Learning Objectives & Overview | Course Syllabus | LH's Virtual Office

Business Ethics: Concepts & Cases: Chapter 7 Outline
The Ethics Job Discrimination

Introduction

Mend it don't end it. (Bill Clinton 1995 ) {5th edition}

complete text
Guiding Principles

all are created equal
& endowed with inalienable rights, to life, liberty, and to pursue happiness

Our historical trajectory
1. to establish & preserve these principles for white male property holders
2. to make extend them to all and make them real in the lives of all our citizens
Our present situation: examples of enduring inequities due to past discrimination

senior management positions:

.6% African-Americans
.4% Hispanic-Americans
.3% Asian-Americans
4% Women
95% White Males

home loan application: likelihood of rejection given identical credentials

African-Americans: 2 times more likely than whites
Hispanic-Americans: 1.5 times more likely

Diagnosis: there persists "the kind of bigotry that can affect the way we think even if we're not conscious of it, in hiring and promotion, and business"
Prescription: Affirmative Action (beyond provision of equal opportunity) subject to the following constraints

no preferences for unqualified individuals
no quotas
"no illegal discrimination of any kind, including reverse discrimination"
as soon as a program has succeeded, it must be retired

End Preferential Treatment (Pete Wilson) {5th edition}

Guiding principle: "Equal rights for all, special privileges for none." (Jefferson)
History:

"Pursuit of that ideal has been the key to American success since 1776. "
"Today that fundamental American principle is being eroded by preferential treatment on the basis of group membership rather than individual merit in connection with jobs, awarding of public contracts, and college admissions."

Diagnosis: AA is "by definition, discrimination" and, as such, "It's not fair."
Prescription: Abolish Affirmative Action

Michigan {6th edition}

Supreme Court ruling: Grutter v. Bolinger (2003)
- UM's affirmative action program for undergraduate admissions unconstitutional because it was not "narrowly tailored"and so weighed race too heavily.
- UM's affirmative action policy for law school admissions upheld as "flexible enough to ensure that each applicant is evaluated as an individual and not in a way that makes race or ethnicity the defining feature of the application"
- Majority Opinion reasoned that "diversity is a compelling state interest that can justify using race in university admissions" due to its
  - political utility: "because universities, and in particular, law schools, represent the training ground for a large number of the Nation's leaders"
  - and economic utility: "Major American businesses have made clear that the skills needed in today's increasingly global marketplace can only be developed through exposure to widely diverse people, cultures, and viewpoints"
- Amicus curiae ("friend of the court") brief by a who's who of major corporations had argued that "individuals who have been educated in a diverse setting are more likely to succeed" due to
- Justice Thomas's Dissent: "racial classifications are per se harmful and ... almost no amount of benefit in the eye of the beholder can justify such classifications"
  - it's impossible to "tell when racial discrimination benefits (rather than hurts) minority groups"
  - there's no evidence "that racial discrimination is necessary to remedy general societal ills"
  - there are ills that racial discrimination itself engenders
    - "attitudes of superiority" or feelings of being "entitled" on the the part of the favored
    - "feelings of resentment" on the part of the disfavored

7.1 Job Discrimination: Its Nature

Its reality: paired interviewees:
- Male (Chris) v. Female (Julie): Chris offered better paying more responsible jobs (ABC "a few years ago")
- White v. Black & Hispanic: Blacks & Hispanics only 1/2 as many job offers ("early 1990s")
Discrimination

original (morally neutral) meaning of the term: "to distinguish one object from another"
acquired judgmental (morally accusatory) connotations

unfair distinctions underwriting unjust treatment: "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." (371)
historically directed against members of certain out-groups

African-Americans (racial discrimination)
women (sexism)
Hispanics, Asians, Native Americans
the disabled

Discrimination in Employment

Definition: "to decide adversely against members of a certain class because of a morally unjustified prejudice against members of that class."
Three elements: a decision toward one or more (prospective) employees

that is not based on individual merit, e.g.,

seniority & experience,
educational qualifications & job performance ratings.

that derives from some morally unjustified attitude

such as racial or sexual prejudice
or false stereotypes

that has a harmful or negative impact on the interests of the employees, e.g., by costing them

jobs
promotions
pay

Past & Present Victims of Discrimination

religious groups: Catholics, Jews
ethnic groups: Italians, Poles, Irish
racial groups: African Americans, Hispanics, Asians
sexual groups: women, homosexuals

Forms of Discrimination: Intentional and Institutional Aspects

**FORMS OF DISCRIMINATION**
	Intentional	Unintentional
Isolated	a single individual deliberately discriminates on the basis of personal prejudices.	a single individual unwittingly discriminates due to their unthinking acceptance of prevalent practices, stereotypes and attitudes.
Institutional	routine behavior of an institutionalized group deliberately discriminates on the basis of the prejudices of the group	routine behavior of an institutionalized group unwittingly discriminates due to institutionalized practice, stereotypes, attitudes, or corporate culture

Historical Shift

away from identifying & remedying instances of isolated intentional discrimination

Title VII of the Civil Rights Act of 1964
"It shall be an unlawful employment practice for an employer to fail or refuse to hire or discharge any individual, or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment because of such individuals race, color, religion, sex, or natural origin; or to limit, segregate, or classify his employees or applicants for employment in any way that would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee because of the individual's race, color, sex, or natural origin."

toward attempting to root out institutional unintentional discrimination

evidenced by:

disparities of a minority's representation within the ranks of a firm
as compared to the minority's representation in the general population.

