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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

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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

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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. Justify- is both false and misleading when applied to ing discrimination requires looking at, among real-world discrimination. other things, the effects of such discrimination But Powell doesn’t merely misunderstand on individuals and society. the nature of racism and homophobia. He also misunderstands the comparison between the RACE VERSUS SEXUAL ORIENTATION two. Whether a comparison is apt (or “valid,” as Powell puts it) depends crucially on the point Some might object to the “whites only” exam- of the comparison. In the discussion above, ple on the grounds that racial discrimination I compared race and sexual orientation on the and sexual-orientation discrimination are differ- grounds that neither characteristic is directly ent. As former secretary of state and retired U.S. relevant to performing most jobs. That fact Army general Colin Powell once put it, “Skin remains true regardless of whether either char- color is a benign, nonbehavioral characteristic. acteristic is behavioral. Analogies don’t involve Sexual orientation is perhaps the most profound comparing two things that are similar in every of human behavioral characteristics. Comparison respect; they involve comparing two things of the two is a convenient but invalid argument.” that are similar in some relevant respect(s). Powell made this statement in 1993, when Here, the similarity involves the job relevance, he was chairman of the Joint Chiefs of Staff, in or the lack thereof, of the trait in question. It response to the gays-in-the-military debate. His is also worth noting that something’s being more recent comments suggest that his position behavioral doesn’t disqualify it from being a on gays in the military has softened. Neverthe- wrongful subject of discrimination. A person’s less, this objection to the analogy between race religion is chosen—and changeable—yet dis- and sexual orientation is a familiar one. But the crimination on the basis of religious practice is objection falters for several reasons. It misunder- almost universally condemned in this country. stands the nature of racism, the nature of homo- phobia, and the comparison between the two. DISCRIMINATION AND MORALITY Although race is in some sense “nonbehav- ioral,” racism is all about chosen behaviors. Thus far I have argued that discrimination (in The racist doesn’t simply object to people’s the sense of treating things differently) is some- skin color: he or she objects to their taking times justifi ed, that relevance is an important

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but potentially insuffi cient factor in determining these activities is immoral simply because it is when discrimination is justifi ed, and that com- practiced by a minority of people. parison to other traits (such as race and religion) can be useful in understanding the issue of rel- What Is Not Practiced by Other Animals Is evance. But we still haven’t confronted the main Unnatural Some argue, “Even animals know factor in job discrimination against gays and les- better than to behave homosexually; homo- bians: the belief that homosexuality is immoral. sexuality must be wrong.” This argument is doubly fl awed. First, it rests on a false premise: One might object that this belief is—or Numerous studies have shown that some ani- should be—irrelevant to the hiring process. mals do form homosexual pair-bonds. Second, Why should one care about the “private” even if that premise were true, it would not moral character of the people one hires? But prove that homosexuality is immoral. After all, this objection is shortsighted. For one thing, animals don’t cook their food, brush their teeth, the line between “private” morality and “pro- attend college, or read the newspaper; human fessional” or “public” morality is problematic. beings do all of these without moral censure. Moral character is moral character, and it is The notion that we ought to look to animals not unreasonable for employers to use per- for our moral standards is simply facetious. sonal virtue (for example, by asking for char- acter references from job applicants) as a proxy What Does Not Proceed from Innate Desires for business virtue. Beyond that, business has Is Unnatural Some people argue that homo- a profound impact on society. The increas- sexual people are “born that way” and that it ing presence of openly gay people in various is therefore natural and good for them to form professions has infl uenced social acceptance of homosexual relationships. Others insist that gays and lesbians (and vice versa). Those who homosexuality is a “lifestyle choice,” which object to such acceptance on moral grounds is therefore unnatural and wrong. Both sides might reasonably object to hiring open gays assume a connection between the origin of and lesbians, all else being equal. homosexual orientation and the moral value of The moral arguments against homosexual- homosexual activity. And insofar as they share ity tend to fall into three categories: nature, that assumption, both sides are mistaken. harm, and religion. Let me briefl y address each Consider fi rst the side that assumes that all in turn.5 innate desires are good ones. This assumption is clearly false. Research suggests that some Nature people are born with a predisposition toward People often argue that homosexuality is “unnat- violence, but such people have no more right ural.” But what does that mean? On the one hand, to strangle their neighbors than does anyone many things we value—like clothing, medicine, else. So even though some people may be born and government—are unnatural in some sense. with homosexual tendencies, it doesn’t follow On the other hand, many things we detest—like that they ought to act on them. disease, suffering, and death—are “natural” in Nor does it follow that they ought not to act some sense. If the unnaturalness charge is to be on them, even if the tendencies are not innate. more than an empty rhetorical fl ourish, those I probably do not have any innate tendency who levy it must specify what they mean. to write with my left hand (since I, like every- one else in my family, have always been right- What Is Unusual or Abnormal Is Unnatural handed), but it doesn’t follow that it would be One meaning of unnatural refers to that which immoral for me to do so. So simply asserting is statistically abnormal. Obviously, most peo- that homosexuality is a “lifestyle choice” will ple engage in heterosexual relationships. But not prove that it is an immoral lifestyle choice. does it follow that it is wrong to engage in homosexual relationships? Relatively few peo- What Violates an Organ’s Principal Purpose ple read Sanskrit, play the mandolin, breed Is Unnatural Perhaps when people claim that goats, or write with both hands, yet none of homosexual sex is unnatural they mean that it

