Discrimination without disadvantage

The SEP’s article on discrimination talks of discrimination as involving the imposition of a relative disadvantage on a member of a group.

This seems incorrect. Suppose Bob refuses to hire Alice because Alice is a woman. But Bob’s workplace is such a toxic environment that one is better off being jobless than working for Bob, regardless of whether one is a man or a woman. Bob has paradigmatically discriminated against Alice, but he has not imposed a relative disadvantage on her.

One might object that losing an option is always a disadvantage. But that is false: some options are degrading and it is better not to have them.

Perhaps we should subjectivize the relative disadvantage and say that discrimination involves the imposition of what is believed or intended to be a relative disadvantage. Bob presumably doesn’t think that working for him is a disadvantage. But imagine that Bob has the sexist belief that women are better off as housewives, and further believes that being a housewife is as good for a woman as being an employee of Bob’s is for a man. Then Bob does not believe he is imposing a relative disadvantage and he is not intending to do so, but he is clearly discriminating.

I am not sure how to fix the account of discrimination.

More on Bostock

In Bostock, the Supreme Court held that a refusal to hire, say, a man who is attracted to men is discrimination on the basis of sex if one wouldn’t refuse to hire a woman who is attracted to men.

The idea is that a rule is discriminatory if it precludes a man from doing something that a woman is permitted to do or vice versa.

This would have the curious consequence that various laws that seem on their face to be non-discriminatory would nonetheless be discriminatory. Here are three examples:

• Laws against perjury and against lying to law enforcement prohibit, in certain circumstances, a man from saying “I am a woman”, but do not prohibit, in the same circumstances, a woman from saying the very same words.

• Laws against incitement of violence will often prohibit a male speaker from yelling to a crowd: “If I am a man, go riot!” but will not prohibit a female speaker from yelling the very same words to the same crowd.

• Libel laws make me liable for asserting “Either colleague x is a plagiarist or I am a woman”, when I know x to be innocent, but do not make my female colleagues liable for saying the very same words under the same circumstances.

These cases show that it is quite difficult to define discrimination.

Bostock v. Clayton County

In Bostock, the Supreme Court ruled that hiring discrimination against a gay person is discrimination on the basis of sex, and hence forbidden, because one wouldn’t refuse to, say, hire a woman who is attracted to men, and hence to refuse to hire a man who has the same “trait”, namely being attracted to men, is discrimination on the grounds of his sex.

Here is a clear counterexample to this line of reasoning. Consider an employer who refuses to hire a man who claims in a job application to be a woman on the grounds that this man is a liar. (Suppose this is a man in every socially accepted sense of the word: he is biologically male, he socially identifies as a man in every context other than this interview, etc.) Such an employer would not refuse to hire a woman with the same “trait”, namely claiming to be a woman. Hence by the Bostock reasoning, the employer discriminates on the basis of sex. But this is absurd: the basis for the discrimination is not the sex of the prospective employee, but lying about one’s sex. Similarly, discrimination against a white person who claims to be African American on the grounds of a mismatch between their claims and reality is not discrimination against white people.

In other words, the basis for the discrimination is not the sex of the candidate but the relationships between the candidate’s actual sex and the candidate’s claimed sex.

And logically speaking, this is all very much like the gay case, where the basis for the discrimination is not the sex of the candidate but the relationship between the candidate’s sex and the sex of the persons the candidate is attracted to.

I am not claiming that it is morally wrong to be attracted to persons of the same sex in the way in which it is wrong to lie (or in any any other way, for that matter). Nor am I claiming that it is reasonable or legal for an employer to discriminate on the basis of such attraction. All I am claiming is that such discrimination is not discrimination on the basis of the candidate’s sex.

Objection: There is an important difference between the trait of being attracted to men and the trait of claiming to be a man. Being attracted to men is essentially the same trait whether it is found in a man or a woman, while claiming to be a man is radically different when it is found in a man and in a woman, since it is truth-telling in the one case and lying in the other.

