Affirmative Action

Another public policy issue in business ethics that involves discrimination is affirmative action. Actually this is another rather vague term that refers to a variety of strategies adopted by the United States government to "correct" the fact that, white males are disproportionately represented in many of the most lucrative professions. This includes: lawyers, surgeons, corporate CEOs, engineers, and college professors. Even when women or minorities do manage to break into these white male-dominated professions, they are often disproportionately compensated for doing essentially the same work that their white male counterparts. Based on stakeholder theory, one might argue this particular distribution in favor of white males is evidence of injustice toward women and minorities; that is, sexism and racism. They then argue that the government must intervene. Despite the shallow rhetoric you often hear in the media, the issues involved in affirmative action are both philosophically complex and of great social and political importance. The complexity arises from its association with the concept of "justice" and its importance stems from its fundamental influence upon social and political institutions. For this course, my question for you is whether the government ought to force businesses to hire more women and minorities.

Affirmative action refers to a set of public policies adopted by government, beginning in the 1960s. The perceived need to level the playing field arises from the basic condition of biological existence; namely, scarcity. In the state of nature, all organisms are thrust into life or death competition. Nature distributes resources unequally by blindly doling out competitive natural advantage and disadvantage. Among human beings, competitive advantages such as good health, physical appearance, and intelligence are all unevenly distributed. In general, organisms and species that benefit from this natural lottery, survive, and those who are disadvantaged do not survive. In short, nature distributes resources based on "survival of the fittest!" Fortunately for us humans, the vast majority of us have a stockpile of talents.

Natural advantage and disadvantage are also unevenly distributed throughout the lifespan of most organisms. The very youngest and very oldest individual organisms are usually disadvantaged in the competition for scarce resources and frequently end up in the food chain, as prey to other more "fit" organisms. With the evolution of human social tendencies, culture, and/or intelligence, human beings have managed to escape much of the struggle for survival through reciprocal altruism; that is, by helping one another through the creation of and by social and political institutions that shelter the youngest, oldest, and the otherwise disadvantaged members of our species.

The first collectivist systems of social redistribution were, no doubt, based on the principle of partiality; that is, certain individuals and groups of individuals were favored over others. In primitive times this probably involved redistributing resources based in familial or tribal association. Since then, other forms of partiality have evolved along with new systems of redistribution based on age, sex, nationality, racial characteristics, and sexual preference. As philosophers began to examine the social redistribution of resources among persons the concept of justice became the battleground. Aristotle noted, that there are two spheres of justice: justice in the distribution of resources and justice in retribution. Both involve the formal principle of justice, which states that "Individuals ought to receive no less nor more than they deserve." or "Treat equals equally and unequals unequally." As a formal principle, this does not tell us much about which individuals are to be considered equals. Arguments involving affirmative action may invoke either or both.

AFFIRMATIVE ACTION BASED ON DISTRIBUTIVE JUSTICE

Justice in the distribution of resources requires that we make some material determination of who deserves what. This entails material principles of distributive justice, or "patterns" which include: merit, need, equality and utility.
Unfortunately, it is not often clear which of these "patterns" ought to govern the social redistribution of any given resource and different individuals benefit from adopting any of these redistribution schemes. For example, merit scholarships are awarded to the best students, but not necessarily the neediest and scholarships based on need do not necessarily reward the best students. 

Much of the debate over affirmative action can be traced to philosophical differences between stockholder theorists and stakeholder theorists. Stockholder Theorists argue that all human beings naturally seek ownership of private property. This often precipitates competition for the most coveted and therefore most valuable resources. Hence, in order for an individual to privately own any resource, it is often necessary to expend one's own time and/or already held resources. Welfare Liberals acknowledge that economic competition for most scarce resources is probably unavoidable. However, they believe that, at least some very important resources (needs) ought to be distributed equally and not simply awarded as prizes in open economic competition. They often argue that all competition occurs under naturally unequal circumstances.
  
If I were to play chess against the world champion, even though the rules of engagement seem impartial, I cannot reasonably expect to win. Indeed, some of us are naturally advantaged with unearned genetic and/or social advantages such as intelligence, speed, agility, and even good looks. Others are disadvantaged. As long as the champ and I are competing for some trivial award, there is no problem. However, if the stakes include needs, or those resources essential to the preservation of life, then competition between us might be considered to be unfair. Even though we play by the same rules, we come to the game with unearned and unequal natural attributes. Stakeholder theorists argue that the primary function of government is to redistribute some resources, rather than merely preside over a mediated form of Darwinism, where the naturally advantaged win and the naturally disadvantaged lose. Therefore, while stockholder theorists favor small government with minimal interference in voluntary choices of individuals, stakeholder theorists favor intervention by government on behalf of the least advantaged segments of society: the poor, the sick, the elderly and children. Since any one of us can become disadvantaged at any time, even those of us who are presently greatly advantaged, it is in our rational self-interest to agree to contribute toward welfare. But for stock holder theorists, the rights of individuals are generally construed as negative rights, which guarantee only a right to compete for scarce resources without coercive interference from others or the government, unless that pursuit harms others.