Dept. of Labor Guidebook of 1970 calls for

"goals and timetables . . . to . . . increase materially the utilization of minorities and women at all levels and in all segments . . . where deficiencies exist."
"Under utilization" is defined as "having fewer minorities or women in a particular job classification than would reasonably be expected by their availability."

shift back again advocated by some

the brief for turning back

discrimination is an act directed at a specific individual,
therefore, we should not say discrimination exists unless we can point to a specific individual who has been discriminated against.

difficulty: it's generally impossible to know (or show) that a particular individual was discriminated against

many randomizing factors enter into who wins out in hiring and promotion decisions

who the competitors were
quirks of the interviewer:

maybe it was your haircut or tie
or their personality clashed (with you) or meshed (with some competitor)

generally impossible to tell. for a given individual whether their loss of the job, raise, or promotion

was due to systematic discrimination
or random factors

it's only possible to detect systematic discrimination en masse

by looking at statistical measures of what happens to groups
in hiring, compensation, and promotion

7.2 Discrimination: Its Extent

Statistical indicators of discrimination provide prima facie evidence of it

comparison of average benefits provided between groups within the institution
comparison of occupants of lowest levels between groups
comparison of occupants of highest positions between groups

What such comparisons show society wide

sexual and racial and discrimination is present in American society as a whole
"for some segments of the population . . . discrimination is not as intense as it once was"

young college-educated black males
females
Asians

Average Income Comparisons

Contrary to a commonly held belief: the income gap between whites and some minorities has been increasing rather than decreasing.

Whites v. Blacks & Hispanics: Table 7.1

In 1975: Average income

of a black family = 65% that of a white family
of a hispanic family = 69% of a white family

In 1994: 63% of white for both black & Hispanic
In 2001: 60% black | 62% hispanic
Black unemployment 1992-1995 ran around double white unemployment.
these disparities exist at all education levels (Table 7.4)

Men v. Women: Table 7.2

In 1981 women earned 59% of what men earned: Table 7.2
In 2001 women earned 69% of what men earned: Table 7.2
These disparities cut across all education levels: Tables 7.3 & 7.4
These disparities cut across all occupations: Table 7.5

Lowest Income Comparisons

Poverty level 2003: $18,660 for a family of four: Table 7.6

Whites 8%
Blacks 24%
Hispanics 22%

Summary

Table 7.6: poverty rates among hispanics and blacks approximately 3 times those for whites
Table 7.7: families headed females more than twice as likely (27%) to be poor as households headed by males (12%)

Desirable Occupation Comparisons

glass ceiling phenomenon: "[L]arger percentages of white males move into the higher paying occupations, while minorities and women end up in those that pay less and so are less desirable."
- although many white women and non-white men have moved into middle-management positions in recent years
- they haven't yet been allowed into the top-paying senior management and top executive positions.
Facts & Figures (Table 7.4)

show differences in compensation not wholly explainable in terms of educational differences
sexual differences: 2002 average annual income (Table 7.4)

female college graduate: $47,747
male high school graduate: $46,252

racial differences: 2002 average income

with bachelor's degree: white: $63,609; black: $47,612; hispanic: $47,714
with high school diploma: white: $35,168; black: $28,179; hispanic: $28,984

Even when we factor out other causes these only account for about 1/2 the difference

work experience & work continuity
self imposed work restrictions & absenteeism

Current & expected trends unfavorable to women's and minorities' prospects

most new entries into the workforce during the 1990s were women & minorities
impediments to advancement

women

concentration of women in traditionally female (and traditionally low paid) jobs (Table 7.9)
exclusion from top management positions: the "glass ceiling"
child-bearing & child-rearing responsibilities

interfere with career continuity & advancement
fall predominantly on women:

in two professional families woman 6 times more likely to stay home with sick child
52% of married women VPs vs. 7% of married men VPs are childless

sexual harassment in the workplace: 42% of women report some

minorities: underskilled & undereducated relative to requirements for high-paying jobs

fastest growing fields: professions with extremely high educational requirements
- e.g., technicians, engineers & health professionals
decline in jobs with relatively low educational requirement
- e.g., factory laborers, miners, farmers
significant portions of nonwhites are educationally disadvantaged due to
- inferior primary & secondary schooling
  - poorer neighborhoods have poorer public schools
  - poorer families have less ability to send their children to private schools
- diminished access to higher (college & technical) education
  - academic handicaps (including lower test scores) due to inferior primary & secondary education
  - significant up front expenses poor individuals and families are less able to afford
- summary: "future new jobs will require steeply increasing levels of skills and education" yet "minorities are falling behind in their educational attainment"

Overall Summary

American business institutions incorporate some degree of systematic discrimination

much of it, perhaps, an unconscious relic of the past
evidence

existing differences not wholly due to difference in preference & abilities

in average income
in % of groups at lowest occupational/income levels
in % of groups at highest occupational/income levels

ominous trends

small progress has yet been made at decreasing these differences
outlook for progress in the immediate future is not rosy

Conclusion: "American business institutions incorporate some degree of systematic discrimination, much of it, perhaps, an unconscious relic of the past." (387)
Re: discriminatory practices of particular firms: employers are currently required to report to the government the numbers of women and minorities they employ (as percentages of totals) in nine categories:
1. officials and managers
2. professionals
3. technicians
4. sales workers
5. office and clerical workers
6. skilled craftworkers
7. semiskilled operatives
8. unskilled laborers
9. service workers

