PHIL 2120: Introduction to Ethics
Dr. Robert Lane
Lecture Notes: Monday November 29, 2010

 

[11.] Diversity and Discrimination.

 

Some discrimination in hiring is morally permissible. Employers may discriminate between those who are and those who are not qualified to do a job. DesJardins’ example: if I am hiring someone to work on my company’s website, I may discriminate between applicants who have had experience doing such work and those who have not. (239 / 247) There is nothing wrong with this sort of skills-based discrimination.

 

Nevertheless, there are other examples of discrimination that are objectionable, unethical, unfair, unjust. Ordinarily, refusing to hire someone because he or she is of a specific race or ethnicity, or because she is a woman, is objectionable.[1]

 

 

[11.1.] Attempts to Remedy Unjust Discrimination in Hiring.

 

There are a number of ways of attempting to remedy the problem of objectionable discrimination in hiring. One is for employers to adopt a policy of passive nondiscrimination:

 

passive nondiscrimination (df.): the practice of taking into account only an applicant's ability to do the job when hiring; typically, this will preclude taking his or her race or sex into consideration. It is also known as a procedural fairness policy and an equal opportunity policy.

·         As DesJardins notes, “[t]here is universal support for equal opportunity within all major ethical traditions and contemporary political philosophies.” (242 / 250)

 

This approach to the problem is discrimination is totally passive. It requires only that employers not engage in unjustified discrimination.

 

But many employers believe that it is their duty to go beyond this passive approach and engage in active efforts to reduce employment discrimination.

 

One way in which employers have “actively” fought discrimination is to adopt an affirmative action policy:

 

affirmative action (df.): “any policy or action, aimed at securing a more equal workplace, that goes beyond simple legal access or passive nondiscrimination, but that does not alter the standards or qualifications for employment.” (241 / 249)

 

One type of affirmative action is diversifying the applicant pool:

 

diversifying the applicant pool (df.): a form of affirmative action in which an employer attempts to increase the number of women and minorities in a group of job applicants, e.g., by advertising for applicants in publications that target women or minorities.

·         This form of affirmative action is non-controversial, for the following reason:

 

…in one sense, such actions do put the white male at a relatively disadvantageous position compared to where he would have been had the employer not done it. The candidate pool is larger and therefore his chances of getting the job are lowered. But few would think that the white male has been harmed in an ethically relevant sense because he has not been denied anything to which he has a legitimate ethical claim. No one’s rights are violated when an employer seeks to increase the applicant pool for its positions. (242 / 250)

 

Yet another way employees have attempted to redress this problem involves altering “the previously existing standards or qualifications” for the job, and thus goes beyond affirmative action. This next sort of policy is known as preferential treatment.[2]

 

preferential hiring (df.): a policy that “go[es] beyond affirmative action by seemingly changing the job standards in an effort to hire more women and people of color” (243 / 250); there are two types:

·         preferential hiring from among equally competent applicants: when there is more than one equally qualified best candidate for a job and when there is a woman or minority member among those best candidates, the woman or minority member is to be preferred.

·         preferential hiring from among applicants who are not equally competent: hiring a woman or minority member even though he or she is not the best qualified applicant for the job; critics refer to this form of preferential hiring as "reverse discrimination.”[3]

 

Perhaps the most extreme way in which employers have attempted to address the problem of objectionable discrimination in hiring is by instituting a hiring quota:

 

hiring quota (df.): a hiring standard set by an employer when it decides that a certain number of women or minorities will be hired regardless of the number or qualifications of males or Caucasians who apply.

 

 

[11.2.] The Argument from Merit (Against Preferential Hiring).

 

The following argument is directed against preferential hiring from among applicants who are not equally competent. It is a deontological argument, in that it essentially involves the backwards-looking (and thus non-consequentialist) concept of desert:

 

1.      The most qualified candidate deserves the job.

2.      To deny a job to the person who deserves it is unjust.

3.      Preferential hiring policies result in someone other than the most qualified candidate getting the job.

4.      Therefore, preferential hiring policies are unjust.

 

DesJardins notes four things that we must consider in order to figure out whether this is a sound argument (246-47 / 254):

 

a. “[W]e need to decide if in fact such a merit principle [is] a reasonable requirement of justice.” In other words, is premise 2 true?

