th century, could not vote, serve on juries, or bring suit in their own names; once married she was forbidden to hold property in her own name, and according to the Supreme Court had "no legal existence apart from her husband, who was regarded as her head and representative in the social state." Discrimination in employment can be argued to be morally wrong on utilitarian grounds, on Kantian grounds, and by appeal to considerations of justice. Utilitarians argue that social productivity is optimized, and the general welfare, hence, best promoted, when jobs are awarded on the basis of competency or "merit"; race, sex, and religion being generally unrelated to job performance have nothing to do with merit; so, assignment of jobs on these bases is inefficient, and hence (on Utilitarian principles) morally wrong. Liberal critics of this argument respond that there's more to the general welfare than economic efficiency, and that racial and sexual discrimination may be warranted in cases where other factors outweigh whatever losses in productivity they cause. This may especially be true of the "reverse preferences" employed in affirmative action programs and cite the utilitarian advantages of needs-based distribution and the culturally enriching effects of diverse workplaces in this connection. Conservative critics of the utilitarian argument maintain that the division of labor along sexual (and previously, it was argued, racial) lines is most efficient and best promotes the general welfare because the natural (nurturing, sensitive, emotional) abilities of women suit them best to childcare and the natural (aggressive, competitive, rational) abilities of men suit them best to exercise authority and control over business and financial matters. According to the Kantian argument, discrimination is wrong because it treats people, not as ends, but as means

to whatever social purposes the discrimination is supposed to serve; whether these be the racist and sexist ends of bad old fashioned discrimination (BOFD), or the socially progressive ends (of achieving diversity and compensating the disadvantaged) of the "reverse discrimination" involved in affirmative action (AA). Alternately, Kantians may argue that discrimination is a nonuniversalizable practice: those who discriminate would be unwilling to be similarly discriminated themselves. John Rawls argues that the Principle is a fundamental principle of distributive justice such as everyone would choose from "behind the veil of ignorance": consequently, discrimination is unjust. Another justice based argument invokes the fundamental principle of justice (Individuals who are equal in all respects relevant to the kind of treatment in question should be treated equally); and maintains that discrimination violates this principle (since race and sex are generally irrelevant to job performance), and is, consequently, unjust. Effects of bad old-fashioned discrimination continue to exist and be perpetuated by various practices widely recognized as discriminatory. These include recruitment practices such as word of mouth referrals of present employees; screening practices requiring job qualifications irrelevant to the task or depending on biased interviewers; promotion practices relying on tracking systems, seniority, and reliance on subjective recommendations of biased supervisors; conditions of employment that involve payment of unequal wages to people doing essentially the same work; and discharge policies including firings based on negative recommendations of biased supervisors and reliance on seniority for determining layoffs. Sexual harassment, a form a discrimination directed primarily at women, is difficult to define and hence to police and prevent. Nevertheless, Equal Opportunity Commission (EEOC) guidelines enacted in 1978 attempt to define what constitutes sexual harassment and impose strict liability on employers for sexual harassment engaged in by their employees. Sexual harassment is immoral due to its infliction of psychological harm on the harassed individual; violation of the victim's most basic rights to freedom and dignity; and and unjust use of the unequal power that an employer or supervisor wields over an employee. Controversy arises from the vagary of what constitutes an "intimidating, hostile, or offensive working environment"; the subjectivity of the "unreasonable interference with an individual's work performance" test; concern about restricting free speech rights for such atmospheric and subjective reasons; and concerns about the "strict liability" being contrary to basic principles of retributive and compensatory justice according to which one is justly held liable only for harms one knowingly and voluntarily inflicts. In favor of "strict liability" some it is argued that the effects of harassment can be so devastating that it is necessary to dip into the "deeper pockets" of the employer in order to justly compensate its victims. Finally, other groups besides women and minorities are liable to be discriminated against and victimized by false stereotypes in the workplace. Older workers and disabled workers

