6 Affirmative Action
What’s good for the goose is good for the gander.
When confronted with the suggestion that there is a second sexism, the first reaction of many people who had not previously contemplated that possibility is to suppose that the second sexism is constituted by affirmative action efforts favoring women. They imagine the complaint to be that males are discriminated against by those affirmative action policies and practices that aim to benefit women. Yet, as we have seen, affirmative action for females was not included in the catalogue of discrimination against males that I have presented.
In turning to affirmative action now, and devoting a chapter to discussing it, my aim is not primarily to add another form of discrimination to those already discussed. Instead my goal is to evaluate whether affirmative action is an appropriate response to sexism, whether of the first or second kind. Indeed, considering affirmative action as a response to the second sexism sheds interesting light on the morality of affirmative action policies and practices that favor females. My conclusion will indeed be that affirmative action in most but not all its forms is immoral and sometimes discriminates unfairly against males. Many feminist and other defenders of affirmative action for females will dislike this conclusion. The good news for them is that I similarly think that affirmative action is an inappropriate response to the second sexism and that such affirmative action would sometimes unfairly discriminate against females.
Affirmative action was first conceived as a policy to favor disadvantaged racial groups. However, females from non-disadvantaged racial groups have also been the beneficiaries on the grounds that they are disadvantaged as women. While the issues and arguments relevant to race-based and sex-based affirmative action overlap considerably, they are not identical. Most important are the relative degrees of disadvantage. In countries such as the United States and South Africa, where affirmative action policies have been pursued, females of non-disadvantaged racial groups are considerably less disadvantaged than either males or females of disadvantaged racial goups. Indeed, as we have seen, the males of disadvantaged racial groups are often worse off than the females of the advantaged and often also the disadvantaged groups.
It is worth dwelling on this for a moment, because there is something deeply troubling about giving the same preferential treatment to females from privileged racial groups as to members of disadvantaged racial groups.1 Members of racially disadvantaged groups often (but not always) live in deprived or even squalid social conditions, experiencing the attendant evils of such conditions. They often attend poor and inadequate schools and their parents may be unable to assist them with their homework or to provide the academic support that complements the formal education obtained in the classroom. Females from privileged racial groups, by contrast, usually live in comfortable and sometimes luxurious conditions, attend schools at least as good as their brothers and have parents who can provide the academic support and enrichment that promotes their capacity. These differences explain why, once formal obstacles to equality of opportunity are removed, females from advantaged racial groups are more likely to succeed than most of those from disadvantaged racial groups.
Obviously my focus in this chapter will be on sex-based rather than race-based affirmative action.2 Sex-based affirmative action has been said to be necessary to correct three purported problems. First, there are disproportionately few females in various desirable professions and disciplines (such as engineering and mathematics). Second, even where women are better represented at the lower levels in some professional areas, they are under-represented at the senior levels. This is true in the most senior corporate positions, in academia and in parliaments throughout the free world. This is attributed to a “glass ceiling” — an invisible but purportedly real barrier to their rising, in significant numbers, to positions of authority. Third, women are, on average, paid less than men.
If the reasons for the first two disparities were, as was once the case, that women were formally prohibited from such pursuits or their numbers were restricted by quotas, then the response would be not affirmative action but rather the abolition of the formal restrictions. Thus affirmative action is a policy that is recommended when females are formally allowed to participate equally and yet their actual participation falls short of their proportion of the population.
Some action to eliminate or at least reduce the gender pay gap has also been proposed. Although this is not typically referred to as “affirmative action,” it is nonetheless a form of affirmative action. Because women’s lower pay is typically a function of the former two phenomena, the solution is usually thought to be via a response to them. For this reason, my focus will be on affirmative action as a response to the under-representation of women, both in certain professions and at senior levels. However, I shall also consider the application of this to the pay gap.
Both the under-representation of women in specific areas or positions and the pay gap give rise to two broad kinds of justification for affirmative action. The first is an argument about rectificatory justice. The idea is that although women may not be formally discriminated against any longer, they once were. It is also said that their under-representation in certain areas, and their lower pay, are an indication that they are being discriminated against in more subtle ways and that affirmative action is the way to rectify this. The second kind of argument is consequentialist. According to this argument, increasing the number of women in the relevant positions and increasing women’s pay will have beneficial effects. Thus, irrespective of whether the current under-representation and lower pay are products of discrimination, we should employ measures to increase the number of females in those endeavors in which they are a minority and to reduce the pay gap. I shall examine each of these rationales in turn, but first it will be helpful to clarify what is meant by “affirmative action.”
The phrase “affirmative action” is ambiguous. It can refer to a variety of different kinds of policy or practice. Its mildest form is what we might call “equal opportunity affirmative action.” This form of affirmative action involves no preferential treatment. Women are not favored over men. Instead equal opportunity affirmative action aims to ensure that opportunities genuinely are equal and that any hidden and subtle obstacles to equality are exposed and removed.
One such impediment, it is said, results from traditional notions of what constitutes “being qualified.” Defenders of affirmative action often argue that not only are these prejudicial to women, but they are also contestable. Therefore, they argue, we need to rethink what it means to be “qualified.”
A call for accountability in the standards that are set is entirely reasonable. However, those with competing views of what constitutes being (equally) qualified will have to justify their respective positions independently of whether a given conception yields the outcome they want to have produced. That is to say, the criteria for being qualified must be assessed on their own terms and not in terms of whether employing them leads to appointments of more women or more men. The question of who is qualified is distinct from the question how many people of each sex are qualified.
Even when the criteria of “being qualified” are assessed on their own terms (and not in terms of the gender outcome), there may be disagreement about what the appropriate criteria are.3 There may also be disagreement about which impediments to equal pay are unfair. For example, it has been suggested that women, particularly those with children, want to have shorter commuting times to work than do men. This, it is said, limits the range of jobs available to women, which in turn “potentially leads to the crowding of women into those jobs available locally,” which depresses women’s wages.4 Some argue that this is an unfair impediment to wage equality because women bear the bulk of child-rearing responsibilities and it is thus unfair to them if they are paid less because, as a result of their child rearing, they are constrained to take only jobs with a shorter commute. Others, however, argue that those willing to commute further will have a wider range of job options, including ones that pay more, and that it is not unfair if those willing to commute further are paid more.
Although there will be such disagreements, everybody would agree that any hidden barriers there might be to fairness should be removed. The disagreement is about which barriers are unfair — or, at least, sufficiently unfair that something should be done about them. Opponents of other forms of affirmative action are accordingly untroubled by equal opportunity affirmative action.5
All forms of affirmative action other than the equal opportunity form involve some kind of preference based on a person’s sex. The preference in all (or almost all) actual cases is in favor of females. These forms of affirmative action are distinguished from one another on the basis of how much preference they accord women. Sometimes a person’s sex is used as a tie-breaker between two candidates who are otherwise equally qualified. Sometimes a person’s sex is accorded greater weight. And sometimes certain positions, or a proportion of positions, are set aside for women, as they are in (minimum) quotas. The more weight that is attached to a person’s sex in admissions or hiring decisions, the more controversial the form of affirmative action. While all these forms of preference affirmative action apply most directly to the under-representation issue, they indirectly also affect the wage gap. This is because increasing the representation of women in certain positions would also reduce the wage gap.
