Discrimination and Affirmative Action

by Dr. Jan Garrett

This page was last updated April 23, 2004.

This page is based on parts of Manuel Velasquez, Business Ethics: Concepts and Cases (Prentice-Hall), chapter 7, and Gertrude Ezorsky, "Discrimination," Encyclopedia of Ethics (New York: Garland, 1992), 264-67.

The best short definition of affirmative action is one that focuses on its aim: "to contribute to the demise of occupational segregation by reducing the racist or sexist impact which bias-free practices . . . have on women and minorities." (Ezorsky, p. 265).

Some authors distinguish two kinds of affirmative action:

Unspecific affirmative action is illustrated by "good faith" outreach efforts to recruit minorities and women (without specific numerical targets) through the advertising of positions . . . Specific affirmative action is exemplified in . . . setting numerical hiring goals and . . . validation of qualification requirements. (Ezorsky, ibid.)

("Validation of qualification requirements" means that employers must prove that tests used to determine qualifications reliably measure ability to perform the job.)

There are three common myths about affirmative action:

1. Affirmative Action means that incompetent people are given jobs for which they are unqualified.

2. Affirmative Action always involves preferential hiring or admissions for members of certain racial or gender groups.

3. When Affirmative Action involves preferential hiring or admissions, as it sometimes does, this is always discrimination in the bad sense of the term.

We can easily see why #2 is false when we realize that Affirmative Action includes "good faith" outreach efforts to recruit minorities and women. To understand why the other common beliefs are incorrect, we must investigate the nature of discrimination. The term "discriminate" has a morally neutral meaning and a meaning that implies social injustice (and often moral error). The meaning that involves social injustice itself covers four types of discriminatory action that should be distinguished. One of these four types is specifically relevant to the perceived need for affirmative action.

In its basic sense, the term "discriminate" means to mark or perceive the distinguishing or peculiar features of [something] (Webster's New Collegiate Dictionary, 1973). Every reasoned judgment involves discrimination in this sense. To say, for example, that since a person is highly skilled at something, that person is, other things equal, the person we should hire, is to discriminate between being skilled and not being skilled at that thing.

But we are concerned now with the kind of discrimination that involves social injustice. With this sort of discrimination, either the criteria being used are not a proper basis for admittance, hiring, compensation or promotion or they have the same systematic effect as such criteria. The improper criteria to which I am referring are usually racial or gender classifications, though they could relate to religious, political, or sexual orientation.

Manuel Velasquez, author of Business Ethics: Concepts and Cases (Prentice-Hall), defines (job) discrimination as follows:

making an adverse decision (or set of decisions) against employees (or prospective employees) who belong to a certain class because of a morally unjustified prejudice [understood as an unjustifiable attitude or belief with likely harmful consequences--J.G.] toward members of that class.

On this definition, three conditions must be met before an an action or decision counts as job discrimination. The decision:

1) derives at least in part from morally unjustified attitude against members of the class to which the target of discrimination belongs, viz. the assumption of inferiority.

2) has a harmful or negative impact upon the interests of the persons who are targets of discrimination.

3) is not based on individual merit, e.g., ability to do a job, experience, etc.

Some persons who say that affirmative action is discrimination seem to think that condition (3) by itself is enough to make an action discriminatory. Others think that that Affirmative Action makes white males targets of discrimination; they appear to believe (mistakenly) that (2)+(3), even in the absence of (1), are enough to make an act discriminatory.

But defenders of Affirmative Action hold that the first condition (1) is a necessary feature for the type of discrimination that is never right. Affirmative Action is not based upon assumptions that white males as whites or males are incompetent or morally inferior. In fact, Affirmative Action programs are justified by the need to counteract the continuing effects of such discrimination against peoples of color or women. These effects sometimes operate openly but most often in very subtle ways.

To understand the strongest argument for Affirmative Action, you must understand the distinctions (1) between institutionalized and "isolated" discrimination and (2) between intentional and unintentional discrimination.