·         It might be closer to the truth for some jobs than for others:

i.     it seems more plausible for a job that is publicly advertised, with explicit qualifications in the job ad, rather than for a job that is not so advertised;

ii.   it seems more plausible for a job with a publicly-owned corporation rather than a privately owned company, the owner of which hires his daughter rather than someone who is more qualified.

·         Premise one treats “jobs more as social goods that should be distributed on fairness grounds rather than as the private property of business owners that can be distributed as they see fit.” (247 / 254)

·         DesJardins concludes: “the most qualified candidate has a prima facie legitimate claim to be hired only for positions for which the qualifications are publicly and previously advertised, assuming that the qualifications themselves are fair and objective.” (247 / 255) Note that even in this circumstance, the candidate has only a prima facie legitimate claim to the job, not an absolute claim.

 

b. “[T]he qualifications used to establish merit must themselves be fair and open to all.” In other words, premise 1 is true only if everyone has an equal opportunity to become the most qualified candidate. The process by which people are educated and trained such that they might be qualified might itself be unfair and unjust, in which case it would seem that premise 1 should be rejected.

·         DesJardins asks us to consider some specific job and what might seem to be reasonable qualifications for it, and then asks: “How many of these qualifications have been ‘earned’ and how many are a matter of luck or random chance?” (247 / 255)

·         Edwin Hettinger[4] has argued in support of preferential hiring. On his view, a person is not responsible for all, or even for most, of the factors that make him or her the best candidate for a job: innate abilities, home environment, socio-economic class of parents, quality of the schools attended, and luck. Since the applicant is not responsible for these things, and since these things contributed to his or her being the best qualified, he or she doesn't deserve anything on the basis of his or her qualifications. [Hettinger is assuming that if a person P deserves something on the basis of x, then P must be responsible for x, i.e., x must be the result of a voluntary action performed by P.]

 

c. There must be “some reasonable way to determine and measure qualifications so that we have a way to decide who is most qualified.” Extending this point in a way DesJardins does not... Even under the assumption that premise 1 is true, it can still sometimes be difficult to tell who in fact is the most qualified candidate for a job. Further, the managers who are responsible for making such determinations may, whether consciously or not, discount a person’s qualifications simply because she is a woman, or because he or she is a racial minority. Thus, a defender of preferential hiring might say that it is a way of helping to ensure that the most qualified person does get the job despite having been judged not to be the most qualified.

 

d. “[W]e need to consider if diverse ethnic or gender background might itself serve as a job qualification.”

 

Might it be legitimate for [a Catholic all-women’s college] to give hiring preference to Catholics and women? Is it legitimate for a medical practice to give preference to female gynecologists? Might a company seeking to attract new minority business give preference to hiring minority employees? More generally, given the beneficial opportunities that are provided by a diverse workforce, could a business claim that gender and ethnic diversity are themselves qualifications in that they make positive contributions to the workplace? (248 / 256)

 

If the answer to a given question is “yes,” then this will count as prima facie evidence that premise 3 of the Argument from Merit is false with regard to the relevant hiring context.

 

 

[11.3.] The Argument from Equality (Against Preferential Hiring).

 

Another deontological argument against preferential hiring is as follows:

 

1.      Hiring policies that discriminate on the basis of traits that are not job-relevant deny candidates who lack those traits equal treatment and respect.

2.      Any policy that denies job candidates equal treatment and respect is unjust.

3.      Therefore, hiring policies that discriminate on the basis of traits that are not job-relevant are unjust.

4.      Preferential hiring policies do this, since they discriminate based on sex and race when those traits are not job relevant.

5.      Therefore, preferential hiring policies are unjust.

 

This is the sort of criticism that motivates the claim that preferential hiring of less qualified women and minorities is “reverse discrimination.”