Rectifying Injustice
There are two kinds of arguments that justify affirmative action policies on the grounds that they are necessary for rectifying injustice. One says that the injustices in need of rectifying are the product of past discrimination, while the other claims that the relevant injustices are the product of current, ongoing discrimination.
The past discrimination argument
Injustices should be rectified. The appropriate way to do this is to compensate those particular people who suffered the injustice (and to punish those who perpetrated it). An injustice done to a person is rectified by compensating that individual, rather than by compensating other individuals, even if those other individuals share some characteristic with the victim of injustice. This is true even if the shared characteristic was the basis for the discrimination against the individual who suffered the injustice. Herein lies the primary problem with affirmative action policies that appeal to the past discrimination argument and that grant preference to people on the basis of sex. They typically bestow benefits on some members of a group in response to past discrimination against other members of that group. That does not rectify injustice. Instead it recreates it.6
Those who think otherwise might do well to consider the application of the past discrimination argument to past instances of the second sexism. For example, given that males have borne the brunt of conscription in the past, should we rectify that injustice by conscripting only — or at least disproportionately many — women in those countries that retain conscription? Should those countries that do not currently conscript resolve to conscript only or disproportionately many women when conscription is next necessary? Some might answer these questions negatively because they think that this will compromise military effectiveness. I have responded to those arguments already (in Chapter 4), but the crucial issue here is that those people most likely to be impressed by the military effectiveness argument against conscripting only women are also those least likely to defend affirmative action policies at all. Those most likely to defend affirmative action for women are least likely to be impressed by the military effectiveness argument because they typically think that females could function as effectively or nearly as effectively as male soldiers. Those defending this view need to explain why past discrimination against women requires preferences for women today, whereas past discrimination against men does not require favoring men (by targeting more women than men for conscription). After all, women are even more under-represented in conscript forces than they are in those desirable positions for which defenders of sex-based affirmative action seek preferences for females.
It is true that defenders of affirmative action do not propose that women be forced into other positions. However, that is not a response to my thought experiment. Although men were not previously forced into those desirable positions to which defenders of affirmative action now want women to have preferred access, they were forced into the military. Thus the purported way to rectify the injustice resultant from that discrimination is to divert that burden to the opposite sex, which involves forcing women.
To clarify, I am not seriously recommending that women be conscripted instead of men or at greater rates than men. I raise the case to show how preposterous it is to think that one is rectifying an injustice caused by past discrimination against people of one sex by favoring a subsequent generation of people of the same sex. If conscription discriminated against men in 1916, we do not rectify that injustice by conscripting women instead of other men in 2016. The same is true in cases of discrimination against women. If women were excluded from professional positions in the past, we do not rectify that injustice by favoring other women today. Although women today share with the earlier victims of (anti-female) sexism the attribute of being female, we do not rectify the earlier injustice by favoring different individual women — women who were not the victims of the past sex discrimination. Put another way, injustices are rectified at the level of individuals rather than groups. Rectifying the injustices done to many members of a group has aggregative results for the group, but the rectification must be directed to those individuals who were the victims of injustice.
Of course, it is not always possible to rectify injustices. For example, most victims and perpetrators of past discrimination are now no longer alive and thus they cannot, respectively, be compensated or punished. However, when it is not possible to rectify injustice caused by past discrimination there is no point pretending that it can still be rectified.
Now it might be argued that past discrimination against members of a group can have lingering effects that impact on subsequent members of that group. In this way members of a group can be the victims of discrimination that took place much earlier, even before they were born. I do not think that preferential (as opposed to equal opportunity) affirmative action is an appropriate response even to these ongoing effects of past discrimination, but I shall not here say why this is the case. This is because defenders of sex-based affirmative action cannot appeal to the lingering effects of past discrimination in the way that defenders of race-based affirmative action can do so. This is because of the different kinds of discrimination to which women and blacks respectively were subjected. The kinds of discrimination against women in the past have not had the enduring effect on the opportunities of women today than much past discrimination against disadvantaged racial groups has had on most (but not all) current members of those groups. Many of those today who belong to racial groups that were discriminated against in the past continue to suffer severe ill-effects of that past discrimination. They often live deprived lives. The same is not true of females (from advantaged groups). The lingering effects of past discrimination are to be distinguished from lingering (present) discrimination. Until now I have been speaking about the former. I now turn to the latter.
The present discrimination argument
When the past discrimination argument fails, some defenders of affirmative action might wish to appeal to what I call the present discrimination argument. According to this argument, women are still being unfairly discriminated against, and an affirmative action policy that favors females is the way to rectify this. The evidence offered for the claim that women are still discriminated against is sometimes no more than the observation that they are under-represented in the sorts of positions mentioned earlier and that they earn less than men. Women, it is said, are about half of the adult population, and thus would, in the absence of discrimination, fill about half of these positions.
However, the inference from unequal outcomes to unfair discrimination is a problematic one. If the inference were a valid one then we could conclude that men are being unfairly discriminated against when they constitute more than half of those imprisoned or executed, or more than half of those who drop out of school or who die on the job. In these cases (almost) nobody leaps to the conclusion that males are unfairly discriminated against, even though males significantly exceed half of those whom these fates befall. While discrimination may account for some of the difference, as we saw in Chapter 4, much of the difference is attributable to other factors. Men commit more crimes, for example.
Similar caution is necessary when there are disproportionately few women in desirable positions or when women earn less than men. Discrimination against women is not the only explanation. Even to the extent that discrimination is the explanation, affirmative action may not be the way to rectify it. To show why this is so it will be helpful to distinguish four possible explanations for the fact that women have less than equal participation in various employment sectors and earn less:
(1) discrimination in those specific sectors where women are under-represented;
(2) discriminatory features of the wider society;
(3) non-discriminatory sex differences;
(4) some combination of the above.
Among the items to which the first explanation refers is implicit bias in hiring and promotion decisions. The claim here is that even those who are self-consciously committed to gender equality may have unconscious biases, which operate to the detriment of women. Females may be viewed, subconsciously, as less capable, and this leads to fewer of them being appointed. Another item to which the first explanation refers is the so-called “hostile environment.” The idea here is that certain professional and other environments are hostile or at least unfriendly to women, thereby making those environments less attractive or unattractive to women. For example, they may have a very “masculine” ethos or require long or inflexible hours,7 which do not fit well with the domestic duties that women disproportionately bear.
This last example connects the first explanation with the second. This is because, it is argued, the fact that women still bear the bulk of domestic duties is indicative of broader societal discrimination. This, however, is not the only way in which broader social discrimination is said to contribute to there being disproportionately few women in the sorts of positions under discussion. For example, it is often said that girls are raised to think that they are less suited to particular kinds of positions and thus they are less motivated to pursue them.
The third explanation claims that there are average differences between males and females that are not the product of discrimination and which do explain why males are found in disproportionately large numbers (and women in disproportionately small numbers) in some positions, and why men earn more on average. It is said, for example, that males, on average, are more assertive than women, that they respond more positively to competitive situations and display more dominance-seeking.8 Men, it is said, are also inclined to take more risks, including professional risks,9 and are less nurturing and empathic.10
These differences are said to explain why males are more likely to enter higher-paying professions and to advance up various hierarchies. Those who are more assertive, who thrive on competition and who seek status are more likely to seek (and win) political office, to rise up corporate and other ladders and to enter and succeed in fields that require drive. Risk-taking has a toll on those who lose, but it favors those who succeed. Insofar as these sex differences are the product of biology they do not constitute discrimination. They might be regarded as unfair in just the way that being born with or without some trait might be viewed as unfair — that is, losing out in the natural rather than the social lottery — but they cannot be regarded as unfair discrimination. Unfair discrimination may ensue, on some views, if due regard is not given for the unfairness of the natural lottery.