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cannot result in procreation. The idea behind (human immunodefi ciency virus) causes AIDS, the argument is that human organs have vari- and without the virus being present, homo- ous “natural” purposes—eyes are for seeing, sexual people can have as much sex as they ears are for hearing, genitals are for procreat- like without worrying about AIDS. (Fatigue, ing, and so on. According to this view, it is yes; AIDS, no.) immoral to use an organ in a way that violates But the critics doubtless mean something a its particular purpose. bit more sophisticated—namely, that (for men) Many of our organs, however, have mul- homosexual sex is statistically more likely than tiple purposes. I can use my mouth for talk- heterosexual sex to transmit HIV. This claim is ing, eating, breathing, licking stamps, chewing true (given various signifi cant qualifi cations), gum, kissing women, or kissing men, and it but it is unclear what follows. Consider the seems rather arbitrary to claim that all but fact that, for women, heterosexual sex is sta- the last use are “natural.” (And if we say that tistically more likely than homosexual sex to some of the other uses are “unnatural but not transmit the virus. Yet no one concludes from immoral,” we have failed to specify a morally this that the U.S. surgeon general ought to rec- relevant sense of the term natural.) ommend lesbianism, or that lesbianism is mor- Just because people can and do use their ally superior to female heterosexuality. There sexual organs to procreate, it does not fol- are simply too many steps missing in the argu- low that they should not use them for other ment. The general form of the harm argument purposes. Sexual organs seem well suited for seems to be the following: expressing love, for giving and receiving plea- sure, and for celebrating, replenishing, and Premise (1): Homosexual sex is risky. enhancing relationships—even when procrea- Premise (2): Risky behavior is immoral. tion is not a factor. This is why heterosexual Conclusion: Therefore, homosexual sex is people have sex even if they don’t want—or immoral. can’t have—children. To allow heterosexual people to pursue sex without procreation Both premises are false as written. Some homo- while forbidding homosexual people to do the sexual sex is risky, as is some heterosexual same is morally inconsistent. sex, not to mention many nonsexual activities. Some risky behavior is immoral, but much is Harm not. (Consider: Driving is riskier than walking, The Roman emperor Justinian believed that football is riskier than chess, coal mining is homosexuality causes earthquakes, plagues, riskier than accounting, and so on.) famine, and various other maladies. Modern- But what about risks to nonconsenting par- day critics have been only slightly less creative ties? If I choose to subject myself to risks in in their allegations. Homosexuality has been order to achieve certain aims, most people blamed for the breakdown of the family, the would consider that “my business.” But if I AIDS crisis, sexual-abuse scandals, even the willfully impose risks on unsuspecting others, 9/11 attacks. I can rightfully be blamed. Does homosexual- Let us put aside the ridiculous allegations ity involve such “public” risks? Some critics, and focus on the more plausible ones. If homo- for example, blame gays and lesbians for their sexuality were indeed harmful to individuals or “threat to the family.” This claim is perplex- society, that fact would seem to provide a sig- ing. Homosexual people come from families, nifi cant moral strike against it. But is it really many are quite devoted to their families, and harmful? And do the allegations prove what an increasing number are forming families of the critics claim—namely, that homosexuality their own. Provided that these families embody is morally wrong? love, generosity, commitment—in short, fam- Consider one of the more common charges: ily values—it’s not clear where the harm is. It that homosexuality causes AIDS. On a straight- is not as if the increased visibility of gay and forward reading, this claim is simply false. HIV lesbian couples will lead people to fl ee from