7.3 Discrimination: Utility, Rights, and Justice

Prima facie inequalities of status, position, power, wealth & income
Prima facie violation of principle All are created equal & endowed with inalienable rights

to life: poor people die earlier, on average
to liberty: lack of finances forecloses options
to pursue happiness: money can't buy happiness; but it helps with the pursuit

extreme poverty is a miserable condition
poverty to whatever degree is disadvantageous

Historical violations of this principle underlie present disadvantaged status of women and minorities

African-Americans

brought to country as slaves: bought & sold & treated like cattle
were not recognized as people

had no legal powers: no rights to their bodies or their labor
deemed to be "beings . . . so far inferior that they had no right's that the white man was bound to respect" (Dred Scott v. Sanford: 1857)

Women: through much of the 19th century

could not vote, hold office, serve on juries, or bring suit in their own name
once married, could no hold property in their own names
deemed by the Supreme Court to have "no legal existence apart from her husband , who was regarded as her head and representative in the social state"

Utility

Utilitarian argument: Discrimination (in employment) is wrong because it is inefficient.

Social productivity is optimized to the extent that jobs are awarded on the basis of competency or "merit": this best promotes the general welfare.

different tasks require different skills, knowledge, and temperaments
maximal efficiency will be achieved by assigning to these tasks the people who most possess the skills knowledge, and temperaments the jobs require.
selection on grounds other than merit will cause productivity to decline.

Race, sex, & religion (among other things), being generally unrelated to job performance, have nothing to do with merit.
So, assignment of tasks on these other bases -- i.e., discrimination in employment -- is inefficient.
Hence, wrong

Replies

Liberal Reply:

there's more to the general welfare than economic efficiency.
Racial or sexual discrimination might better promote the general welfare in some cases

and may be warranted in those cases where other factors outweigh economic efficiency.
perhaps assignment on basis of need would be advantageous -- a kind of economic affirmative action.

loss in productivity (if any)
outweighed by benefits

"the poor man's farthing is worth more than all the gold on Afric's shore" (Blake)
diminishing returns on enrichment: $ 10,000 to me vs. Bill Gates.

goods are most beneficial
to those most in need of them

perhaps assignment on basis of race or sex could be advantageous

loss of productivity
outweighed by benefits:

of diverse workplaces
where citizens of all stripes interact & are culturally enriched

Conservative Objection: Division of labor on sexual lines -- few would dare suggest racial nowadays -- best promotes the general welfare.

traditional sex roles actually assign tasks most crucial to the general welfare most efficiently
tasks of childcare & homemaking

assigned to women
who are by nature and nurture most suited to these tasks

being more nurturing, sensitive, & emotional

tasks of exercising authority & control over business matters and money

are best assigned to men
who are by nature most suited to these tasks

being aggressive, competitive, & rational

Rights

Kantian argument: Discrimination is wrong because it violates a person's basic moral rights.

Every individual has a right to be treated as an "end" not merely as a "means".
Discrimination treats people as means to whatever ends the discrimination is supposed to serve, and not as ends

Bad Old Fashioned Discrimination (BOFD)

to keep the negroes/women "in their place"
to prevent "race-mixing" and "mongrelization"
to preserve "the sanctity of the home"

Affirmative Action & Reverse Discrimination

to achieve diverse workplaces
to compensate the disadvantaged

BOFD: treats those discriminated against solely as means

based on stereotypes that undermine the self esteem of the disadvantaged
which discourages them from pursuing their own ends
economic impoverishment: deprives them of the means to pursue their ends
educational impoverishment: withholds from them the means to refine their ends & effectively target them

Related Kantian point: discrimination is a nonuniversalizable practice

those who discriminate would be unwilling to be similarly discriminated against if things were reversed
they'd be unwilling to consent to the universalization of their discriminatory maxim or preferential treatment
basic idea

we have a duty to treat others as we ourselves want to be treated
others have this corresponding right: to be treated as we ourselves would want to be treated

Justice

Rawl's Argument: The Principle of Equal Opportunity is a fundamental principle of distributive justice

a principle that everyone would choose from "behind the veil of ignorance"
The Principle: Social and economic inequalities are to be arranged so that they are attached to offices and positions open to all under conditions of fair equality of opportunity.
Discrimination violates this principle.

lucrative & authoritative jobs are not equally open to those discriminated against

Conclusion: Discrimination is unjust.

Argument from the first principle of justice

The First Principle of Justice: Individuals who are equal in all respects relevant to the kind of treatment in question should be treated equally.
Discrimination violates this principle: race & sex are generally irrelevant to job performance
Conclusion: discrimination is unjust.