The fourth explanation of the under-representation of women in professions and positions of power, and derivatively their lower pay, is a combination of the previous three. It claims that sex differences play some part, but that discrimination does, too. This fourth explanation is the most plausible one. First, as I argued in Chapter 3, it is highly unlikely that human psychology is unaffected by human biology, and that all psychological traits, unlike physical traits, are equally distributed across both sexes. Those who think that psychological attributes are equally distributed need to explain why the over-representation of males in desirable positions is fully attributable to discrimination against females, but the over-representation of males in undesirable positions is not at all attributable to discrimination against males. Indeed, while this seems to be a position that some feminists do hold, they do not explain how it could be the case. They blame men for the fact that there are disproportionately few women in leadership positions, and they blame men for constituting the majority of those incarcerated. Men are at fault whether they are winning or losing.
Contrary to this view, (at least some) evolutionary psychologists claim that the greater successes and greater failures of men may well be related. Ambition, competitiveness, a desire for status and risk-taking can all contribute to a greater number of males at the extremes. Endorsement of this claim does not imply acceptance of the “costs-of-dominance” argument discussed in Chapter 5. Even if the greater successes and failures of males are related, it does not follow that the failures are the costs of dominance. This is because those who pay the costs are not those who are dominant, even if they happen to be members of the same sex.
The greater extremes characteristic of males might also be partially explained by the hypothesis that the distribution of some cognitive capacities, for example, is flatter among males than it is among females. That is to say, according to this hypothesis there are more males than females at the extremes of some cognitive capacities. Recollect, here, Helena Cronin’s image, mentioned earlier, of there being, among males, both more “Nobels” and more “dumbbells.”
These considerations suggest that the first and second explanations are probably not the sole explanations of the under-representation of women. It is not clear whether anybody holds the view that the third explanation fully accounts for the under-representation of women. Those who think that sex differences play a role do not typically think that biology explains the full extent of women’s under-representation.11 It is very likely, as I indicated in Chapter 3, that any biological differences between the sexes would be recognized and amplified by society. Thus social forces very probably play some role over and above any biological differences.
Among those who accept the fourth explanation, the disagreement is about how much of the difference is explained by biology and how much by social forces. The question of who is right is immensely difficult to determine with any precision. That, however, is partly why affirmative action is such a poor mechanism for dealing with whatever component is the product of discrimination. If the aim of affirmative action is to correct for discrimination and we do not know how much discrimination is taking place, we cannot tell how much of a corrective is required. Some feminists may suggest that we should nonetheless impose some counterbalance to whatever discrimination there is, even if we run the risk of overcompensating. However, there are a few problems with this suggestion.
Overcompensating would result in unfair discrimination in favor of some females and against some males. While not compensating at all would, given implicit bias against females, result in unfair discrimination in favor of some men and against some women, the difference is that affirmative action is an intentional policy favoring some over others. Faced with a choice, a policy of trying as hard as possible to avoid discrimination (even if one does so imperfectly) is arguably better than a policy of specifically trying to favor some people. The latter is more corrupting and more open to abuse. In other words, trying to give preference is more dangerous than trying not to give preference. The better one gets at not preferring, the closer one gets to fairness. By contrast, in the case of preferring, one gets closer to fairness to the extent that one is compensating for implicit bias, but then one gets further and further from fairness as one continues to give preference. Since one cannot accurately determine the extent of bias, the danger is that one will not know when one is becoming less and less fair.
Moreover, there is reason to think that the pressure in favor of preferential policies and practices will cause an excess of preference. As long as there are relatively few women in a given profession and the current concern for the position of women continues, there will be ongoing political incentives to attain a better balance of the sexes even if the residual difference is not a product of discrimination. Indeed that is exactly what those who accept the first and second explanations alone will be advocating. No affirmative action efforts will satisfy such people until any discrepancy is eliminated.12
Those who deny that affirmative action is the more dangerous option should consider whether they would recommend affirmative action to counter discrimination against men. Consider, for example, an affirmative action policy applicable to judges making custody decisions following divorce. Such a policy would be problematic because it would be inappropriate for judges consciously to favor fathers, even though we know that fathers are currently the victims of implicit bias in custody decisions. It is preferable for judges to work to overcome their biases rather than to replace them with new ones.
So far my focus has been on affirmative action as a corrective for direct, albeit unintentional and unconscious discrimination. Some people think that such discrimination explains both why women are under-represented in some employment sectors and why they are paid less. The evidence, however, does not support this (any more13). Consider the wage gap, for example. Once one controls for various crucial variables, one finds that the wage gap is negligible, if it exists at all.14 The variables include how many hours people work (full-time work pays more than part-time work, and overtime is rewarded), how risky and unpleasant the work is and whether one is willing to commute longer distance to higher-paid positions.15 Indeed, there is thus something misleading about reference to the pay gap. It is not that women are being paid less for doing the same jobs as men. They are doing different jobs.
Consider next the so-called glass ceiling. Several female clerks at one Fortune 500 company sued the company. They noted that the female proportion of staff promoted was less than the female proportion of the entry-level positions, and they alleged discrimination on these grounds. The company, mystified by the accusation, approached an independent consulting firm to conduct a study of its personnel practices. The study found that discrimination did not explain the imbalance.16 For example, males had applied for promotion at a much greater rate than had females. Moreover, a higher proportion of women than men who applied were successful.17 Roughly equal numbers of males and females were asked whether they were interested in promotion. However, a much larger proportion of the males who were asked responded affirmatively.18 Men were also willing to give up more to obtain a promotion. For example, they were more willing to have a less than optimal shift assignment or to accept a transfer.19
There is also some evidence that gender imbalances among university academic staff are not attributable to discrimination. A study of Canadian universities showed that while women were under-represented, and especially at the higher levels, this was not a consequence of discrimination against females.20 The study looked at the average age of people in each of the academic ranks and calculated when each cohort would have been appointed. This was then compared to the number of women earning PhDs immediately before that. It was found that “figures from the 1960s are consistent with there being a modest degree of discrimination against women during the hiring process at this time.”21 However, it was also found that “for all other ranks, the data are consistent with there being significant discrimination in favor of women and against men.”22 Indeed, “the discrepancy… is much larger than the reverse discrepancy at the rank of full professor.”23
There are also interesting differences between academic disciplines, with women even more under-represented in some disciplines. It is implausible to think that discrimination in university admissions explains why women are an especially small minority of engineering students, for example. Are we really to believe that while medical schools are now unbiased in their admissions, because women now constitute a majority of medical students, engineering schools are still pervaded by prejudice?24 It is much more likely that females are choosing medicine over engineering. And if that is not the case, are we to conclude that medical schools are now biased against males, given that they now constitute fewer than half of all medical students in some countries?
Denying that these phenomena are explained primarily by proximate discrimination does not mean that discriminatory features of the wider society are not at play. Perhaps gender roles and other aspects of socialization make girls and boys more or less likely to enter specific professions, to be more or less inclined to seek promotion, to opt for part-time employment. However, an affirmative action policy that grants preferential treatment to women is even harder to justify if one is attempting to correct for this upstream discrimination.