Discrimination is intentional to the extent to which a moral agent consciously or knowingly or deliberately acts in a discriminatory way. What makes a person's or an organization's discrimination intentional is that he, she or it decides on the basis of an illegitimate attitude towards a group and is conscious of singling a person out for negative treatment because of his or her membership in a certain group. Discrimination which is not intentional is unintentional.

Discrimination is institutionalized if it is part of the systematic routine of an organization (such as a government, corporation, university, church, or club).

Discrimination which is not institutionalized is by definition isolated. (In this sense it could be "isolated" and relatively frequent.)

Examples of routines that encourage or preserve racist or sexist impact in occupations are: job-irrelevant qualification requirements, hiring by personal connections, and seniority-based selection. (Ezorsky, ibid.)

The following example illustrates unintentional institutionalized discrimination: A clothing store had two departments, one that served male customers, another that served female customers. Women sales people could not work in the men's department, and vice versa. Women sales people were paid less than male sales people on the ground that the men's clothing was of higher quality and the profit margin was higher. Women were prevented from selling in the men's department because, it was alleged, male customers would rather deal with male salespersons than women salespersons.

Another way in which unintentional discrimination occurs is when hiring decisions reflect preexisting personal contacts. Suppose the boss asks his employes, who happen to be all white, to recommend a young person they know who seems reliable and trustworthy for an entry-level opening in the firm. The employes, without intending to discriminate, may find such a young job candidate among their white neighbors in their mostly white neighborhoods or among the members of their virtually white churches. (It is a sociological fact that Sunday is still the most segregated day in the United States.) Thus the names of the individuals given to the boss as candidates for the entry-level positions turn out to be all white, even if no consciously racist thought crosses anybody's mind.

When discrimination is institutionalized, it is possible for the people who administer the system to pretend or even believe that they are not discriminating. But unintentional institutionalized discrimination is still socially unjust because it prolongs the effects--continues to inflict the damage--of institutionalized discrimination.

Discrimination can be both institutionalized and intentional. A good example is the Ku Klux Klan. Much discrimination in today's society, however, is institutionalized but not intentional, at least not in any obvious way.

This distinction is important. Laws against discrimination are especially effective against intentional institutionalized discrimination in public institutions such as government agencies or quasipublic institutions like corporations. Institutions often write their policies down, or else, in order to maintain the policy, they state the policy often enough that it cannot be hidden from the public. Where discriminatory policies of this sort can be proven, companies can be charged under anti-discrimination laws.

Non-institutionalized or isolated discrimination is harder to prove, but it is also less of a basic problem, because as institutions effectively change, the individuals that are part of them gradually change.

The problem is that institutionalized discrimination seems to remain long after clearly provable intentional discrimination has ceased to be found. So what do we do about the kind of institutionalized discrimination which we call unintentional either because it really is not intentional or we cannot prove that it is intentional?

Now, some may deny that institutionalized discrimination exists since, they say, organized intentional discrimination has vanished. But the statistical evidence strongly suggests otherwise, and that sets the scene for affirmative action.

Now, the topic of affirmative action could not have arisen unless:

(1) we, as a society, grant that there has been a history of discrimination;

(2) we affirm that the lack of proportion between (a) members of certain minorities and women in higher paying jobs or the workforce generally on the one hand and their (b) representation either in the community or in the job pool is, at least in many cases, a social injustice;

(3) we reject the explanation that the disproportionality is caused by members of these groups being inherently incompetent or immoral or lazy. (To adopt this explanation would be to adopt a racist or sexist standpoint.)

It seems to follow that the cause of statistically provable disproportionality, at least in many cases, is

(1) the social, political, economic, and cultural disadvantages suffered by women and minorities in the past

OR (2) the operation of procedures which appear neutral but are actually skewed against minorities or women

OR (3) the operation, on the individual level, of residual prejudices against women and minorities,

Or (4) some combination of (1)-(3).

Against this background, we can discuss the moral justification for Affirmative Action Programs (in particular, those with an element of Preferential Treatment). There are at least three main attempts to justify such Affirmative Action Programs.