Response: This response would require the court to settle the question whether indeed the trait of being attracted to men is basically the same trait when found in men and when found in women, in a way in which the trait of claiming to be a man is not the same trait when found in men and when found in women. That is perhaps the real philosophical question here, and it is presumably precisely what the employer in question would dispute. The court cites the example of how discriminating on the grounds of interracial marriage is racial discrimination. Now, here I would say that the trait of marrying a person of race R is the same trait whether found in a person of race R or not. But clarifying exactly what it means to be basically the same trait is very difficult.

Disclaimer: I am no lawyer or legal scholar, just a philosopher with an eye for counterexamples.

Discrimination and coin tosses

Bob is deciding whom to hire for a job where race is clearly irrelevant to job performance. There are two clear front-runners. Bob hires the white front-runner because that candidate is white.

Bob has done something very wrong. Why was it wrong? A naive thought is that what he did wrong was to take into account something irrelevant to job performance while deciding whom to hire. But that can’t be right. For suppose that all the job-performance related facts were on par as far as Bob could tell. And then suppose that Alice when dealing with a similar case just said to herself “Heads, A, and tails, B”, tossed a coin, got tails, and hired candidate B. Alice didn’t do anything wrong. But Alice also made a decision on the basis of something irrelevant to job performance, namely whether the prior heads/tails assignment to a candidate matched the outcome of the coin toss.

In terms of deciding on irrelevancies, the paradigm of a fair tie-breaking procedure—a coin flip—and the paradigm of an unfair tie-breaking procedure—a racist decision—look very similar.

Here is a standard thing to say about this (cf. Scanlon): When the job-performance related facts are tied, and we still have to choose, we just have to choose on the basis of something not related to job performance. But that something had better not be something that forms the basis for large-scale patterns of dominance in society. Both Alice’s and Bob’s procedures are based on something not related to job performance, but Bob’s procedure is an instance of a large-scale social pattern of dominance.

I want to propose an account of why Bob did wrong and Alice did not that seems to me to differ slightly from the standard story (or maybe it just is a version of it). To that end, consider a third story. Carl runs a graduate program where he has to make lots of hard choices about current students, e.g., about travel-funding, stipend-renewal, lab and office allocation, etc., and these choices often involve ties on the usual academic metrics. (This is not a description of the Baylor philosophy program: we have lots of funding, and rarely if ever had to break ties regarding funding.) Carl is lazy and has decided to simplify things for himself by saving the number of coin tosses he has to make. Instead, whenever a student is admitted, Carl chooses a random number between one and a thousand and assigns that number to the student, re-rolling the random number generator if that number matches the number of a student already in the program. Thereafter, whenever a tie is to be broken, Carl always breaks the tie in favor of the student with the higher pre-assigned number.

Carl’s tie-breaking procedure is like Alice’s in terms of randomness and lack of alignment with larger social patterns of discrimination. But it’s still a terrible procedure. It’s terrible, because it distributes benefits and burdens in a seriously unequal way: if you got randomly assigned a low number at admission, you are stuck with it and keep on missing out on goodies that people assigned a high number got.

One can now explain what goes wrong in Bob’s procedure as something rather like what went wrong in Carl’s procedure: given structural racism, the minority candidate, call him Dave, passed over by Bob has tended to have been on the negative side of many other decisions (some of them perhaps being racist tie-breaking decisions, and many of them being even more unjust than that). Bob’s procedure has contributed to Dave having a life of tending to get the short end of the stick, just as Carl’s procedure has led a number of students having a graduate career with a tendency to getting the short end of the stick. And a tendency to getting the short of the end of the stick is something we should (at least typically) not contribute to.

This is close to the standard account about Bob’s racism. It likewise involves the large-scale patterns of dominance in society. But it seems to me also importantly different: The large-scale patterns of dominance in society are relevant to Bob’s action insofar as they make it likely that Dave has been on the unfavorable side of too many decisions. In the graduate program case, there may be no larger social patterns that match the ones within the program (or at least not pre-existing ones), and even within the program there need not be any significant interpersonal patterns of dominance between the persons assigned high numbers and low numbers, especially if the initial numerical assignments and the tie-breaking procedure are kept secret from the students, who just say things like, “My luck is terrible!” (This is going to be most likely in a program where students are oblivious to their social environment due to a focus on their individual research.)