Discriminatory Practices

BOFD continues to exist & be perpetuated in effect & for several reasons is wrong
Various practices widely recognized as discriminatory

Recruitment Practices

reliance on word of mouth referrals of present employees

tends to perpetuate under representation of minorities
if minorities are already under represented

when desirable job positions are advertised in media (or through job referral agencies) that are not used by minorities or women

English newspapers not read by Spanish speaking minorities
"mens-only" publications

Screening Practices

requiring job qualifications irrelevant to the task.

e.g., requiring a high school diploma for strictly manual labor: discriminates against minority groups with higher high school drop-out rates
aptitude or intelligence tests measuring aptitudes & abilities not required for the job

may serve to disqualify qualified minority members disadvantaged by the test

due to their inferior education (on average)
due to cultural biases of intelligence tests dealing with unfamiliar language, concepts, & social situations

biased interviewers basing judgments on racial and sexual stereotypes

the kinds of work appropriate for women or minorities
the sort of time burdens that may be placed on women
the propriety of putting women in "male" environments
the assumed affects of female or minority employees on employee morale or customer attitudes
stereotypical assumptions about intelligence and abilities of women & minorities

women aren't strong enough to be cable splicers & firefighters
Hispanics aren't smart enough to be managers

Promotion Practices

tracking systems where, predominantly, white males get on the executive fast track
seniority: perpetuates effects of past past discrimination if this has excluded women or minorities
reliance on subjective recommendation of immediate supervisors who are biased

Conditions of Employment: payment of unequal wages to people doing essentially the same work

traditional inequities of pay for "pink collar" (predominantly female) occupations
as compared to "blue collar" (predominantly male) jobs involving comparable abilities & labor

Discharge

firings based on race or sex due to the negative recommendations of a biased supervisor
reliance on seniority for determining layoffs perpetuates the effects of past discrimination

Sexual Harassment

A kind of discrimination directed primarily at women
difficult to define and hence to police and prevent
Equal Employment Opportunity Commission (EEOC) 1978 Guidelines: sexual harassment includes "unwelcome sexual advances and requests for sexual favors & other verbal or physical contact of a sexual nature"
- when
  1. "submission to such conduct is made either explicitly or implicitly a term or condition of an individual's employment"
  2. "submission or rejection of such conduct by an individual is used as a basis for employment decisions affecting that individual"
  3. or "such conduct has the purpose or effect of
    - unreasonably interfering with an individual's work performance
    - or creating an intimidating, hostile or offensive working environment." (393)

such conduct is prohibited
an employer is strictly liable for sexual harassment engaged in by employees,

regardless of whether the employer "knew or should have known" the harassment was occurring
regardless of whether it was "forbidden by the employer"

Immorality of harassment

inflicts psychological harm on the harassed individual
violates employees most basic rights to freedom & dignity
is an unjust use of the unequal power that an employer or supervisor wields over an employee

Controversial points

vagary of what constitutes an "intimidating, hostile or offensive working environment"

this prohibition goes beyond specific harassing acts to attempt to prohibit an harassing work atmosphere
but when does rudeness & stupidity become a hostile atmosphere

Did you hear that after the hubbub died down, Monica Lewinsky met a nice man & got married.

On their wedding night they had great sex and her husband turned to her and said, "That was the greatest sex I ever had in my life, how about you?"
Monica looked at him and replied, "Close, but no cigar."

Have I created an intimidating, hostile classroom environment?

What if I told a cruder one?
or a similar joke everyday?

subjectivity of the "unreasonable interference with an individual's work performance" test

subjectivity complaint: this makes what counts as harassment too dependent on purely subjective judgments of the alleged victim

who's to decide what's unreasonable?
did my telling that joke unreasonably interfere with anyone's classroom performance?

I hope not, but,
What if

someone were so sensitive

that they were mortified by the joke
& felt uncomfortable ever coming back to class for fear I'll tell another like it.

someone were so politically correct

that they got so angry with me for ever after my telling that "dirty sexist joke"
that they can't keep their mind on the lecture

what's unreasonable to one may be tolerable, even enjoyable, to another

what one person takes as innocent flirtation
another might interpret as an offensive come-on

Reply: law courts are experienced in defining what's reasonable in terms of what an average competent adult would find reasonable.

Free speech rights issues arise about prohibiting verbal conduct for such atmospheric & subjective reasons

especially on college campuses political correctness restraints seem a dangerous impediment to free speech

colleges are supposed to be forums for free unbridled discussion
since the pursuit of truth requires considering all sides of issues, including unpopular sides

off campus (in business)

the argument is less strong in where pursuit of truth is not the goal
still can be argued that restraints on peoples speech just because it

may offend some people
create an atmosphere some would find hostile

is an unwarranted restraint on this fundamental right: According to J. S. Mill (On Liberty)

the law is entitled to restrain people from acts & speech that is harmful to others
but not entitled to restrain people from acts & speech that's merely offensive to others

"Strict Liability" of the employers who are held accountable even if they did not know and could not have been expected to know what was going on and had expressly forbidden it.

compare strict product liability
contrary to principles of retributive & compensatory justice: an individual is generally not held to be punishable for, or responsible for compensating victims of, harms

if they were unaware that these harms were being caused
and were actively trying to prevent them

replies to the plea for excuses
- utility based: strict liability makes employers extra vigilant & internalizes external costs of harassmenT
- justice based: effects of harassment can be so devastating
  - fairer that the company should pay than the harassing individual
  - company is better able to pay due to its "deeper pockets"

Beyond Race and Sex: Other Groups

Other groups liable to be discriminated against & victimized by false stereotypes
Currently Protected by Law

Older workers: age-ism:

Age Discrimination Employment Act of 1967

Prohibited discriminating against older workers because of age until they reached age 65.
Modified in 1978: raised the age to 70.

1986 legislation prohibits forced retirement at any age.