are currently protected by law. As yet unprotected groups who aspire to legal protection include homosexuals and the overweight. Equal Opportunity policies aim to combat the continuing practice of BOFD by negative means including prohibitions against sexually and racially discriminatory practices aiming to ensure that employment decisions are blind. Affirmative Action policies, by comparison, aim to combat the continuing effects of BOFD through positive measures which aim to achieve more representative distributions of women and minorities in the workplace through the application of reverse preferences which discriminate in favor of individuals belonging to groups previously discriminated against. The principal motivation for Affirmative Action policies is the perceived inability of Equal Opportunity policies to remedy continuing unintentional institutionalized effects of BOFD. The principal means of implementing Affirmative Action is utilization analysis. Utilization analysis compares the representation of minorities and women in the organization under scrutiny with their representation in the available labor pool, across nine categories. Underutilization is deemed to be present when the % of minority or female representation in any given category is less than their % representation in the available labor pool. If underutilization is determined then the firm must establish specific and measurable goals and timetables designed to correct this and undertake special efforts to recruit women and minorities so as to meet these goals and timetables. Acceptable measures, however, must not involve "rigid quotas" (outlawed by California v. Bakke: 1978); nor may seniority be set aside during layoffs. Set asides -- by which a government or governmental agency earmarks a percentage of its budget exclusively for hiring minority contractors -- are also legally prohibited "except as a last resort" in "an extreme case" (Richmond v. J. A. Corson Co.: 1989). This tangled legal situation reflects the raging moral and political dispute over affirmative action. Opponents argue that Affirmative Action is morally practice involves unjust "reverse discrimination" against white males which (in addition to being unjust) inefficiently awards jobs on grounds other than merit. Defenders of affirmative action reply that Affirmative Action is justifiable compensation for past injuries suffered by women and minorities due to past discrimination and (besides being just) is an effective instrument for achieving socially desirable goals of diversity and inclusion. According to the compensatory justice argument, white males have intentionally and unjustly wronged women and minorities through past discrimination and, consequently, women and minorities are justly entitled to be temporarily accorded reverse preferences in admissions, hiring, and promotions, where they had previously been discriminated against. That white males are disadvantaged by this, it is not unjust, since it was white males who benefited from the past discrimination. Opponents of this argument reply (1) that present white males are not the parties who

intentionally and unjustly wronged women and minorities and (2) present women and minorities are not the ones who were intentionally wronged; therefore, no compensation is due. Against the second point, Judith Jarvis Thompson argues counters that "even those who were not themselves downgraded have suffered the consequences of the downgrading of other blacks and women" (401); against the first Martin Reddish counters that white males "whether or not . . . [they] have themselves participated in acts of discrimination have been the beneficiaries" (401). According to Velasquez's assessment, while Jarvis Thompson's claim that present women minorities and women are victims of past discrimination is strong, Reddish's claim is weak unless it can be shown that present white males are consciously or unconsciously in collusion with past discriminators since, among beneficiaries of injustices, only the perpetrators of the injustices owe compensation. According to the utilitarian argument for Affirmative Action, Affirmative Action promotes the general welfare by undoing the harmful effects of past discrimination, especially impoverishment, leading to unmet needs, resentment, lack of self respect, social discontent, and crime. Other utilitarians counter that since race and sex are irrelevant selection criteria, having nothing to do with merit, Affirmative Action diminishes the general welfare by decreasing economic productivity. Utilitarian defenders of Affirmative Action may, in turn, reply that race is highly correlated with need, and distribution according to need -- in line with the principle of declining marginal utility -- is most beneficial. Other objections to the utilitarian argument that Affirmative Action is socially beneficial (1) cite the social costs of white male frustration and resentment or (2) maintain that race is not an appropriate indicator of need, and Affirmative Action, consequently, ought to be based on some more appropriate indicator, e.g., wealth. A strong reply to the second point maintains that the psychological harm due to explicitly race based and sex based discrimination can only be undone by race based and sex based reverse discrimination. This reply is countered in turn by claims that receiving race and sex based preferences further psychologically harms the recipients by raising suspicions (in their own minds, and the minds of others) that they didn't earn their positions on merit. The equal justice argument holds that the only criteria relevant to the distribution of benefits and burdens are ability, effort, contribution, and need, agreeing with opponents of Affirmative Action that sex and race are not relevant criteria. However, they continue, statistics show that jobs in our society are still distributed on the basis of sex and race in ways that disadvantage women and minorities due to the continuing effects of unintentional institutionalized discrimination: Affirmative Action merely serves to counteract the effects of such unintentional institutionalized discrimination and actually results in a near "level playing field" on which subtle lingering racist and sexist attitudes and preferences are counterbalanced by legally mandated counter