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heterosexual marriage in droves. After all, the WHY DISCRIMINATION IS WRONG usual response to a gay person is not “Not fair! The most common moral arguments against How come he gets to be gay and I don’t?” homosexuality don’t withstand philosophical The fact is that some people are happier scrutiny—certainly not in a way that justifi es in heterosexual relationships, some are hap- using them to defend job discrimination against pier in homosexual relationships, and some gays and lesbians. I want to conclude by refo- (relatively few) are happier alone. If we are cusing the discussion on the morality of such concerned with the morally admirable goal of discrimination. Insofar as such discrimination reducing harm, we must begin by acknowledg- harms people’s ability to secure and maintain ing this fact. Otherwise, our efforts to reduce a livelihood, there are serious moral arguments harm may unwittingly increase it—by pres- against it. In his work A More Perfect Union: suring people into relationships that are ulti- Why Straight America Must Stand Up for Gay mately unsuitable for them (and for those they Rights, the philosopher Richard Mohr details marry), and by needlessly ostracizing those at least four important values undermined by whose romantic inclinations differ from the anti-gay job discrimination: self-respect, self- majority’s. suffi ciency, general prosperity, and individual 6 Religion fl ourishing. A third and fi nal type of moral argument 1. Self-respect: Careers are a common constit- stems from religion. It is diffi cult to provide a uent in self-identity—“What do you do?” is substantial treatment of religious arguments one of the fi rst questions we ask upon meet- in a short space, for a variety of reasons: the ing new acquaintances. Furthermore, peo- diversity of religious belief, the challenges of ple tend to derive a sense of purpose and interpreting ancient texts, the problems with meaning from their work. As Mohr writes, justifying claims about a transcendent (and “A large but largely unrecognized part of thus to some extent unknowable) deity, and so the misery of unemployment is not merely on. Instead, let us simply note the inconsistency poverty and social embarrassment, but also of those who appeal to religious arguments a sense of loss of that by which one defi ned about homosexuality in the public arena, when oneself.”7 they would never do so regarding other sub- 2. Self-suffi ciency: Related to self-respect is jects. If they quote Leviticus 18:22 to justify self-suffi ciency, the ability to provide for discrimination against gays in employment, do one’s own basic needs. Meeting such needs they quote Exodus 35:2 to justify discrimina- is a necessary condition for being able to tion against those who fail to observe the Sab- carry out one’s other plans and projects. bath, or Mark 10:9 or Luke 16:18 to justify Children typically look to their parents to discrimination against divorced people? Even meet such needs, but adults typically look if homosexuality were a sin—a point on which to employment. Without employment or religious scholars differ—the tendency to treat independent wealth, they must seek assist- it as a kind of “deal-breaker” sin, different ance from the state. The resulting demands from premarital sex, divorce, adultery, and on the public purse are yet another social other activities condemned by most religions— cost of discrimination. fi nds no justifi cation in the scriptures quoted. 3. General prosperity: Mohr identifi es three Instead, this tendency suggests that discrimina- ways in which eliminating anti-gay job discri- tion against gays and lesbians is more about mination would promote general prosper- prejudice than about thoughtful and consis- ity. First, by eliminating extraneous factors tent appeal to religious values. Besides, as long in hiring decisions, it would maximize the as we remain committed to religious freedom, fi t between a worker’s qualifi cations and “My religion says so” provides an inadequate the tasks to be performed. Although there justifi cation for discrimination in the public might be cases in which sexual orientation arena, including employment. is relevant to job fi tness—including, perhaps,