In the alternate account, the focus is on the individual rather than the group, and the larger social facts are relevant precisely as they have impacted the individual. But this may seem to miss out on a common dimension of invidious discrimination. If I am a member of a group and someone else in the group is unfairly discriminated against, then that is apt to harm me in two ways: first, because I am apt to have a special concern for other members of the group (either because they are members of the group, or because persons more closely related to me tend to be members of the group), and harm to someone I have a special concern for is harm to me, and, second, because seeing someone like me get harmed scares me.

But I think this fits with my individualistic story by just multiplying the number of times that Dave gets the short end of the stick: sometimes he gets the short end of the stick directly and sometimes he gets it indirectly by having someone else in his group get it.

At the same time, I have to say that this is material I know next to nothing about. Take it with a grain of salt.

Individual and group discrimination

An interesting question is whether a prohibition on discrimination with respect to a determinable P by itself prohibits discrimination against groups with respect to patterns or distributions of P in groups.

If so, then it would be the case that:

• a prohibition of racial discrimination by itself prohibits discrimination against multi-racial groups

• a prohibition of gender discrimination by itself prohibits discrimination against same-gender couples.

But here would be a more surprising up-shot:

• a prohibition of P-based discrimination by itself prohibits discrimination against groups lacking P-diversity.

After all, lack of P-diversity is just a pattern of P-distribution (akin to same-gender couple, except that same-gender couples are by definition pairs while groups lacking P-diversity will often have more than two members). But that prohibiting P-based discrimination prohibits discrimination against groups lacking P-diversity seems implausible. After all, criticism is one of the forms of adverse treatment that when based on a protected characteristic will constitute discrimination. But it seems absurd to suppose that a prohibition on discrimination with respect to P also prohibits criticism of groups for lacking P-diversity.

If this is right, then a prohibition on discrimination against groups exhibiting particular patterns or distributions of the protected characteristic does not follow from a prohibition on discrimination on the basis of that characteristic, but requires a separate step. Sometimes, of course, that separate step is a no-brainer, as in the case of moving from prohibiting discrimination on the basis of race to prohibiting discrimination against multi-racial groups (including couples).

Let me add that I am neither a social nor a legal philosopher, so it may be that this has already been well-established or thoroughly refuted in the literature.

Harming a group without harming an individual

Imagine that a dart with a perfectly defined tip is going to be thrown by a monster at a circular target, with the impact position uniformly distributed over the target and every point equally likely. There are uncountably many people, and there is a one-to-one assignment of points on the target to people, with every point and every person assigned. There is a monster who will throw a dart with a perfectly defined tip, in such a way that its impact point is uniformly distributed over the target with each point equally likely. The monster will then eat anyone whose point is hit by the dart.

People come in two kinds. There are pointy-eared and round-eared people. The pointy-ears are assigned the left half of the target and the round-ears are assigned the right half, and the dividing line is divided as fairly as can be, too. But along comes a racist who changes all the assignments, moving the pointy-ears to a tiny circle in the middle of the middle of the target containing 1% of the target, and spreading the round-ears over the remaining 99% of the target, but ensuring still that each point is assigned to one person and each person to one point.

The racist harmed the round-ear group. For increasing the chance of harm to a group or individual is a form of harm to the group or individual. (Endangerment is not a victimless crime, even if the danger does not actually befall anyone.) But the racist harmed no individual. No round-ear had her probability of being eaten go up. After all, every point on the target had equal probability of being hit. John, a man with round ears, was first assigned, let's say, to a point right by the middle. Later he was reassigned to a point near the rim. That does nothing to affect the chances of John being eaten.

Thus, it is possible to harm a group without harming any individual from the group.