preferences. This seems to be, in Velasquez's eyes, the strongest argument favoring Affirmative Action. To those who object that affirmative action programs involve unjust discrimination against white males it may be replied -- invoking the definition of wrongful discrimination (above) -- that reverse discrimination, since it does not discriminate "on the basis of prejudice or some other morally invidious attitudes" is not wrongful or unjust. To those who argue that preferential treatment violates the principal of equality itself, it may be replied that race and sex, at present, though irrelevant to productivity, are relevant to achieving social justice in the form of an equal opportunity to succeed for all by countering the lingering effects of past discriminatory injustices. To those who argue that affirmative action has hidden social and psychological costs for women and minorities, it may be replied that since Affirmative Action merely counterbalances lingering effects of past discrimination, and hence results in selection processes which are on balance even handed, women and minorities needn't apologize for their Affirmative Action assisted attainments. On Velasquez final assessment the conclusion that may be justly drawn from all this is twofold: (1) that Affirmative Action is a morally permissible means to achieve social justice, but (2) it is not morally required as a means to achieve social justice. Overall morality aside, legitimate worries about the implementation of affirmative action remain; most notably the following: (1) that weighting race and sex very heavily will result in assignments of tasks to unqualified people; (2) that in critical occupations where human interests hang mightily in the balance merit should be the only selection criterion; (3) that weighting sex and race in socially important decisions makes us more race and sex conscious, not less so, as we should be striving to become. Suggested implementation guidelines that address these three concerns would require minimum levels of competency to insure that tasks are not assigned to unqualified individuals; that the more critical the occupation, the less racial and sexual considerations should be allowed to trump competency differences, and the less critical the more so; that preferences should be extended to minority and women candidates only to redress underutilization; and that accommodation of the special needs of women and minorities in the workplace should be undertaken along with Affirmative Action based preferences. Comparable pay for jobs of comparable worth proposals are radical proposal for redressing sex-based earning differentials: where Affirmative Action tries to get women into higher paid positions, comparable pay schemes propose to make positions women already hold higher paid. Implementation of such proposals would require rating each job for compensation worthy features such as effort, productivity, and accountability and then fixing compensation on the basis of these ratings. The justification for this would be that employees who are equal in all respects relevant to compensation-worthiness should be equally compensated. Objectors reply that the

labor market is the most appropriate determiner of compensation-worthiness; that assigning points to jobs would result in a bureaucratic nightmare; and that women could apply for higher paying "male" jobs if they chose to, but choose not to due to other advantages associated with traditionally "female" occupations. Advocates of comparable pay counter that "woman's work" is lower paid because women predominantly do it -- for historical discrimination-based reasons -- not because of impersonal labor market factors of supply and demand. Moral considerations aside, Velasquez concludes, there are factors favoring accommodating women and minorities in the workplace, even from a purely self interested business perspective. Since white males represent a rapidly shrinking proportion of the workforce, women an minorities have to be incorporated into the workforce to meet staffing needs and companies that effectively accommodate the special needs of women and minorities will, in the future, enjoy increasing competitive advantages in meeting their staffing needs over those which don't.