Disabled individuals: Americans with Disabilities Act of 1990

bars discrimination on the basis of disability
requires employers to make "reasonable accommodation" for disabled employees and customers

As yet unprotected (but aspiring to be)

Persons with unorthodox sexual preferences or identities: homosexuals & transsexuals

Liberty Mutual Insurance Co. judged within its rights in refusing to hire a man on the grounds that he was "effeminate"
Budget Marketing, Inc. judged within in rights in firing a male who began to dress as a female prior to a exchange operation.
AIDS

qualifies as a "handicap" under the federal Vocational Rehabilitation Act of 1973
nevertheless, many companies have found pretexts to illegally discriminate against AIDs victims

by firing them and/or canceling health benefits
motivated by irrational fear of the disease itself, and by homophobia

The Overweight

many companies have policies against hiring overweight persons
Example: The Philadelphia Electric Company was judged within its rights when it refused to hire Joyce English solely on the grounds of her weight (300 lbs).

6.4 Affirmative Action

Compare & Contrast: Equal Opportunity Policies & Affirmative Action (AA)

Equal Opportunity Policies combat the continuing practice and effects of BOFD by negative means, e.g.,

by prohibiting sexually and racially discriminatory practices
to ensure that employment decisions are blind with respect to race & sex

Affirmative Action Policies combat the continuing effects of BOFD through positive measures
- to achieve more representative distributions of minorities and women within firms
- by giving preferences to women and minorities
  - in hiring, promotions, lay-offs, etc.
Motivation for Affirmative Action Policies

perceived insufficiency of Equal Opportunity to remedy continuing effects of BOFD
Monopoly game comparison

early in the game (under BOFD) you are only allowed to own RRs & Utilities
now we institute Equal Opportunity after I've bought up most of the choice property on the board

we end the discriminatory practices: institute a procedurally "level playing field"
but we don't undo the disadvantaging effects of the past discrimination.

Principal Means of enforcing AA : Utilization analysis

UA is essentially a comparative analysis comparing

representation of minorities & women in various job classifications in the company in nine categories

officials and mangers
professionals
technicians
sales workers
office and clerical workers
skilled craftworkers
semiskilled operatives
unskilled laborers
service workers

compared to representation of women & minorities in the available labor pool

Underutilization: deemed to be present when the percentage of minority representation in some category is less than the percentage of representation in the labor pool.
If underutilization is determined then the firm must take measures to remedy this

by establishing goals and timetables for correcting these deficiencies, which are

specific & measurable
designed in good faith to correct the underutilization

though these goals and timetables must not be rigid quotas
in practice: the firm "undertakes special efforts and programs to increase the recruitment of women and minorities so as to meet the goals and timetables."

Tangled legal situation

The basic principle of AA has been endorsed by the courts

1979 ruling: firms can use affirmative action programs to redress imbalances of utilization
2005: universities may use AA programs to achieve diversity

But permissible corrective measures have been more circumscribed by various court decisions

California v. Bakke ( 1978): outlawed quotas, e.g.

20% of positions reserved for minorities
50% of positions reserved for women

seniority may not be set aside during layoffs

as long as the seniority system was not adopted with a discriminatory end in view
means that gains from affirmative action are likely to disappear in hard times

the "last hired, first fired" rule of seniority would hit hardest minorities & women
due to BOFD they will be disproportionately represented among the recent hires

set asides: another banned practice by which a government or governmental agency earmarks a percentage of its budget exclusively for hiring minority contractors

banned by Richmond v. J. A. Croson Co. ( 1989)

for state & local governments
"except as a last resort" in "an extreme case"

banned for Federal government: Adarand Constructors, Inc. v. Pena (1995)

Moral & Political Dispute

Objection to Affirmative Action as "reverse discrimination" against white males

using characteristics irrelevant to job performance to make hiring & promotion decisions toward these individuals
that negatively impact them
and is immoral because it

unjustly violates rights of white males to equality of opportunity in employment
inefficiently in awards jobs on grounds other than merit

Defenses of Affirmative Action

Justice based: backward-looking

it's justifiable compensation for past injuries suffered by women & minorities due to BOFD

Utility based: forward looking

it's a necessary and effective instrument for achieving socially desirable goals

Social justice argument Velasquez thinks best

looks backward to explain presently unequal opportunity for success on the part of women and minorities
looks forward to social justice -- equal opportunity for success -- a socially desirable goal

Affirmative Action as Compensation

Compensatory Justice Argument

People have an obligation to compensate those they've intentionally and unjustly wronged.
White males intentionally and unjustly wronged women & minorities.
Therefore, white males have an obligation to fairly compensate women & minorities.
Therefore women and minorities are justly entitled to "affirmative action"

to be temporarily discriminated in favor of in admissions, hiring, and promotion,
where they were previously discriminated against

That white males are disadvantaged by this is not unjust since they are the ones who have benefited from BOFD.

Reply: it ain't me babe: you got the wrong man

present white males are not the ones who intentionally and unjustly wronged women & minorities.
and present women and minorities aren't the same individuals that past white males unjustly & intentionally wronged.
therefore, present white males owe no compensation to present women and minorities.

Would-be rejoinders to this reply

Judith Jarvis Thompson: "even those who were not themselves downgraded have suffered the consequences of the downgrading of other blacks and women" (401)
Martin Reddish: regarding the obligations of present white males: "whether or not . . . [they] have themselves participated in acts of discrimination they have been the beneficiaries."
Assessment of the rejoinder

The first leg: the present women and minorities are victims is strong.
The second leg: that present white males are beneficiaries is weaker

only perpetrators, not just beneficiaries, owe compensation

if Nicole Bobbit benefited from an injury Tonya Harding harding inflicted on Nancy Kerrigan
only Tonya owes compensation, not Nicole

have to argue that present white males are consciously or unconsciously in collusion with past discriminators.