Stakeholder theorists claim at least some positive rights for all citizens, which guarantee actual possession of at least some resources, without being subject to competition. Welfare liberals, therefore, must necessarily use the power of the government to forcibly take resources away from advantaged individuals (usually through a progressive income tax) and redistribute some of those resources to the least advantaged. Some commonly proposed positive rights or entitlements include: the right to basic health care, the right to competent legal assistance, the right to a sufficient quantity of food, and the right to basic shelter.

So in the United States, the argument over affirmative action has been staged primarily between the stockholder theorists,  who loath all forms of social redistribution of resources, and stakeholder theorists who generally defend it. Much of their debate is over the concept of "equality of opportunity." At the level of common sense, the concept of an "opportunity" refers to the conditions under which an individual competes. It stands midway between a mere chance and a guarantee. A lottery ticket is less than an "opportunity" to become a millionaire. On the other hand, if that lottery were rigged so that my winning was inevitable, that would be more than an "opportunity" for me, and much less than an "opportunity" for you! An equal opportunity , then, suggests that impartial rules govern the competition. However, if I won the Ohio Lottery three times in a row, you might suspect that the lottery was rigged or that the rules governing it were less than equal and impartial. Stockholder theorists argue that the highest paid jobs ought to be distributed based on merit; that is, the person best suited for the job ought to get it. Impartiality entails that public policy be blind to those attributes that have nothing to do with the determination of merit, such as sex, race, ethnicity, or age. Stakeholder Theorists do not believe that competition for the good jobs is, in fact, impartial. After all, white males overwhelming occupy the most prestigious and high paying professions such as corporate executives, surgeons, college professors, and U.S. senators. If the rules of competition for resources consistently yield results that reward white males, then either a.) men are naturally better at doing those things. Or, b.) those rules must be biased in favor of men. In other words sexism and/or racism must have surreptitiously entered into rule making process. They argue that government has an obligation to revise the rules of competition and reshape our culture until women and minorities are represented in the highest paying jobs proportionate to their numbers. In short, an end state that reveals a predominance of white male winners, must be either the product of unfair rules or an unfair application of those rules. In order to change patterns of unequal distribution, some defenders of affirmative want to require companies to hire a certain number of women and minorities. This is called a quota.

Many of the best jobs require many years of education. That's why many affirmative action programs target educational opportunity. Some African Americans, for example, say that they are denied access to an equal education because tax supported urban public schools are inferior and under-funded, while white suburban schools are superior and funded lavishly. In other words, educational opportunity is not equal. Some critics of affirmative action admit that we ought to improve inner-city schools, but not by reducing the quality of suburban schools or by lowering the standards for admission in professional schools for African Americans.

Although white middle class women are typically afforded better educational opportunities than African American or Latino males, some professional programs are still dominated by white males, especially in engineering and business. But even when women do receive the necessary education they find advancement in these professions difficult. Stakeholder theorists say that it is because male prejudice in the workplace, the "glass ceiling."

Some stockholder theorists say that this is because women generally lack either the professional commitment, or the natural abilities necessary to become engineers or business leaders. Because of the perception that many of these occupations do not afford equal opportunities for women and minorities, many women ,African Americans, and Latinos have simply chosen not to compete for these high paying jobs; which also has also tends to perpetuate white male dominance in those professions.

Other defenders of affirmative action point out that, even well-intentioned systems of merit often harbor covert racism, sexism, and other forms of partiality. Hence, even though we might intend to devise impartial procedures for distributing a merit scholarship, those procedures might actually end up unfairly rewarding entire classes (or groups) of individuals. That's why many of us doubt that I.Q. tests, ACTs, SATs, and Civil Service Exams are impartial measures of merit.

Stockholder theorists defend meritocracy and insist that merit is objective and measurable. Merit, they argue, is indeed often tied to natural attributes associated with age, sex, and race. All of us are naturally advantaged and disadvantaged in certain respects. I am a naturally disadvantaged basketball player because of my advanced age, lack of athletic ability, and short stature. It would make no economic sense for the NBA to level the playing field, just so I can play professional basketball. If the NBA has no moral or legal obligation to hire short, middle-aged, white guys then why should engineering firms, fire departments, and major corporations be forced to hire disadvantaged women and minorities? They say that in some areas "White men may simply more `fit' to compete!"

Although civilized society must set the rules for the competition for scarce resources, it must not interfere with nature's own distribution, even if it consistently rewards white males. Libertarians consistently argue that the role of government consists in preserving open competition. The principle of equality, they say, refers to the right to compete not the right to win. So when social scientists point out that the best jobs are held down by white males, libertarian economic conservatives respond by saying that , as long as the rules of competition did not a priori exclude women and minorities from competition, society ought to let the results of that open competition stand.

