Job Discrimination and Gay Rights

650 PART FOUR The Organization and the People in It 4. What sort of formal policies, if any, should them, or are they only trying to reduce companies have regarding sexual harass- their legal liability? Is Schultz right that ment and sexual conduct by employees? corporations tend to focus on sexual mis- Should companies discourage dating and conduct while ignoring larger questions of offi ce romances? sex equality? If so, what explains this? 5. Are corporations genuinely concerned about sexual harassment? Is it a moral issue for READING 11.3 Job Discrimination and Gay Rights JOHN CORVINO Asked why, he explains, “Anti-discrimination ordinances are great, but they don’t fi x peo- Many gay, lesbian, and bisexual Americans suf- ple’s ignorance.” Todd characterizes some of fer from job discrimination because of their sex- his fi rm’s partners as “homophobic”—a few ual orientation. After distinguishing between have made gay jokes in his presence—and he two different senses of discrimination, John worries that, were his sexual orientation to Corvino argues that discriminating against a become known, it would affect his workload, person because of a certain characteristic is advancement opportunities, and general com- justifi ed only if that characteristic is job rel- fort level. When colleagues talk about their evant and that sexual orientation, like race or weekend activities, Todd remains vague. When religion, is not directly relevant to most jobs. they suggest fi xing him up with single female Turning then to the contention that discrimina- coworkers, he jokes that “I don’t buy my meat tion against gays is acceptable because homo- and bread from the same aisle”—then quickly sexuality is immoral, Corvino rebuts three changes the subject. common arguments: that homosexuality is Polls indicate that most Americans reject job wrong because it is unnatural, that it is wrong discrimination on the basis of sexual orienta- because it is harmful, and that it is wrong tion, and many companies—including 90 per- because it is contrary to religion. None of these cent of Fortune 500 companies—prohibit it. arguments justifi es job discrimination against Still, in most states it is perfectly legal to fi re gays and lesbians, Corvino argues; moreover, someone for being gay. (The passage of a fed- such discrimination undermines important eral ENDA—Employment Non-Discrimination moral values. John Corvino teaches philoso- Act—would change that.) Even where such phy at Wayne State University in Detroit and discrimination is prohibited, gay, lesbian, and writes on gay rights at www.johncorvino.com. bisexual Americans often remain closeted at work. Like Todd, many fear that even if their Todd is an attorney for a well-respected law jobs are secure, they may suffer more subtle fi rm in a large midwestern city. Although there job-related discrimination: lousy assignments, are no municipal, state, or federal laws prohibit- poor performance reviews, “glass ceilings,” ing sexual-orientation discrimination where he and so on. lives, his fi rm has explicit guidelines forbidding Is it wrong to discriminate against gays in such discrimination. Yet Todd—who is gay— employment, and if so, why? This essay considers for the most part stays “in the closet” at work. that question. I am concerned with the moral constraints on discrimination rather than the legal constraints, although these are related in Copyright © 2009 John Corvino. important ways. Furthermore, for simplicity’s 44690_11_ch11_p606-657.indd690_11_ch11_p606-657.indd 665050 112/20/082/20/08 44:22:44:22:44 PPMM CHAPTER 11 Job Discrimination 651 sake I mainly focus on discrimination in hiring, blacks when hiring an actor to portray John F. although job discrimination against gays may Kennedy because (barring elaborate makeup) occur in a variety of ways. black actors would make less convincing JFKs than would white actors, all else being equal. DISCRIMINATION AND RELEVANCE But it is not permissible to discriminate against blacks when hiring, say, an accountant, because Some think that it’s obviously wrong to discrim- (without further background information) race inate against gays in employment, because dis- does not appear relevant to the job of being an crimination is wrong by defi nition. To address accountant.2 The operative principle seems to this concern, let us fi rst distinguish between dif- be this: Job discrimination against people on ferent senses of the term discrimination. In one the grounds of characteristic X is permissible sense, to discriminate is simply to treat things whenever X is relevant to the job in question; differently. Call this the “value-neutral” sense it is usually impermissible otherwise.3 of discrimination. Sometimes discriminating— Is sexual orientation ever relevant to jobs? In treating things differently—is a good thing. We rare cases, it surely is: Imagine hiring a peer coun- talk about “discriminating shoppers” or “dis- selor for a gay and lesbian