But perhaps this doesn't give group-rights proponents quite as much as might at first sight seem. Certainly our racist harmed the round-ear group. But she also benefited many other groups of people, each group of the same size as the round-ears. For we can subdivide the benefited pointy-ear group into infinitely many groups, each with the same number as the round-ears, and many of these groups will have been benefited. In fact, there need be no difference between how many groups of that cardinality were benefited and how many groups were harmed. So how can we blame our racist rearranger? She harmed infinitely many groups and she benefited infinitely many groups.

Well, you might say: But the round-ears are a non-arbitrary (maybe more natural in the David Lewis sense) grouping of people, while most of the benefited groups are completely arbitrary groupings.

That may be. If so, then the argument supports the idea that it makes sense to talk of group harm in the case of non-arbitrary groups.

HB 2454

I rarely comment on current politics.  Still, I want to say something here.  A bill has been proposed in the Texas Legislature to ban discrimination on the basis of Intelligent Design (ID) research at colleges.  To lay my cards on the table, I think it is still an open question whether the amount of time available for evolutionary processes was sufficient for the sort of complexities we observe to be at all likely to observe, and I suspect we are still quite some distance from having mathematical models of the development of anything with sufficient complexity to close the question.  So research on ID should, I think, continue.  And no doubt unjustified discrimination connected with research on ID exists.  But the bill is really embarrassing:

Sec. 51.979.  PROHIBITION OF DISCRIMINATION BASED ON RESEARCH RELATED TO INTELLIGENT DESIGN. An institution of higher education may not discriminate against or penalize in any manner, especially with regard to employment or academic support, a faculty member or student based on the faculty member's or student's conduct of research relating to the theory of intelligent design or other alternate theories of the origination and development of organisms.

Here are three reasons for embarrassment:

1. Theories of "the origination and development of organisms" concern not evolutionary theory as such but reproductive and developmental biology.  As a commenter here noted, an alternate theory in this realm is "storkism" (presumably the theory that human children come from storks rather than from human mating).  ID concerns something else, something more like the origination and development of types of organisms.
2. A French Department should be able to discriminate against a prospective faculty member whose primary research is on ID rather than French language, culture and/or literature.  Likewise, it is perfectly reasonable for a Biology Department that required students in a class to do laboratory research on the present functioning of red blood cells to discriminate against a student who, instead, did a research on ID.  Maybe an implicit exception for the bona fide requirements of a task can be assumed, but it would also take some of the teeth out of the bill.
3. Everyone, whatever they think of ID, should agree that it is reasonable for a college to deny tenure/promotion, refrain from hiring or giving a low grade on the basis of intellectually shoddy ID research.  Now, the bill either does or does not allow discrimination on the basis of shoddy ID research.  If it does not, then it is clearly unacceptable--it provides a delightful formula for tenure and promotion: do research on ID, and they have to promote you no matter how bad the research is, or else you sue.  Suppose, charitably, discrimination on the basis of shoddy ID research would stil be permissible.  But now the bill is close to useless.  For those scientists who are likely to discriminate on the basis of ID research also say that it is their professional judgment all ID research (or at least all ID-supportive research) is intellectually shoddy.  So if they can still discriminate on the basis of shoddiness of research, the bill does nothing to protect ID researchers.

Sexual orientation

Suppose for the sake of the argument (and, I think, contrary to fact) that same-sex sexual relationships are on par with opposite-sex ones, except instrumentally vis-à-vis reproduction. I think if one accepts this, then one should not consider sexual orientation to be a significant aspect of one's identity.

If George legitimately loves Patrick, then that should be a significant aspect of George's identity. Likewise, if he legitimately loves Suzy, then he should understand himself in part in terms of that love. But sexual orientation is not love. It is not an interpersonal relationship per se. For instance, heterosexuality and homosexuality are tendencies to develop an attraction only to people satisfying a certain necessary condition (being of the opposite or of the same sex as oneself, respectively), and to be attracted to them in part because they satisfy that condition.