AFFIRMATIVE ACTION BASED ON RETRIBUTIVE JUSTICE  

The principle of retributive justice is often also applied in the context of retribution. If, distributive justice "looks forward" to correcting a future unjust distribution, retributive justice "looks back" in time and attempts to "pay back" those who have suffered unjustly through the actions of others. Retribution, serves as the basis of our criminal justice system.

The victims of crimes receive just or fair retribution when the perpetrator is justly punished by society. Historically many disadvantaged groups have suffered unjustly at the hands of the most advantaged groups. In the United States the best examples include: Native Americans, African Americans, Japanese Americans (during WW II), women, and homosexuals. Many welfare liberals argue that some of these groups and are entitled to retribution to make up for the injustices inflicted by white men over the past centuries. 

Affirmative action, then, can be seen as one attempt to pay back groups for historic discrimination. Historically, African Americans have been the victims of unjust distributional schemes based on racism. How do we make up for these transgressions? Retributive affirmative action programs might "pay back" present African Americans for past injustices against their ancestors. Or we might "pay back" more recent individual victims of injustice. There is much philosophical ambiguity over whether retributive affirmative action ought to operate at the level of individuals, racial or ethnic group, gender group, or social class.

Some argue that given our long history of racism and sexism, retributive affirmative action is impractical. After all, how far back into the past should we go in redressing past injustices committed against racial minorities? Moreover, why should I now bear responsibility for past injustices committed by my white ancestors when I played no part in those decisions? Two problems here: I cannot be held responsible for what other white guys have done collectively; and how far back can the present generation be held responsible for what past generations have done? One might, therefore, conclude that if retributive affirmative action can be justified at all, it should merely "pay back" individuals for recent or existing injustices and reform redistribution schemes so that future individuals do not become victims.

Affirmative action based on retribution attempts to correct historic injustices by repaying the descendants of those who have been treated unjustly. Typically this means compensating contemporary African and Native Americans. However, critics of retributive affirmative action object to the principle of requiring innocent individuals in the present generation to "repay" the descendants of those who were victims of injustice committed by previous generations. Justice, they argue, entails the reconciliation of the actual victims and perpetrators, not their descendants. How can I be held personally responsible for the unjust acts committed by previous generations of white men against native Americans? Not only was I not there, but my descendants, who came over from Italy, weren't either!

UTILITY BASED AFFIRMATIVE ACTION

 Some stakeholder theorists reject arguments based on distributive and retributive justice and embrace the principle of utility. They say that any given social policy can be justified if society as a whole benefits from it. Hence, affirmative action, they argue, is justified because the overall social benefits of having it outweigh its cost. For example, one utilitarian argument in favor of affirmative action is that, in the United States, women, African Americans, and Latinos are more likely to live in poverty than white men. Since poverty has a high social cost (welfare, crime etc.) it makes sense to force companies to hire more women and minorities. Of course, utilitarian critics of affirmative action say that the costs of affirmative action outweigh the benefits, if companies become loaded down with less competent women and African Americans. 

Most utilitarian critics of affirmative agree that public policy ought to be impartial; that is, "color blind" and or "gender blind." But they also say that by elevating the significance of race and gender in public policy, affirmative action has encouraged Americans to think of themselves as primarily white, black, male and female. This has led to widespread race and gender consciousness and discrimination. Deontological defenders of affirmative action say that when the government remains colorblind or gender-blind, it becomes a partner in perpetuating already existing forms of prejudice that stack the deck in favor of white males.
 Discrimination is a violation of the formal principle of justice because it gives some individuals more than they deserve and others less than they deserve. But if we do adopt affirmative action policies, then some previously advantaged groups become disadvantaged: in particular, white males. Some stockholder theorists argue that reverse discrimination also violates the formal principle of justice and therefore it is equally wrong.

QUESTIONS FOR DISCUSSION

1. In terms of public policy, should government treat persons as individuals or as group members? If, we are fundamentally group members, which group determines our identity? Am I essentially unique individual or am I simply a white male? In other words, should public policy be based on "impartiality" and be blind to the attributes of particular individuals such as race, gender, age, or sexual preference; or should it exercise "partiality" and help the disadvantaged?

2. What role should government play in mediating the competition for employment opportunities between groups and individuals? Should government simply guarantee the freedom of individuals to compete, or should government redistribute resources based on moral principles such as merit, need, equality, or social utility? Do individuals or groups have only a negative right to compete for resources, or do they also have a positive right to secure at least some job opportunities? 

3. What role should government play in fighting economic effects of racism, sexism, and other forms of prejudice?

4. Should Affirmative Action aim at utility (preventing future injustice) or retribution (paying back) groups and individuals that have suffered injustice in the past?