community center, for criminating tastes.” Moreover, it is not wrong example. But sexual orientation—like race—does to discriminate against blind people when hir- not seem directly relevant to most jobs. ing bus drivers, or to discriminate in favor of Some philosophers, such as Michael Levin, attractive people when hiring magazine models.1 argue that a characteristic is job-relevant as Indeed, the hiring process might be described as long as the employer considers it relevant. He a process of discrimination wherein employers uses the example of Bob, who (due to some try to sort the better candidates for a given posi- employers’ distaste for homosexuality) fi nds tion from the weaker. that being gay bars him from some positions. In another sense, however, to discriminate is Levin writes, to treat things differently for unjust reasons. In this (perhaps more familiar) sense, discrimina- It might seem unfair for Bob to have to tion is indeed necessarily wrong. Call this the extend himself in ways heterosexuals do “value-negative” sense of discrimination. When not, but everyone in a labor market must people talk about “job discrimination,” they to some extent conform to employer generally have this negative sense in mind. demands, just as employers must to some extent conform to employee demands if The problem, of course, is determining they hope to fi nd a workforce. It might also whether discrimination (in the value-neutral seem unfair that Bob should have to settle sense of treating things differently) is just in a for less because of a trait that is not job- given case. It seems permissible to discriminate related, but phrasing the complaint that in favor of attractive people when hiring models, way begs the question. Since the employer but what about when hiring fl ight attendants? It with whom Bob is dealing considers sex- seems permissible to discriminate against black ual orientation relevant, it is relevant. Jobs actors when hiring someone to play John F. are not Platonic entities with qualifi ca- Kennedy for a TV movie, but what about when tions internal to their essences; they exist hiring someone to play Shakespeare’s Romeo in concrete bargaining situations where for a community-theater production? interactants impose whatever conditions they deem appropriate. Relevance is in the One might answer that the justice of dis- eyes of the bargainers.4 criminating against people with particular characteristics depends on whether the char- Levin’s view that relevance is in the eyes of acteristic is relevant to the job in question. the bargainers seems extreme. Although jobs are It is permissible to discriminate against blind not “Platonic entities,” neither are they entirely people when hiring bus drivers because blind a function of an employer’s whims. The “con- people cannot drive (or at least cannot drive crete bargaining situations” in which they exist well). It is permissible to discriminate against include legitimate social expectations, as well as 44690_11_ch11_p606-657.indd690_11_ch11_p606-657.indd 665151 112/20/082/20/08 44:22:44:22:44 PPMM 652 PART FOUR The Organization and the People in It nonarbitrary facts about the world. They also certain jobs, moving into certain neighbor- include certain moral constraints. Thus, even hoods, marrying certain partners, and so on. if Levin could make the case that relevance is In other words, the racist objects to behaviors, entirely determined by the person offering the both real and imagined. Calling race “non- job, that conclusion would not settle questions behavioral” misses this important fact. of justice. At the same time, calling homosexual- For illustration, consider the following case. ity “behavioral” misses quite a bit as well. Suppose Margaret is a restaurant owner who Put aside the nature/nurture debate over the wants to hire a white waiter for her “whites cause or origin of sexual orientation. It’s only” restaurant. An applicant’s race would true that homosexuality (like heterosexual- indeed be relevant to the job that Margaret ity) is expressed in behaviors. But one need is offering as Margaret envisions it. But we not be sexually active to be fi red from a job, wouldn’t conclude from this example that race kicked out of one’s apartment, or verbally or is relevant to the job of being a waiter in gen- physically abused for being gay. Merely being eral. And we certainly wouldn’t conclude that perceived as gay (without any homosexual Margaret’s discrimination against nonwhites “behavior”) is enough to trigger the discrimi- is morally justifi ed. What this example shows nation. So the sharp boundary Powell draws is that a characteristic’s being job-relevant (in between behavioral and nonbehavioral char- Levin’s understanding of relevance) is not by acteristics, with sexual orientation falling on itself suffi cient to morally justify discrimina- the one side and race falling on the other, tion on the basis of that characteristic.

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