But why should one take a tendency to develop certain attractions to be a significant part of one's identity? Such a tendency is a second-order relational trait. But it is first-order legitimate relationships with other people that, I submit, are what really matters. Of course, if one of these attractions is to morally illegitimate relationships, then it may matter for one's moral development that one does or does not have that attraction. But I was assuming, for the sake of the argument, that both kinds of relationships are legitimate.

However, one might think that if one's sexual orientation is unjustly discriminated against, then it makes sense to identify with it, out of solidarity with other people who share that orientation. If so, then there is an extrinsic reason to identify with a sexual orientation in the face of discrimination. That said, I am not completely sure that unjust discriminators should be allowed to dictate what we identify ourselves with (I have some Danish ancestry, which I hardly identify with; if there were discrimination against Danes, should I start identifying with it?). Still, I feel the force of the idea. And, if this response to my argument works, then it makes sense for non-heterosexuals to identify with their sexual orientation to the extent that they are the subject of unjust discrimination.

Final version of Mark Murphy's letter to the APA

Mark Murphy has closed the comments period on his letter to the APA (which follows a petition and a counterpetition), and he is collecting signatures by email. The final version of his text, together with a link to email him a signature, is here.

I would like to quote from the final paragraph of his letter:

The APA is a diverse association marked by deep pluralism. Its members can rightly expect that the APA will respect the deep differences among them in judgments about how it is reasonable for individuals to live and for communities to organize themselves, and it is far from clear that the suggested change in course does respect those differences. It has been correctly claimed by some who argue for the change in policy that any such respect has its limits: the APA of course would not respect colleges the common life of which was built on racist norms. In our view the appeal to this argument highlights what is involved in excluding or marking as beyond the pale the job advertisements from these Christian colleges. There is no serious reasoned disagreement on racist norms; the APA can rightly feel free to speak on behalf of its members to condemn any such. What would be involved in changing the APA's policy with respect to these Christian colleges is that the APA would be taking an official stand, speaking on behalf of all of its members, on what are still matters of deep and reasoned controversy among them: whether so-called traditional marriage has any privileged normative status and whether sexual activity outside such marriage is morally suspect. For the APA to take such a stand would be a grave error and an injustice.

Mark Murphy's Letter to the APA

First we had the petition, then the counterpetition. Now Mark Murphy, of Georgetown University, has drafted a sedate and carefully argued draft letter to the APA, also opposing the original petition. Murphy is asking for comments and criticisms by March 31 by email (see the link at the bottom of his post), at which point he will freeze his draft and collect signatures. (I am not enabling comments on this announcement--comments should be directed directly to Mark Murphy.)

APA petition

There are hot discussions on other blogs on petition asking the APA to treat institutions that discriminate on the basis of sexual behavior as violators of the APA's policy against discrimination on the basis of sexual orientation. There is also a counter-petition to maintain current APA practice and arguing that there is a distinction between orientation- and behavior-based discrimination.

It seems obvious to me that one can discriminate on the basis of a behavior without thereby discriminate on the basis of the tendency towards that behavior. Consider three cases:

• Institution A prohibits its employees from engaging in same-sex sexual activity, because on Christian religious grounds it believes such activity to be immoral.
• Institution B prohibits its employees from having sex, because on gnostic religious grounds it believes sex to be always immoral.
• Institution C prohibits its employees from having intercourse with members of the opposite sex, because they are convinced by Andrea Dworkin's arguments that opposite-sex intercourse is always wrong.[note 1]

Each of these three institutions has rules that differentially impact persons of different sexual orientations. Thus, it is easiest for asexuals and heterosexuals (I stipulatively use these terms, as well as "homosexual", to refer to orientation only) to follow the rules of A and hardest for exclusive homosexuals; it is easiest for asexuals to follow the rules of B, and hard for everybody else; and it is easiest for homosexuals and asexuals to follow the rules of C, and hardest for heterosexuals. (The asexuals have it easy all around!)