 

 

[11.3.1.] Hettinger's Criticism.

 

Edwin Hettinger has criticized this argument, as follows:

 

Traditional racism and sexism had motives and consequences that rendered them immoral. But preferential hiring is different than traditional racism/sexism in two ways: (1) intentions/motives and (2) consequences.

 

 

traditional racism/sexism

preferential hiring

motive/intent:

“based on contempt/loathing for blacks” or on a belief that blacks and women are inferior

prevention or compensation (as described below)

consequences:

·         stigmatization

·         perpetuating stereotypes

·         makes belonging to the class of minorities or women burdensome

·         adds to the "overabundant supply" of social goods (power, wealth, opportunity, authority, etc.) enjoyed by one group at the expense of others

·         a more egalitarian distribution of social goods

 

[egalitarian (df.): characterized by human equality, especially with regard to social, political and/or economic goods.]

 

Applied directly to the argument as formulated above, Hettinger’s position seems to be that what premise 2 says is in general true, but it is not true of preferential hiring. In effect, he is arguing that even though preferential hiring does discriminate on the basis of traits that are not job-relevant, it is nevertheless not an unjust practice, because it has good consequences and the motives behind it are good.

 

 

[11.4.] The Argument from Compensation (in Support of Preferential Hiring).

 

This is a backward-looking argument. The point is that preferential hiring will help to right past wrongs and is thus a form of compensatory justice. Thus, like the two anti- preferential hiring policies we’ve examined, this is a deontological argument.

 

  1. Individuals who have been harmed should receive compensation for that harm.
  2. Racial and sexual discrimination in past hiring harmed women and minorities.
  3. So, women and minorities should receive compensation for that harm.
  4. Preferential hiring will help to compensate women and minorities for that harm.
  5. So, preferential hiring is morally permissible.

 

According to DesJardins, this argument is sound only if three conditions are met (250 / 258):

a.       the compensation received as a result of preferential hiring must be proportionate to the harm caused by past discrimination;

b.      the party doing the compensating must be the same party who is responsible for the harm; and

c.       the party being compensated must be the same as the party who was harmed.

 

 

[11.4.1.] Pojman’s Criticism.

 

A well-known criticism of this argument comes from Louis Pojman.[5]

 

Here is Pojman’s statement of a form of the argument that defends preferential hiring of those less qualified than others:

 

White males as innocent beneficiaries of unjust discrimination of blacks and women have no grounds for complaint when society seeks to rectify the tilted field. White males may be innocent of oppressing blacks and minorities (and women), but they have unjustly benefited from that oppression or discrimination. So it is perfectly proper that less qualified women and blacks be hired before them.

The operative principle is: He who knowingly and willingly benefits from a wrong must help pay for the wrong.[6]

 

Pojman responds as follows:

·         Suppose that as a child, you grew up next to young LeBron James.[7] Your parents, envisioning that you will one day have a passion for basketball and want to be an NBA star, buy an expensive growth hormone that will cause you to grow an extra 18 inches in height. But before they can give it to you, LeBron’s parents steal it and give it to him.

·         Years later, LeBron is 18 inches taller than you and an NBA superstar, earning millions of dollars. You're just an average guy with an average job. LeBron James is an innocent beneficiary of the unjust actions performed by another, and you are at a disadvantage in life compared to him. In other words, LeBron has unfairly benefited from, and you are at an unfair disadvantage as a result of, past wrongdoing.

 

Pojman makes two claims based on this story:

 

1.      LeBron James owes you nothing. You may be owed reparation by the specific individuals who wronged you (his parents), and it may be good [supererogatory] of LeBron himself to give you tickets to his games, or to leave you something in his will, but he is not morally obligated to do anything like this.

 

Analogously, those who are currently more qualified as a result of past unfair discrimination (viz., white males) do not personally owe anything to those who are currently less qualified as a result of that same discrimination.