Affirmative Action as an Instrument for Achieving Utilitarian Goals and Equal Justice

Utilitarian Argument

We are obliged to do whatever best promotes the general welfare.
Affirmative Action best promotes the general welfare:

Past discrimination has produced a high degree of correlation between race and poverty. as statistics cited earlier show
mechanism: minorities excluded from better-paying jobs become impoverished & this poverty has become "hereditary": especially pertinent in the case of African Americans

minorities tend to intramarry
for blacks and whites

until recently it was illegal to marry in most southern jurisdictions
and strongly socially disapproved of everywhere

This impoverishment has led to many disadvantages highly correlated with being black

unmet needs, resentment & lack of self respect
social discontent & crime: overutilization of minorities as prison inmates

The general welfare will be promoted by undoing the effects of past discrimination.
This will be best accomplished by giving discriminated against minorities special educational and employment opportunities through affirmative action.
This will remedy the impoverishment and hence alleviate the harmful effects of unmet needs, resentment, lack of self respect, social discontent & crime.

Utilitarian Objection & Utilitarian Reply

Objection: Race is an irrelevant selection criterion:

it has nothing to do with merit
hence race based selection decreases productivity
which diminishes the general welfare

Reply: Need is relevant and race is highly correlated with need

not only total production but distribution matters

same amount of goods more widely distributed
can satisfy more preferences & yield greater happiness

law of diminishing marginal utility

the very same goods (e.g. a bowl of rice) can be more beneficial to individual X than to individual Y
if X's need is greater (e.g., if Y is well fed but X is starving)

Other objections

The social costs outweigh the benefit

costs: white & male frustration & resentment

not just white males
mothers & sisters & wives of white males share their frustrations despite the evidence that affirmative action programs have primarily lifted females.

Race is not an appropriate indicator of need

There are rich blacks & women (Oprah) and impoverished whites

Based on need, shouldn't a poor white sharecropper's son be given preference over Oprah's daughter?
Certainly not vice versa -- if the real criterion is need.
Proposal: affirmative action ought to be based on some more direct indicator of need (e.g., wealth)

Strongest reply: the psychological harm due to the explicitly race based and sex based nature of the discrimination can only be undone by race based and sex based reverse discrimination.
Rejoinder to this reply: receiving race & sex based preferences actually does psychological harm

the affirmative action recipient knows they didn't get the position on merit

even if they did they will have doubts: "Was I hired because I was the best candidate, or because I'm a black woman?"
so it takes away self respect

others know the the recipient didn't get the position on merit

and even if they did others will have doubts
so they get diminished respect from others which can also negatively impact self respect

Equal Justice Argument:

Agrees with critics of Affirmative Action (AA)

The distribution of benefits and burdens (pay & jobs) is just only insofar as it is based on morally relevant criteria.
Criteria relevant to the just distribution of benefits and burdens (pay & jobs) are

ability
effort
contribution
need

Sex and race are not in themselves relevant criteria

so sex based and race based distribution is unjust
that's what was wrong about BOFD

Nevertheless

Since statistics show that jobs in our society are still distributed on the basis of sex and race.
there is a sex-linked and race-linked needs AA fulfills

To achieve a just distribution we need to neutralize institutional and psychological mechanisms that perpetuate unjust race based and sex based discrimination:

subtle racist and sexist attitudes that bias the judgment of those (usually white males) who make hiring and promotion decisions
lingering effects of economic and educational privation giving whites (and males) a head start

monopoly analogy: even if you're playing by the same rules . . . on a "level playing field"
if you start off behind, you don't have an equal opportunity to win

lack of role models that subtly discourages female and minority aspirations

AA effectively neutralizes these causes of continuing distributive injustice

subtle racist & sexist attitudes are counteracted by legally mandated counterpreferences
counteracts lingering effects of impoverishment

ultimately: by curing the underlying poverty
in the interim: temporarily tilting the playing field in favor of the previously disadvantaged gives them a more equal opportunity to succeed.

raises up women and minority to positions of power and prestige provides role models .

Replies to the Equal Justice Argument Countered:

Objection: AA programs wrongfully discriminate against white males.
Reply: from the definition of wrongful discrimination
- it was: "to make an adverse decision against a group because members of that group are wrongly considered inferior or less worthy of respect
- but that isn't the underlying motive or belief in the case of reverse preferences
  - it's not about disrespecting white males like BOFD was about disrespecting minorities & women
  - it's about giving those who aren't white males an equal opportunity to succeed.
- So, reverse preferences are not wrongful discrimination
Preferential treatment violates the principle of equality itself

Argument

Principle: Individuals who are equal in all respects relevant to the kind of treatment in question should be treated equally.
Race & Sex are irrelevant to job allocation.
Therefore, in giving race & sex weight in job allocation decisions affirmative action treats individuals equal in all relevant respects unequally.
Which is directly contrary to the principle.