To see why this is so, consider the following. After divorce, fathers gain custody of children much less often than mothers and this is not simply because of implicit bias of judges. Men request custody less often. Perhaps it is even the case that fathers are less often the better custodial parent. Even if one thinks that biology is part of the explanation why males seek and are suited to custody less often, gender roles and other social factors also play a role. However, it does not follow that we should implement an affirmative action policy that aims to attain the levels of paternal custody that would have existed in the absence of those roles and factors. In deciding who gets custody, judges need to consider which parent or parents want custody and whether one parent is better suited to having custody. Custody decisions should not be made on the basis of what the paternal custody proportions would have been if fathers had been reared differently and thus made them want custody and be suited to it more often. Indeed, it seems repugnant consciously to aim at awarding custody to fathers more often even though one knew that fewer men wanted custody and that fewer would be the better custodial parent. This is true even if one knew that in the absence of socially reinforced gender roles men would have accounted for a greater proportion than they now do of parents wanting and worthy of custody.
It is similarly inappropriate to favor women in hiring or promotion merely because, in the absence of socially reinforced gender roles, more women would have chosen to become engineers or pilots, for example. In deciding who should gain custody, each parent’s relative interest in and suitability to serve as the custodial parent is central. In deciding who should be appointed or hired, a person’s capacity to do the job is central. That there are fewer female engineers and pilots from whom to choose does not mean that those hiring engineers and pilots should put any weight on a woman’s sex in deciding whether to hire her. Doing so would put proportionately less weight on attributes that are relevant to how well she will do the job.
The same problem would arise for affirmative action policies that favor males in traditionally female professions. Imagine, for example, that a pool of applicants for a pre-primary school teacher position is 95% female. One can try to broaden the pool such that the proportion of males in the pool increases. However, if males are uninterested in applying, even if this is a product of socially contrived gender roles, then one might still have only 5% of the applicants being male. If one then favors those who constitute that 5% just because they are male, one will end up hiring some males who are weaker than the females one would otherwise have appointed. The more weight one attaches to being male, the relatively less other attributes will count. Thus, the stronger the form of affirmative action, the weaker, on average, will be those selected from the preferred sex. This is true if the favored sex is male, but it is equally true if the favored sex is female.
This is not to say that men cannot make good pre-primary school teachers (or that women cannot make good engineers or pilots). Instead it is to say that in hiring decisions, a person’s sex is (generally) not relevant.25 If it is made a consideration, then other considerations invariably count proportionately less and that would lead to the appointment of people who are less qualified for the position.
The underlying issue here is how we respond to the choices people do make, even if those choices would have been different if conditions had been different. Now, sometimes the conditions under which people choose are obviously such that their choices cannot be said to be free. If Dick Turpin offers you the choice of “your money or your life” and you choose to part with your money, your choice is not free. That, however, is not the kind of case about which we are speaking. Such cases are easy and we know what to do about such injustices — remove the threat.
We are speaking about more difficult cases — cases where one acts on the basis of preferences or attributes formed at least in part by social influences, but with which one identifies. The preferences are yours and you choose freely in accordance with them. If there are background injustices in the influences that lead to the formation of the preferences, then those injustices must be rectified upstream, where they occur. They cannot be rectified by overriding or ignoring people’s choices or by favoring the very members of a group who were immune to the upstream influences.
Put another way, you should not be favored by how many other people of your sex have chosen as you did. Thus, if you are a woman who chose to become an engineer or a man who chose to become a pre-primary teacher, whether you get the job should not depend at all on the fact that your choice was relatively uncommon for somebody of your sex.26 Similarly, if you are a man who chose to become an engineer or a woman who chose to become a pre-primary teacher, whether you get a particular job should not depend at all on the fact that most other people who made that choice are of the same sex.
Moreover, even if we thought it appropriate to correct for disadvantages caused by socially influenced preferences, it would be impossible to do so with any accuracy. So many of our preferences fall into this category and it is possible to know just how much better off each one of us would have been had our preferences been influenced in myriad alternative ways.
According to the view I have been presenting, the differing preferences of males and females, even if socially influenced, are not appropriate grounds for giving preference to either females or males. This does not mean, of course, that other things should not be done about background discrimination that affects the formation of preferences. We should take steps to avoid forcing girls and boys into gender roles. We should avoid characterizing certain jobs as either male or female. However, none of these sorts of intervention amount to giving preference to either sex. They are instances of equal opportunity affirmative action rather than preference affirmative action and are thus not problematic.
However, we should not assume that disproportionate representation of one or other sex in specific jobs or activities implies that societal discrimination is still at play. Natural differences might influence choices. Even when they do not, men and women might gravitate at different times and in different places at different rates into various positions and activities.
The present discrimination version of the rectification argument, like the past discrimination version, is much more problematic than its advocates realize. Taking note of the application of these arguments to the second sexism, as I have done, may highlight those difficulties that defenders of sex-based preference affirmative action might otherwise not see. Indeed, the implications of the second sexism for affirmative action might explain, at least in part, why some people are so reluctant to admit that there is a second sexism.
There are two kinds of arguments that justify affirmative action policies on the grounds that they are necessary for rectifying injustice. One says that the injustices in need of rectifying are the product of past discrimination, while the other claims that the relevant injustices are the product of current, ongoing discrimination.
The past discrimination argument
Injustices should be rectified. The appropriate way to do this is to compensate those particular people who suffered the injustice (and to punish those who perpetrated it). An injustice done to a person is rectified by compensating that individual, rather than by compensating other individuals, even if those other individuals share some characteristic with the victim of injustice. This is true even if the shared characteristic was the basis for the discrimination against the individual who suffered the injustice. Herein lies the primary problem with affirmative action policies that appeal to the past discrimination argument and that grant preference to people on the basis of sex. They typically bestow benefits on some members of a group in response to past discrimination against other members of that group. That does not rectify injustice. Instead it recreates it.6
Those who think otherwise might do well to consider the application of the past discrimination argument to past instances of the second sexism. For example, given that males have borne the brunt of conscription in the past, should we rectify that injustice by conscripting only — or at least disproportionately many — women in those countries that retain conscription? Should those countries that do not currently conscript resolve to conscript only or disproportionately many women when conscription is next necessary? Some might answer these questions negatively because they think that this will compromise military effectiveness. I have responded to those arguments already (in Chapter 4), but the crucial issue here is that those people most likely to be impressed by the military effectiveness argument against conscripting only women are also those least likely to defend affirmative action policies at all. Those most likely to defend affirmative action for women are least likely to be impressed by the military effectiveness argument because they typically think that females could function as effectively or nearly as effectively as male soldiers. Those defending this view need to explain why past discrimination against women requires preferences for women today, whereas past discrimination against men does not require favoring men (by targeting more women than men for conscription). After all, women are even more under-represented in conscript forces than they are in those desirable positions for which defenders of sex-based affirmative action seek preferences for females.
It is true that defenders of affirmative action do not propose that women be forced into other positions. However, that is not a response to my thought experiment. Although men were not previously forced into those desirable positions to which defenders of affirmative action now want women to have preferred access, they were forced into the military. Thus the purported way to rectify the injustice resultant from that discrimination is to divert that burden to the opposite sex, which involves forcing women.