Equal-Justice-as-End Justifies the Means of Affirmative Action. (This argument, given last by Manuel Velasquez, is the one he takes to be strongest.)

As a society under law, our society presupposes the legitimacy of equal justice to members of all groups. Affirmative Action programs are means to bring about equal justice in several ways:

(i) Prejudices which are not intentional but nonetheless widely shared and subtly institutionalized still operate to produce discriminatory results. Affirmative Action can counteract this situation.

(ii) The lack of equal material opportunity as children--which has gotten worse, not better since the first edition of Velasquez's text in the early 1980's--results in unequal education and lack of equal opportunity as adults. Affirmative Action programs can counteract this.

(iii) The lack of suitable role models (as a result of past discrimination) also undermines the possibility of adult success in oppressed groups. Affirmative Action can counteract this.

Objection 1. Affirmative Action programs discriminate against white males. (To choose a woman or minority male when the white male applicant is equally or slightly more qualified is discrimination.)

Response to Objection 1. It is not wrongful discrimination because it is not motivated by the assumption that the white male is inferior but by the assumption that otherwise the white male has an unfair advantage.

Objection 2. Affirmative Action programs violate the fundamental principle of justice itself. Equals in the relevant respects should be treated equally.

Response to Objection 2. In a society with a history of discrimination and a continuing legacy of discrimination black or female employes can contribute to society in a way that white males cannot. Just as some people are chosen for some jobs (TV news anchor, say) because of their good looks (largely an inherited quality beyond one's control), so other people may be chosen for jobs because they can be much needed a role model for black or female youth. This would cause real ethical problems only if race or gender were to be the sole or primary qualifi-cation, or if the results of past discrimination had been finally overcome.

Other arguments for Affirmative Action are less effective.

1. Compensatory Justice. People have an obligation to compensate those whom they have injured. (Some, but not all, and perhaps not the oldest traditions, say intentionally injured.) The dominant groups in society have injured minorities and women; therefore they have a duty to compensate these groups.

Objection to 1. Compensatory justice applies to individuals not to groups. The people being "compensated" by Affirmative Action are usually not the individuals most injured by past discrimination. Discrimination as a past practice was unfair, but present members of the same group have no right to compensation because of what was done to people now dead. Also, Affirmative Action helps mainly those members of the minority or female group who already fairly well off (most of the time a minority or female applicant has to be more or less tied with other applicants before Affirmative Action gives the individuals an edge), and these are just the individuals whom discrimination has injured the least.

2. Utilitarian Argument for Affirmative Action as a Means to Achieve Greater Public Welfare. In this case, the end (reducing poverty, a sense of helplessness and lack of self-esteem, social division, etc.) justifies the means (giving female and minority applicants a slight edge when they are competing with members of other groups for similar jobs).

Criticism of 2. Should we give up Affirmative Action programs if the total social happiness produced by them is outweighed by the social unhappiness produced by them? Utilitarian reasoning would seem to justify that decision. That would imply that if members of the dominant group felt injured sufficiently by Affirmative Action programs, then such programs would have to be curtailed. Affirmative Action defenders would respond that this allows the privileged group to demand that their possible loss of an unjust advantage be treated as more important than the injured group's reacquisition of equality.

Comparable Worth

The more an occupation is dominated by women, the less it pays. Advocates of comparable pay for comparable worth deny that this fact reflects the relative ease, safety, or skill level of the jobs held by women in comparison to the jobs held by men. They argue that it reflects a systematic bias that if a job is usually held by women, then it must be easier, require less skill or education, and so on.

Defenders of "comparative pay for comparative worth" argue that rather than, or in addition to, trying to integrate occupations through affirmative action programs, we ought to objectively analyze the skill levels, education levels, difficulty levels, hazard levels, etc., associated with each type of job (regardless of what gender usually holds the job), and then assign point-values to the various levels. Then a salary could be determined for a job on the basis of the total points associated with the job. If we were to do this, we would see that legal secretaries and instrument repair persons would earn equal points and therefore should receive equal salaries, instead of instrument repair persons receiving some $9000 more than legal secretaries.