A policy is not discriminatory against a group G simply because it is harder, though still possible (and maybe even if impossible), for members of G to follow the rules, unless the rules were put in place precisely to make things harder for members of G. It is easier for those raised in an English-speaking family to speak English well. But requiring that faculty speak English well does not discriminate against those who were not raised in an English-speaking family, unless the rules on English speech were put into place precisely to make things harder for such people.

Now Institution B probably did not act in order to make things specifically harder for persons of non-asexual orientation. The concern seems very directly to be with behavior. Nor is Andrea Dworkin wishing to penalize heterosexuals; she just thinks that the geometry and social meaning of heterosexual intercourse is derogatory to women. Likewise, the traditional Christian arguments are not against homosexual orientation (while there are hints that some traditional Christian authors were aware of the phenomenon of homosexual orientation, they are much more concerned with behavior) but against behavior, and so, barring evidence of insincerity on the part of the institution, Institution A is probably not discriminating against people of homosexual orientation in this policy. (There may be discrimination based on homosexual orientation on an informal level, but that's a different question.)

So, none of the three institutions discriminates on the grounds of sexual orientation. There is a further question to ask, namely whether what they are doing is reasonable. But that would require examining the actual arguments against homosexual behavior, sex in general, and heterosexual intercourse, respectively. And the answer would not be directly relevant to the question whether there is discrimination on the grounds of sexual orientation.

Here is a quick test for whether x discriminates on the grounds of Y. If x's subjective reasons for her action would be no different were x not to know about the existence of Y, then x is not discriminating on the grounds of Y. Discrimination is an intentional behavior. Now, in Case A, it seems very likely that this test applies: the subjective reasons for discriminating on the basis of homosexual behavior would be equally present if the people running the institution didn't know about sexual orientation. Thought experiment: Would a Christian institution at a time when people didn't generally have the concept of sexual orientation be any less likely to discriminate on the basis of sexual behavior? Surely not. If anything, the contrary seems true.

Hobbies and male/female domination

Some occupations are male-dominated, and some are female-dominated. The fact that some occupations are male-dominated tends to give rise to worries about discrimination, overt or covert, present or past. The fact that some occupations are female-dominated tends to give rise to fewer such worries, though it may give rise to some. But as far as I know, very few people worry about the fact that some hobbies are male-dominated and some hobbies are female-dominated.

If the reason we worry about male-domination in an occupation is that we are concerned that women miss out on opportunities for living a particular meaningful form of life, then we should be equally worried in the case of male- and female-dominated hobbies. After all, for most people in the world, one's occupation is primarily of instrumental value—any other occupation of no greater irksomeness and no lesser earning potential would be just as good. But hobbies are of non-instrumental value—they directly give value to life. So if the worry is that the individual woman loses out by being discouraged by society from taking up a particular occupation, we should also worry about the individual woman or man losing out by being discouraged by society from taking up a particular hobby.

A different reason to worry about male-domination in an occupation, however, is that society loses out by this domination, either by losing out on the distinctive contributions of women, or by losing out on almost half of potentially qualified candidates. This worry, however, I think is only going to be very strong in the case of those professions that both provide significant social benefit, and where the benefit provided depends, in existence, kind and/or degree, to a large extent on the individuality of the worker, or in cases where there is a shortage of workers. Thus, mass-production of buses provides a significant social benefit, but the benefit does not significantly depend on the individuality of the line worker—any other line worker who does his or her job decently would do just as well—and as far as I know there is no significant shortage of autoworkers. On the other hand, the writing of novels or the provision of medical care provides a significant social benefit, where the existence, kind and degree of benefit all depend strongly on the individuality of the worker.

Insofar as it is these kinds of social contribution things that worry us, we are not so much concerned about the injustice to the particular woman kept out of an occupation, but the loss to society of her distinctive potential contribution. And this kind of worry does not occur in the case of a hobby, since hobbies, with some notable exceptions (e.g., the production of open source software, or the writing of poetry—both of which could just as much be occupations as hobbies), tend not to be of great social benefit, important though they are to the individuals.

I suspect in practice we have both kinds of worries about male-domination, to different degrees in different cases.