To clarify, I am not seriously recommending that women be conscripted instead of men or at greater rates than men. I raise the case to show how preposterous it is to think that one is rectifying an injustice caused by past discrimination against people of one sex by favoring a subsequent generation of people of the same sex. If conscription discriminated against men in 1916, we do not rectify that injustice by conscripting women instead of other men in 2016. The same is true in cases of discrimination against women. If women were excluded from professional positions in the past, we do not rectify that injustice by favoring other women today. Although women today share with the earlier victims of (anti-female) sexism the attribute of being female, we do not rectify the earlier injustice by favoring different individual women — women who were not the victims of the past sex discrimination. Put another way, injustices are rectified at the level of individuals rather than groups. Rectifying the injustices done to many members of a group has aggregative results for the group, but the rectification must be directed to those individuals who were the victims of injustice.
Of course, it is not always possible to rectify injustices. For example, most victims and perpetrators of past discrimination are now no longer alive and thus they cannot, respectively, be compensated or punished. However, when it is not possible to rectify injustice caused by past discrimination there is no point pretending that it can still be rectified.
Now it might be argued that past discrimination against members of a group can have lingering effects that impact on subsequent members of that group. In this way members of a group can be the victims of discrimination that took place much earlier, even before they were born. I do not think that preferential (as opposed to equal opportunity) affirmative action is an appropriate response even to these ongoing effects of past discrimination, but I shall not here say why this is the case. This is because defenders of sex-based affirmative action cannot appeal to the lingering effects of past discrimination in the way that defenders of race-based affirmative action can do so. This is because of the different kinds of discrimination to which women and blacks respectively were subjected. The kinds of discrimination against women in the past have not had the enduring effect on the opportunities of women today than much past discrimination against disadvantaged racial groups has had on most (but not all) current members of those groups. Many of those today who belong to racial groups that were discriminated against in the past continue to suffer severe ill-effects of that past discrimination. They often live deprived lives. The same is not true of females (from advantaged groups). The lingering effects of past discrimination are to be distinguished from lingering (present) discrimination. Until now I have been speaking about the former. I now turn to the latter.
The present discrimination argument
When the past discrimination argument fails, some defenders of affirmative action might wish to appeal to what I call the present discrimination argument. According to this argument, women are still being unfairly discriminated against, and an affirmative action policy that favors females is the way to rectify this. The evidence offered for the claim that women are still discriminated against is sometimes no more than the observation that they are under-represented in the sorts of positions mentioned earlier and that they earn less than men. Women, it is said, are about half of the adult population, and thus would, in the absence of discrimination, fill about half of these positions.
However, the inference from unequal outcomes to unfair discrimination is a problematic one. If the inference were a valid one then we could conclude that men are being unfairly discriminated against when they constitute more than half of those imprisoned or executed, or more than half of those who drop out of school or who die on the job. In these cases (almost) nobody leaps to the conclusion that males are unfairly discriminated against, even though males significantly exceed half of those whom these fates befall. While discrimination may account for some of the difference, as we saw in Chapter 4, much of the difference is attributable to other factors. Men commit more crimes, for example.
Similar caution is necessary when there are disproportionately few women in desirable positions or when women earn less than men. Discrimination against women is not the only explanation. Even to the extent that discrimination is the explanation, affirmative action may not be the way to rectify it. To show why this is so it will be helpful to distinguish four possible explanations for the fact that women have less than equal participation in various employment sectors and earn less:
(1) discrimination in those specific sectors where women are under-represented;
(2) discriminatory features of the wider society;
(3) non-discriminatory sex differences;
(4) some combination of the above.
Among the items to which the first explanation refers is implicit bias in hiring and promotion decisions. The claim here is that even those who are self-consciously committed to gender equality may have unconscious biases, which operate to the detriment of women. Females may be viewed, subconsciously, as less capable, and this leads to fewer of them being appointed. Another item to which the first explanation refers is the so-called “hostile environment.” The idea here is that certain professional and other environments are hostile or at least unfriendly to women, thereby making those environments less attractive or unattractive to women. For example, they may have a very “masculine” ethos or require long or inflexible hours,7 which do not fit well with the domestic duties that women disproportionately bear.
This last example connects the first explanation with the second. This is because, it is argued, the fact that women still bear the bulk of domestic duties is indicative of broader societal discrimination. This, however, is not the only way in which broader social discrimination is said to contribute to there being disproportionately few women in the sorts of positions under discussion. For example, it is often said that girls are raised to think that they are less suited to particular kinds of positions and thus they are less motivated to pursue them.
The third explanation claims that there are average differences between males and females that are not the product of discrimination and which do explain why males are found in disproportionately large numbers (and women in disproportionately small numbers) in some positions, and why men earn more on average. It is said, for example, that males, on average, are more assertive than women, that they respond more positively to competitive situations and display more dominance-seeking.8 Men, it is said, are also inclined to take more risks, including professional risks,9 and are less nurturing and empathic.10
These differences are said to explain why males are more likely to enter higher-paying professions and to advance up various hierarchies. Those who are more assertive, who thrive on competition and who seek status are more likely to seek (and win) political office, to rise up corporate and other ladders and to enter and succeed in fields that require drive. Risk-taking has a toll on those who lose, but it favors those who succeed. Insofar as these sex differences are the product of biology they do not constitute discrimination. They might be regarded as unfair in just the way that being born with or without some trait might be viewed as unfair — that is, losing out in the natural rather than the social lottery — but they cannot be regarded as unfair discrimination. Unfair discrimination may ensue, on some views, if due regard is not given for the unfairness of the natural lottery.
The fourth explanation of the under-representation of women in professions and positions of power, and derivatively their lower pay, is a combination of the previous three. It claims that sex differences play some part, but that discrimination does, too. This fourth explanation is the most plausible one. First, as I argued in Chapter 3, it is highly unlikely that human psychology is unaffected by human biology, and that all psychological traits, unlike physical traits, are equally distributed across both sexes. Those who think that psychological attributes are equally distributed need to explain why the over-representation of males in desirable positions is fully attributable to discrimination against females, but the over-representation of males in undesirable positions is not at all attributable to discrimination against males. Indeed, while this seems to be a position that some feminists do hold, they do not explain how it could be the case. They blame men for the fact that there are disproportionately few women in leadership positions, and they blame men for constituting the majority of those incarcerated. Men are at fault whether they are winning or losing.
Contrary to this view, (at least some) evolutionary psychologists claim that the greater successes and greater failures of men may well be related. Ambition, competitiveness, a desire for status and risk-taking can all contribute to a greater number of males at the extremes. Endorsement of this claim does not imply acceptance of the “costs-of-dominance” argument discussed in Chapter 5. Even if the greater successes and failures of males are related, it does not follow that the failures are the costs of dominance. This is because those who pay the costs are not those who are dominant, even if they happen to be members of the same sex.
The greater extremes characteristic of males might also be partially explained by the hypothesis that the distribution of some cognitive capacities, for example, is flatter among males than it is among females. That is to say, according to this hypothesis there are more males than females at the extremes of some cognitive capacities. Recollect, here, Helena Cronin’s image, mentioned earlier, of there being, among males, both more “Nobels” and more “dumbbells.”