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certain religious contexts—in most cases 3. I don’t think this principle works when it is not. Second, it would minimize the understood in terms of strict necessary and distractions of the closet—the wasted emo- sufficient conditions, for reasons I will partly tional energy that goes into hiding a sig- explain shortly. nifi cant part of one’s life at work. In both of 4. Laurence M. Thomas and Michael E. Levin, these ways eliminating discrimination would Sexual Orientation and Human Rights (Lanham, MD.: Rowman & Littlefi eld, 1999), help promote effi ciency. And third, it would p. 92. promote the general happiness: Meaningful 5. For a more thorough discussion, see John Cor- work fosters individual happiness, which in vino, “Why Shouldn’t Tommy and Jim Have turn leads to a happy society. Sex?—A Defense of Homosexuality?” in John 4. Individual fl ourishing: Finally, reducing anti- Corvino, ed., Same Sex: Debating the Ethics, gay job discrimination would promote indi- Science, and Culture of Homosexuality (Lan- vidual fl ourishing, both for reasons already ham, MD.: Rowman & Littlefi eld, 1997), pp. stated and also by expanding individual 3–16. choice. The idea here is that prohibiting 6. Richard Mohr, A More Perfect Union: Why sexual-orientation employment discrimina- Straight America Must Stand Up for Gay Rights tion would not merely promote security, but (Boston: Beacon Press, 1994), pp. 77 ff. would also promote autonomy—another 7. Ibid., p. 78. core moral value. Review and Discussion Questions In short, discrimination against gays and les- 1. Have you or has anyone you’ve known ever bians in employment has serious moral costs experienced discrimination on grounds without any clear corresponding moral benefi t. of sexual orientation? In your view, how If one is going to deny a person employment—or widespread is such discrimination? What undermine an existing employee’s professional do you think explains it? opportunities—one ought to have a good rea- 2. What are the two senses of discrimina- son. In most cases sexual orientation does not tion that Corvino distinguishes between? constitute such a reason. Do you agree with him that the justice of Mohr argues in favor of civil rights legisla- discrimination depends on whether the tion to prohibit discrimination on the basis characteristic in question is job-relevant? of sexual orientation. Reasonable minds may Give examples of when a person’s race, differ on the appropriate role of the law here. sex, religion, or sexual orientation might But regardless of whether such discrimina- be job-relevant. Or are such characteris- tion should be legal—as it currently is in most tics never job-relevant? Explain Michael states—it does not appear to be moral. A just Levin’s view of job relevance. What is Cor- society should seek to eliminate it. vino’s response to it? Should employers be able to determine what is, and what is not, job-relevant? Notes 3. On what grounds do Colin Powell and 1. This is not to diminish important questions others reject the analogy between racial about the way advertising affects widespread discrimination and sexual-orientation dis- (and sometimes unreasonable) standards of crimination? Do you agree with Corvino’s beauty. response to this objection? 2. One could provide cases with such background 4. Some people argue that there is nothing information: Suppose that one is hiring an accountant to serve a majority-black population wrong with homosexuality because homo- that is far more comfortable with, and likely to sexuals are “born that way.” Others argue use the services of, a black accountant. This fact that homosexuality is merely “lifestyle would make race relevant, although it still leaves choice” and therefore unnatural and wrong. open the question of whether such discrimina- Explain why Corvino rejects both these tion would be unjustifi ed on other grounds. arguments. Do you agree that debate over

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the origin of homosexual orientation is 7. Following Richard Mohr, Corvino argues morally irrelevant? that job discrimination against gays under- 5. How does Corvino respond to the argument mines four important values. Explain what that homosexuality is unnatural because it these values are and whether you agree or violates the function of the genitals, which disagree with Corvino’s argument. Do any is to produce babies? values support discrimination on the basis 6. Critically assess Corvino’s response to the of sexual orientation? contention that homosexuality is wrong 8. Corvino writes that reasonable people might because is harmful. What about the argument disagree about the appropriateness of laws that it contradicts religion? Are there moral prohibiting discrimination on the basis of sex- arguments against homosexuality that Cor- ual orientation. What might be said in favor of vino has overlooked or failed to do justice to? such laws? What might be said against them? If a private employer believes that homosexu- 9. Do companies have a moral obligation to ality is immoral, is it wrong of the employer discourage anti-gay sentiment among their to choose not to hire homosexuals? employees? If so, how might they do so?

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