Reply: race & sex at the present juncture are relevant

they are only irrelevant to productivity
race & sex are relevant to achieving the social justice: an equal opportunity to succeed (EOS) for all
EOS is defensible

as an intuitively warranted principle of social justice
and on utilitarian grounds

social purpose of of maximizing overall utility depends on distribution as well as production of goods
distribution by need serves best
affirmative action distributes opportunities on the basis of need

women & minorities need to have the playing field tilted in their favor if they're to have an equal opportunity to win
this need is directly related to their being women & minorities

Objection: AA has hidden social & psychological costs for minorities and women: it reinforces negative stereotypes about their inferiority which further undermines their self esteem and diminishes respect of others for their accomplishments
Reply:
- that's for them to say: If AA is so bad for them, why do minorities overwhelmingly support these programs?
- AA counteracts lingering BOFD caused biases so
  - conscious reverse preference just counterbalances these lingering unconscious BOF preferences
  - to result in selection processes that are more approximately nondiscriminatory on balance than they otherwise would be
    - it's actually not reverse discrimination in effect
    - insofar as it merely counterbalances lingering BOFD
  - so women & minorities needn't apologize for their AA aided attainment
  - nor have others any just & true reasons to devalue these attainments
- it's just false to say that being the beneficiary of preferential treatment diminishes an individuals self esteem
  - it hasn't hurt white males' self esteem any!
  - on the contrary: people tend to believe that they deserve benefits received whatever the reason
    - honors & benefits make people feel good about themselves
    - regardless of whether they're really worthy

Velasquez's Assessment of Equal Justice Argument & Replies
- AA is a morally permissible means to achieve social justice
- AA is not morally required as means to achieve social justice.

Implementing Affirmative Action and Managing Diversity

Legitimate worries about implementation of AA

if race and sex are weighted very heavily this will result in assignments of tasks to unqualified people
in critical occupations (airline pilot, surgeon) where crucial human interests hang mightily in the balance weighting anything besides merit is questionable
weighting sex and race in socially important decisions makes us more race conscious and sex conscious, not less as we ought to be striving to become.

Suggested guidelines
1. minimum levels of competency: no one to be promoted unless they come up to these levels or are capable of coming up to them in a reasonable amount of time.
2. racial and sexual preferences should be allowed to trump slight competency differences
3. where competency differences are more considerable
  1. in critical occupations: competency should trump sex based & race based preferences
    - if performance of the job directly affects peoples lives and safety
    - or has a substantial and critical effect on the entire firm's efficiency
  2. in noncritical occupations: minorities & women should be given preferences.
4. preferences should be extended to minority & women candidates only to redress underutilization

in comparison to their representation (as a percentage) in the job pool
in specific job nine categories (1-9)

officials and mangers
professionals
technicians
sales workers
office and clerical workers
skilled craftworkers
semiskilled operatives
unskilled laborers
service workers

example: women

in a corporation Y

60% of all office and technical workers
10% at all officers and managers

in the labor pool: 50% women
policy recommendation under the guideline

AA should be applied in hiring for & promotion to manager
AA should not be applied in hiring for & promotion to office & technical staff positions.

Accommodation of special needs of women & minorities in the workplace an essential adjunct to AA-based preferences.

for women: due to their special childbearing and child rearing responsibilities

maternity & family leave policies
mommy-tracking v. fast tracking: controversial

injects invidious status differences into the workplace -- a class of second class managers
unfair that women who choose motherhood should be shunted off onto the slow track (to nowhere)

flexible work schedules

minorities: due to ( 1 ) poverty linked educational disadvantages (2) cultural differences

job linked educational opportunities

to upgrade basic skills & knowledge
and job related skills and knowledge

cultural sensitivity training for managers

disabled: special accessibility needs

Comparable Pay for Jobs of Comparable Worth

A radical solution to sex-based earning differentials

compare & contrast

AA: tries to get women into high paid positions
CPCW: proposes to make the positions women already hold higher paid.

proposal: individuals should be comparably paid for doing jobs of comparable worth

regardless of the going labor market rate for the performance of that task
example: secretaries and repair technicians

jobs have the same relative value in terms of problem solving, know how, & accountability
so they should be paid the same
but they're not

Implementation

each job rated for its compensation worthy features, e.g. required

effort: including prior educational or apprenticeship efforts required
productivity
accountability

fix compensation for various jobs on the basis of these ratings

higher the rating the higher the pay
equally rated jobs equally paid

Justification: employees who are in all respects relevant to compensation worthiness are equal should be equally compensated.
Objections

fair market value is the most appropriate determinant of compensation worthiness
assigning salaries by assigning points to jobs

will not only be a bureaucratic nightmare
but is actually more arbitrary and less objective than reliance on job market forces

women could apply for the higher paying "male" jobs if they chose to, but they don't

they choose instead to be secretaries, receptionists, PBX operators, etc., despite their lower salaries
so they must be getting other benefits: the work is cleaner, less arduous, perhaps more personally fulfilling

Reply labor market is not some objective impersonal force

"women's work" is lower paid because women predominantly do it (for historical discrimination based reasons)
not because labor market factors of supply and demand
so the job market valuation is not fair & appropriate

Conclusion

Businesses have strong reasons for accommodating women and minorities in the workplace from a self interested business perspective
current population trends. white males are rapidly shrinking as a percentage of the workforce

rising female employment rates
immigration
higher birth rates -- another correlate of poverty -- among minorities

women and minorities have to be incorporated into the workplace to meet staffing needs

companies that effectively meet the special needs of women and minorities will enjoy a competitive advantage in meeting staffing needs
over those who don't.

Cases for Discussion

ABC News: Should Kroger Pay Now for What Ralph's Employee Did Then?