These considerations suggest that the first and second explanations are probably not the sole explanations of the under-representation of women. It is not clear whether anybody holds the view that the third explanation fully accounts for the under-representation of women. Those who think that sex differences play a role do not typically think that biology explains the full extent of women’s under-representation.11 It is very likely, as I indicated in Chapter 3, that any biological differences between the sexes would be recognized and amplified by society. Thus social forces very probably play some role over and above any biological differences.
Among those who accept the fourth explanation, the disagreement is about how much of the difference is explained by biology and how much by social forces. The question of who is right is immensely difficult to determine with any precision. That, however, is partly why affirmative action is such a poor mechanism for dealing with whatever component is the product of discrimination. If the aim of affirmative action is to correct for discrimination and we do not know how much discrimination is taking place, we cannot tell how much of a corrective is required. Some feminists may suggest that we should nonetheless impose some counterbalance to whatever discrimination there is, even if we run the risk of overcompensating. However, there are a few problems with this suggestion.
Overcompensating would result in unfair discrimination in favor of some females and against some males. While not compensating at all would, given implicit bias against females, result in unfair discrimination in favor of some men and against some women, the difference is that affirmative action is an intentional policy favoring some over others. Faced with a choice, a policy of trying as hard as possible to avoid discrimination (even if one does so imperfectly) is arguably better than a policy of specifically trying to favor some people. The latter is more corrupting and more open to abuse. In other words, trying to give preference is more dangerous than trying not to give preference. The better one gets at not preferring, the closer one gets to fairness. By contrast, in the case of preferring, one gets closer to fairness to the extent that one is compensating for implicit bias, but then one gets further and further from fairness as one continues to give preference. Since one cannot accurately determine the extent of bias, the danger is that one will not know when one is becoming less and less fair.
Moreover, there is reason to think that the pressure in favor of preferential policies and practices will cause an excess of preference. As long as there are relatively few women in a given profession and the current concern for the position of women continues, there will be ongoing political incentives to attain a better balance of the sexes even if the residual difference is not a product of discrimination. Indeed that is exactly what those who accept the first and second explanations alone will be advocating. No affirmative action efforts will satisfy such people until any discrepancy is eliminated.12
Those who deny that affirmative action is the more dangerous option should consider whether they would recommend affirmative action to counter discrimination against men. Consider, for example, an affirmative action policy applicable to judges making custody decisions following divorce. Such a policy would be problematic because it would be inappropriate for judges consciously to favor fathers, even though we know that fathers are currently the victims of implicit bias in custody decisions. It is preferable for judges to work to overcome their biases rather than to replace them with new ones.
So far my focus has been on affirmative action as a corrective for direct, albeit unintentional and unconscious discrimination. Some people think that such discrimination explains both why women are under-represented in some employment sectors and why they are paid less. The evidence, however, does not support this (any more13). Consider the wage gap, for example. Once one controls for various crucial variables, one finds that the wage gap is negligible, if it exists at all.14 The variables include how many hours people work (full-time work pays more than part-time work, and overtime is rewarded), how risky and unpleasant the work is and whether one is willing to commute longer distance to higher-paid positions.15 Indeed, there is thus something misleading about reference to the pay gap. It is not that women are being paid less for doing the same jobs as men. They are doing different jobs.
Consider next the so-called glass ceiling. Several female clerks at one Fortune 500 company sued the company. They noted that the female proportion of staff promoted was less than the female proportion of the entry-level positions, and they alleged discrimination on these grounds. The company, mystified by the accusation, approached an independent consulting firm to conduct a study of its personnel practices. The study found that discrimination did not explain the imbalance.16 For example, males had applied for promotion at a much greater rate than had females. Moreover, a higher proportion of women than men who applied were successful.17 Roughly equal numbers of males and females were asked whether they were interested in promotion. However, a much larger proportion of the males who were asked responded affirmatively.18 Men were also willing to give up more to obtain a promotion. For example, they were more willing to have a less than optimal shift assignment or to accept a transfer.19
There is also some evidence that gender imbalances among university academic staff are not attributable to discrimination. A study of Canadian universities showed that while women were under-represented, and especially at the higher levels, this was not a consequence of discrimination against females.20 The study looked at the average age of people in each of the academic ranks and calculated when each cohort would have been appointed. This was then compared to the number of women earning PhDs immediately before that. It was found that “figures from the 1960s are consistent with there being a modest degree of discrimination against women during the hiring process at this time.”21 However, it was also found that “for all other ranks, the data are consistent with there being significant discrimination in favor of women and against men.”22 Indeed, “the discrepancy… is much larger than the reverse discrepancy at the rank of full professor.”23
There are also interesting differences between academic disciplines, with women even more under-represented in some disciplines. It is implausible to think that discrimination in university admissions explains why women are an especially small minority of engineering students, for example. Are we really to believe that while medical schools are now unbiased in their admissions, because women now constitute a majority of medical students, engineering schools are still pervaded by prejudice?24 It is much more likely that females are choosing medicine over engineering. And if that is not the case, are we to conclude that medical schools are now biased against males, given that they now constitute fewer than half of all medical students in some countries?
Denying that these phenomena are explained primarily by proximate discrimination does not mean that discriminatory features of the wider society are not at play. Perhaps gender roles and other aspects of socialization make girls and boys more or less likely to enter specific professions, to be more or less inclined to seek promotion, to opt for part-time employment. However, an affirmative action policy that grants preferential treatment to women is even harder to justify if one is attempting to correct for this upstream discrimination.
To see why this is so, consider the following. After divorce, fathers gain custody of children much less often than mothers and this is not simply because of implicit bias of judges. Men request custody less often. Perhaps it is even the case that fathers are less often the better custodial parent. Even if one thinks that biology is part of the explanation why males seek and are suited to custody less often, gender roles and other social factors also play a role. However, it does not follow that we should implement an affirmative action policy that aims to attain the levels of paternal custody that would have existed in the absence of those roles and factors. In deciding who gets custody, judges need to consider which parent or parents want custody and whether one parent is better suited to having custody. Custody decisions should not be made on the basis of what the paternal custody proportions would have been if fathers had been reared differently and thus made them want custody and be suited to it more often. Indeed, it seems repugnant consciously to aim at awarding custody to fathers more often even though one knew that fewer men wanted custody and that fewer would be the better custodial parent. This is true even if one knew that in the absence of socially reinforced gender roles men would have accounted for a greater proportion than they now do of parents wanting and worthy of custody.
It is similarly inappropriate to favor women in hiring or promotion merely because, in the absence of socially reinforced gender roles, more women would have chosen to become engineers or pilots, for example. In deciding who should gain custody, each parent’s relative interest in and suitability to serve as the custodial parent is central. In deciding who should be appointed or hired, a person’s capacity to do the job is central. That there are fewer female engineers and pilots from whom to choose does not mean that those hiring engineers and pilots should put any weight on a woman’s sex in deciding whether to hire her. Doing so would put proportionately less weight on attributes that are relevant to how well she will do the job.
The same problem would arise for affirmative action policies that favor males in traditionally female professions. Imagine, for example, that a pool of applicants for a pre-primary school teacher position is 95% female. One can try to broaden the pool such that the proportion of males in the pool increases. However, if males are uninterested in applying, even if this is a product of socially contrived gender roles, then one might still have only 5% of the applicants being male. If one then favors those who constitute that 5% just because they are male, one will end up hiring some males who are weaker than the females one would otherwise have appointed. The more weight one attaches to being male, the relatively less other attributes will count. Thus, the stronger the form of affirmative action, the weaker, on average, will be those selected from the preferred sex. This is true if the favored sex is male, but it is equally true if the favored sex is female.