 

2.      You are not owed LeBron’s job, even if you are minimally qualified for it. Imagine that each of you are both on the high school basketball team, and each of you can play the same starting position as well as the team needs you to play it (LeBron, of course, can play it much better than you, but you can play minimally well). The fact that you would have been as good as LeBron is now had someone not cheated you as a child does not imply that you deserve to play in his position.

 

Analogously, the fact that a member of one group would have been as qualified as others had they not been cheated (of better housing, health, education, etc.) as children does not imply that that person deserves a given job more than someone who is better qualified.

 

Pojman concludes: “Sometimes a wrong cannot be compensated, and we just have to make the best of an imperfect world.”[8]

 

 

[11.5.] The Argument from Prevention (in Support of Preferential Hiring).

 

1.      Preferential hiring will prevent future unjust distribution of jobs and accompanying social goods (wealth, authority, power, opportunity, etc.) by (a) correcting for the results of past discriminatory hiring decisions and (b) preventing future discriminatory hiring decisions.

2.      A policy that prevents future unjust distribution of jobs and accompanying social goods is morally permissible.

3.      Therefore, preferential hiring is morally permissible.

 

This is a forward-looking argument; more specifically it is consequentialist, and in particular utilitarian.

 

According to this argument, preferential hiring is justified because it will prevent future objectionable discrimination:

·         future unjust distribution of jobs and accompanying social goods (wealth, authority, power, opportunity, etc.): the goal is to correct an existing imbalance in the distribution of jobs; even if all discrimination were to end today, women and minorities would still be underrepresented in some professions because of past discrimination; so they will continue to lack the same amount of wealth, etc., enjoyed by white males

·         future discriminatory hiring decisions: the assumption is that hiring decisions will be unfair without preferential hiring, because (whether or not they are conscious of it) many people who make those decisions are biased; preferential hiring is meant to correct existing bias and ensure that the most qualified person gets the job, even though he or she is not judged to be the most qualified person.

 

 

 

Stopping point for Monday November 29. For next time, finish reading DesJardins ch.11.

 

 



[1] As we discussed earlier, the Civil Rights Act of 1964 allows for exceptions when a person’s race or sex is an actual condition for being able to perform a specific job, e.g., it is legal for a company that makes women’s clothing to hire only women to model their products, or for a movie studio producing a biopic of Johnny Cash to hire only a white man to play that role.

[2] Because DesJardins defines “affirmative action” so that it does not involve changing job standards or qualifications, preferential treatment does not qualify as affirmative action for DesJardins. But some other authors use the phrase “affirmative action” more broadly, so that preferential treatment does count as a form of affirmative action. Note that DesJardins himself slips into using “affirmative action” when describing the University of Michigan Law School case and the amicus curiae brief filed by General Motors (245 / 252).

 

[3] Isn’t preferential treatment illegal because of the Civil Rights Act of 1964?Nnot according to the majority decision in United Steel Workers of America v. Weber (1979), according to which the law permits quotas and preferential hiring of women and minorities. This has been a very controversial decision, with opponents of such hiring practices complaining that it is a case of judicial overreach, interpreting a law in a way that goes against what the law plainly says in order to promote some social goal the Court holds to be desirable.

[4] “What is Wrong with Reverse Discrimination?” Business and Professional Ethics Journal 6, no. 3 (Fall 1987): 39-55. Hettinger is a professor of philosophy at the College of Charleston (http://www.cofc.edu/hettinger/ , accessed November 27, 2010).

[5] Louis Pojman, “The Moral Status of Affirmative Action,” Public Affairs Quarterly 6 (2), April 1992, pp.181-206. Reprinted in Robert Larmer, ed., Ethics in the Workplace. Page references in these lecture notes are to the reprint. Pojman died in October 2005. He was a professor of philosophy at United States Military Academy. For more information on Pojman, see http://www.louispojman.com/ , accessed November 27, 2010.

 

[6] Pojman, 449.

 

[7] Pojman uses Kareem Abdul Jabbar in his version of the objection.

 

[8] Pojman, 405.




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