In 1998 Kroger company acquires Ralphs, an independent chain of 450 supermarkets.
At this time a sexual harassment case involving former Ralphs manager Roger Misiolek & six female employees was ongoing
- harassment occurred when Misiolek was manager of Ralphs' Escondido store: 1995-6
- harassment included unwelcome touching & suggestive, vulgar, and deprecatory speech
- when the women complained to higher management management responded by transferring the women to different stores
- at the trial the women showed that 80 harassment complaints had been filed against Misiolek at four different stores since
Misiolek & Ralphs
- Misiolek "had a history of boosting profits at the stores that he managed"
- Ralphs claimed they hadn't known about Misiolek's conduct until Diane Gober took her complaint directly to company headquarters in April of 1996.
- Whereupon Misiolek was transferred to Mission Viejo
June 1998 verdict
- guilt: Ralphs found liable for
  - "gender harassment"
  - "failure to prevent gender harassment"
  - "malice or oppression based on a conscious disregard for for the rights or safety of others"
- penalty
  - compensatory damages: $550,000 each plaintiff
  - punitive damages: $3.325 million each each plaintiff
Subsequent developments
- the penalty phase verdict was set aside due to the jury's reliance on knowledge of Ralphs' net worth (which they weren't supposed to have) to determine damages
- the guilt phase verdict, however, was upheld
- Misiolek continued to deny any wrongdoing
  - 1999: demoted to working on a loading dock
  - 2000: Ralphs' management sent him disciplinary letter and suspended him, and Misiolek subsequently quit
Retrial of the penalty phase in 2002
- jurors had available the price that Kroger had paid for Ralphs
- compensatory damages: $550,000 each
- punitive damages: $5 million each
- total award: $33.3 million
Retrial verdict set aside by Judge Anello who ruled
- the award was "grossly excessive" due to the jury's "passion and prejudice"
- "evidence was insufficient to support the conclusion that Misiolek was the managing agent of Ralphs, and the evidence was insufficient to support the conclusion that Ralphs approved of or ratified Misiolek's conduct"
- reduction of punitive damages to 8.25 million total to be divided as follows:
  - Gober: $3 million
  - Swann: $1.5 million
  - Papiro: $1.25 million
  - Finton: $934,500
  - Lang: : $934,500
  - Noland: $750,000
Subsequent developments
- Gober & Swann accepted the reduced damages
- the other four decided to contest the smaller awards
- at the time of publication these cases were still pending in the California court system
- March 1, 2006 a California court reduced the remaining four's awards:
  - economic damages: $250,000 total
  - punitive damages: 1.5 million total
  - Source: http://www.nctimes.com/articles/2006/03/02/news/top_stories/20_56_173_1_06.txt

Questions for Discussion

Assuming that the store and district managers of Ralphs received complaints about Misiolek;s behavior starting in 1985, but that these complaints did not reach Ralphs' headquarters in Compton, do you believe that the judge is right in holding that the company as a whole should not be held responsible for his actions? Should the company be held responsible for policies that prevent complaints from reaching headquarters?
What sort of penalty do you believe would be appropriate for Ralphs? In your view, was the $33.3 million penalty excessive? Explain.
Should Kroger have to pay for events that happened before it took over the chain of supermarkets?
Many states (but not California) adopt federal rules that place a cap of $300,000 on punitive damages in harassment cases. Is such a cap a good idea from an ethical point of view? Explain.
What can a company do to make sure that a situation like Misiolek's does not occur? Why do you think Ralphs allowed Misiolek to continue managing stores?
What other issues do you believe this case raises or what else to you think it shows?

Wall Mart's Women

What financial impact do you think the lawsuit could potentially have on Wal-Mart?
What are the major moral complaints of the women suing Wal-Mart? Do you believe these moral complaints are justified? Why?
What factors do you think might account for the discrepancies the Drogin report uncovered?
What, if anything, do you think Wal-Mart should do to correct these discrepancies? Should the company institute an "affirmative action" promotion program for female employees? If so, what should this program be like?
Do you think the women deserve to win their lawsuit? Why or why not?
What other issues do you believe this case raises or what else to you think it shows?

Learning Objectives & Overview | Course Syllabus | LH's Virtual Office

Business Ethics: Concepts & Cases: Chapter 7 Outline The Ethics Job Discrimination

Introduction

Mend it don't end it. (Bill Clinton 1995 ) {5th edition}

End Preferential Treatment (Pete Wilson) {5th edition}

Michigan {6th edition}

7.1 Job Discrimination: Its Nature

Forms of Discrimination: Intentional and Institutional Aspects

7.2 Discrimination: Its Extent

Average Income Comparisons

Lowest Income Comparisons

Desirable Occupation Comparisons

Overall Summary

7.3 Discrimination: Utility, Rights, and Justice

Utility

Rights

Justice

Discriminatory Practices

Sexual Harassment

Beyond Race and Sex: Other Groups

6.4 Affirmative Action

Affirmative Action as Compensation

Affirmative Action as an Instrument for Achieving Utilitarian Goals and Equal Justice

Implementing Affirmative Action and Managing Diversity

Comparable Pay for Jobs of Comparable Worth

Conclusion

Cases for Discussion

ABC News: Should Kroger Pay Now for What Ralph's Employee Did Then?

Questions for Discussion

Wall Mart's Women

Business Ethics: Concepts & Cases: Chapter 7 Outline
The Ethics Job Discrimination