This is not to say that men cannot make good pre-primary school teachers (or that women cannot make good engineers or pilots). Instead it is to say that in hiring decisions, a person’s sex is (generally) not relevant.25 If it is made a consideration, then other considerations invariably count proportionately less and that would lead to the appointment of people who are less qualified for the position.
The underlying issue here is how we respond to the choices people do make, even if those choices would have been different if conditions had been different. Now, sometimes the conditions under which people choose are obviously such that their choices cannot be said to be free. If Dick Turpin offers you the choice of “your money or your life” and you choose to part with your money, your choice is not free. That, however, is not the kind of case about which we are speaking. Such cases are easy and we know what to do about such injustices — remove the threat.
We are speaking about more difficult cases — cases where one acts on the basis of preferences or attributes formed at least in part by social influences, but with which one identifies. The preferences are yours and you choose freely in accordance with them. If there are background injustices in the influences that lead to the formation of the preferences, then those injustices must be rectified upstream, where they occur. They cannot be rectified by overriding or ignoring people’s choices or by favoring the very members of a group who were immune to the upstream influences.
Put another way, you should not be favored by how many other people of your sex have chosen as you did. Thus, if you are a woman who chose to become an engineer or a man who chose to become a pre-primary teacher, whether you get the job should not depend at all on the fact that your choice was relatively uncommon for somebody of your sex.26 Similarly, if you are a man who chose to become an engineer or a woman who chose to become a pre-primary teacher, whether you get a particular job should not depend at all on the fact that most other people who made that choice are of the same sex.
Moreover, even if we thought it appropriate to correct for disadvantages caused by socially influenced preferences, it would be impossible to do so with any accuracy. So many of our preferences fall into this category and it is possible to know just how much better off each one of us would have been had our preferences been influenced in myriad alternative ways.
According to the view I have been presenting, the differing preferences of males and females, even if socially influenced, are not appropriate grounds for giving preference to either females or males. This does not mean, of course, that other things should not be done about background discrimination that affects the formation of preferences. We should take steps to avoid forcing girls and boys into gender roles. We should avoid characterizing certain jobs as either male or female. However, none of these sorts of intervention amount to giving preference to either sex. They are instances of equal opportunity affirmative action rather than preference affirmative action and are thus not problematic.
However, we should not assume that disproportionate representation of one or other sex in specific jobs or activities implies that societal discrimination is still at play. Natural differences might influence choices. Even when they do not, men and women might gravitate at different times and in different places at different rates into various positions and activities.
The present discrimination version of the rectification argument, like the past discrimination version, is much more problematic than its advocates realize. Taking note of the application of these arguments to the second sexism, as I have done, may highlight those difficulties that defenders of sex-based preference affirmative action might otherwise not see. Indeed, the implications of the second sexism for affirmative action might explain, at least in part, why some people are so reluctant to admit that there is a second sexism.
Lessons from “Summers School”
I argued above that discrimination does not fully account for the different participation rates by men and women in particular professions, jobs or activities. Feminists typically offer no complaint about that if the professions, jobs or activities are undesirable or unpleasant ones. However, the suggestion that discrimination does not fully account for women’s under-representation in desirable positions is sometimes met with outrage.
Consider, for example, the case of Lawrence Summers. While president of Harvard University, Professor Summers was invited to speak in his capacity as an economist, rather than as university president, at a conference of the National Bureau of Economic Research.27 The topic of the conference was diversifying the science and engineering workforce. He was asked to be provocative. Notwithstanding the uproar it caused, the speech itself was mild. Professor Summers noted that women are under-represented in “tenured positions in science and engineering at top universities and research institutions.” He said that he wanted to “try to think about and offer some hypotheses as to why we observe what we observe” without passing judgment about this. He distinguished three hypotheses.
The first, what he called the “high-powered job hypothesis,” was that “there are many professions and many activities, and the most prestigious activities in our society expect of people who are going to rise to leadership positions in their forties near total commitments to their work” and that “it is a fact of about our society that that is a level of commitment that a much higher fraction of married men have been historically prepared to make than of married women.” He hastened to add that that was “not a judgment about how it should be” but rather just a description of the way things seem to be.
The second hypothesis is what he called the “different availability of aptitude at the high end.” According to this hypothesis, regarding “many, many human attributes… there is relatively clear evidence that whateverdifference in means… there is a difference in the standard deviation, and variability of a male and a female population.” He said that “physicists at a top twenty-five research university… are people who are three and a half, [or] four standard deviations above the mean.” Thus although there will be some very talented women at the high end, they would probably, according to this hypothesis, be outnumbered by men. In other words, the pool of high-end physicists, although not exclusively male, is disproportionately male.
The third hypothesis is the “socialization” hypothesis. As its name suggests, it attributes the gender imbalance under discussion to the different ways in which boys and girls are reared. Professor Summers indicated that while he thought that socialization may play some role, he provided reasons why not too much weight should be assigned to this hypothesis. His reluctant conclusion was that a combination of the first two hypotheses “probably explains a fair amount of this problem.” He was clearly uncomfortable with even that mild and tentative conclusion, which he described as being, in his estimate, “the unfortunate truth,” noting that he “would far prefer to believe something else.” He also proposed a series of practical questions which he said were “ripe for research” — questions that would go some way to testing the hypotheses.
Professor Summers described his conclusions as his “best guesses,” noting that they “may be all wrong” and that he will have served his purpose if he “provoked thought on this question and provoked the marshalling of evidence to contradict” what he had said.
It really is difficult to imagine a more tentative, reticent, even apologetic presentation of the possibility that discrimination may not be the major factor explaining the under-representation of women in certain areas. Yet it met with outrage and indignation. At least one professor at the talk walked out,28 and that was only the beginning.
Almost immediately his remarks were misinterpreted, albeit subtly. The chair of Harvard’s sociology department said that “the president of Harvard University didn’t think that women scientists were as good as men.”29 That, however, was not what he said. He raised the possibility that there might be fewer women at the highest end of scientific ability. That is not the same as the claim that female scientists are not as good as male scientists. The New York Times itself attributed to Professor Summers the view that “innate sex differences might leave women less capable of succeeding at the most advanced mathematics,”30 whereas it would have been more accurate to say that he thought that innate sex differences might result in there being fewer women capable of succeeding at the most advanced levels of subjects like mathematics.
The misinterpretation persisted even once the transcript of the remarks was released and people could read it for themselves. Several Harvard professors, it was reported, said “they felt he believed women were intellectually inferior to men.”31 Again, that is not what he said, nor is it an implication of what he said. The claim that there are more males at the highest levels of ability in areas like mathematics and engineering does not entail the claim that most women are intellectually inferior to men. There are disciplines other than engineering and mathematics, and even in those areas nothing he said implied that no women are capable of high-level intellectual activity. Professor Summers’ remarks no more entail the conclusion that females are intellectually inferior than the claim that there are more males at the lowest levels of intellectual ability entails the claim that women are intellectually superior to men.
The outrage was not attributable only to misinterpretation. Even those who seem to have understood correctly what Professor Summers said were angry. Within a week Professor Summers, while not repudiating what he said, was apologizing that his words had “resulted in an unintended signal of discouragement to talented girls and women.”32 However, this did not appease his critics. He came under severe criticism at a meeting of the faculty of arts and sciences.33 Harvard professors took a vote of no confidence, which passed by 218 to 185 votes.34 Professor Summers resigned as President of Harvard early the following year.35
There are a number of lessons to be learned from this case. The first is a lesson about the extent to which the dogma that all sex differences are attributable to socialization has penetrated universities (and perhaps especially the social sciences). It is a dogma because alternative views are dismissed out of hand and reasonable proposals to test it are met with indignation rather than open-mindedness.
Second, we see just how intolerant some social constructionists are. The view Professor Summers was raising is one that enjoys support from a vast number of very respectable scholars. This is not a fringe, crackpot view, even if it is also not a unanimous one. To respond as vehemently as many of them did to the mention of it is alarming.
Third, it is also indicative of the insatiability of the affirmative action appetite, to which I referred earlier. Professor Summers’ comments were not an attempt to justify failing to do anything about the relatively small proportion of women in some areas. Indeed Harvard had already taken measures to address this issue and continued to do so. The problem is that no matter how much is done, many defenders of affirmative action are not satisfied unless men and women are roughly equally represented — in desirable positions, that is. They treat the mere differential as evidence of discrimination, yet they make no such inference when the differential favors women. In the latter cases the very suggestion that men are the victims of discrimination is met with indignation, if not hostility.
Consequentialist Arguments
Consequentialist arguments for affirmative action, like all consequentialist arguments, are forward- rather than backward-looking. Affirmative action is justified, according to these arguments, by the good outcomes it is alleged to yield. Many, but not all, such arguments appeal to the value of diversity. They claim that the greater diversity produced by affirmative action is necessary to attain certain desirable goals. Thus affirmative action is a means to greater diversity, and diversity is said to be a means to one or more of a number of goods. I shall refer to arguments of this kind as diversity arguments and will focus on those that are most relevant to sex-based (rather than race-based) affirmative action.36
The viewpoint diversity argument
The first diversity argument suggests that gender diversity is valuable because it promotes a diversity of viewpoints. This in turn is important either for the pursuit of truth in those institutions such as universities, where the pursuit of truth is crucial, or for greater creativity or innovation in other institutions and in corporations. The pursuit of truth version draws on John Stuart Mill. In his famous defense of freedom of speech, he argued that those who suppress an opinion do so to their detriment. “If the opinion is right,” he said, “they are deprived of the opportunity of exchanging error for truth: if wrong, they lose… the clearer perception and livelier impression of truth, produced by its collision with error.”37 In other words, a diversity of views facilitates the pursuit of truth. One can see similarly how a mix of viewpoints could foster creativity and innovation in organizations where these goals are more central than the “pursuit of truth,” narrowly conceived.
If the viewpoint-diversity argument is accepted, it would apply not only to women (and to disadvantaged racial groups) but also to political and religious views. Among academic staff of universities (and especially in certain disciplines), political conservatives and religious fundamentalists, for example, are under-represented38 and thus should also be favored, according to the viewpoint-diversity argument. It would also apply to males in those professions where women predominate. Since advocates of affirmative action tend not to support preferences for such groups, it becomes questionable whether their advocacy of affirmative action really is based on this version of the diversity argument. However, they could (even if they will not) bite the bullet and extend the argument to religious and political views.
If the “pursuit of truth” argument is saved in this way, it remains questionable whether it does the kind of work that advocates of affirmative action think it does. For instance, diversity is not proportionality,39 as many advocates of affirmative action mistakenly think. Thus insofar as women have different opinions from men, the viewpoint-diversity argument requires only that there be some women in each of the various sectors. It does not require that the number of women be proportionate to their share of the overall population. Since there are already a significant number of women in all or almost all those sectors where feminists suggest that sex-based affirmative action is required, affirmative action cannot be justified on this basis. The goal it justifies has already been met. This suggests that the “viewpoint-diversity” argument is not the real reason for their endorsement of affirmative action. Their choice, then, is either to accept the implications of the diversity argument or to abandon it.
The viewpoint-diversity argument assumes that sex-based affirmative action would foster a diversity of opinions. It is easy to understand, given the differing experiences of males and females, how having both sexes present might enhance a diversity of views in areas of inquiry such as psychology and sociology. It is much less clear, however, how having both men and women increases diversity of opinion in those areas, such as mathematics and physics, where the differing experience of each sex is unlikely to bear on the subject matter. Yet defenders of sex-based affirmative action want to see it employed across all disciplines and employment sectors (where women but not men are under-represented).
The role-model argument
A second diversity argument for affirmative action is that hiring (and promoting) women provides other women and girls with role models, which it is said are necessary to encourage other females to enter a given area of study and work.
It is hard to deny that a role model can be advantageous. The question is whether the role-model argument is strong enough to defend affirmative action. Put another way, the question is whether the benefit of role models is great enough to warrant a departure from a more sex-blind policy of equality of opportunity.
One common response to the “role-model” argument draws on the observation I made earlier that women are not disadvantaged in the ways in which, for example, blacks in America and South Africa are. Women (unless they are also members of such disadvantaged groups) have social and educational privilege. It is unclear that people of this sort really require role models to succeed. There have been other groups entering tertiary education and other sectors for the first time (at least for the first time in a new society if they are immigrants). Where such groups have not been deprived of decent education at the primary and secondary levels, they have succeeded and thrived at university and beyond without having role models. For example, the first generation of Jews to enter universities in the United States that often had quotas limiting their numbers succeeded without (many) role models among the professoriate.40
Unless they are also members of a particularly disadvantaged racial or ethnic group, women are no more disadvantaged, and often a lot less disadvantaged, than those ethnic groups who have successfully entered the realms of academia, the professions, business and industry. The “role-model” argument is thus considerably weaker in defending affirmative action for women than it is in defending affirmative action for blacks.41
Moreover, it is unclear that the role-model argument requires that the number of women in a given employment sector be proportional to their number in the population. Girls do not have to see that half of all engineers are female in order to have role models. It is sufficient that there be a few successful female engineers. Since there are already some such role models, it is hard to see how affirmative action could be justified on the basis of the role-model argument.
If the response is that, contrary to what I have just claimed, one does need at least many more women in those professions in which they are under-represented, then the argument would apply also to those professions and employment sectors in which males are under-represented. It would justify affirmative action for males in pre-primary education, in nursing and in secretarial services.
A common response to this suggestion is that there is a crucial difference between male under-representation in these areas and female under-representation in other areas.42 The alleged difference is that whereas prevailing prejudices would have it that females are incapable of being mathematicians or scientists, males are not taught that they are incapable of becoming pre-primary teachers or nurses. Instead they are taught that such work is beneath them and is fit only for women.
This response is unconvincing. It was once thought that women were incapable of (or unsuited to) entering the professions, but it is extremely implausible to think that this is still the case in free societies. Indeed, female enrolment in medical schools, for example, now outstrips that of males in a number of countries. Perhaps it will be said that while females are no longer thought incapable of becoming doctors, they are still thought incapable of becoming engineers. Much more likely, however, is that those advancing the argument that women are perceived to be incapable are sticking to that hypothesis until females choose a given profession in numbers comparable to or exceeding those of males. To do this is to make the mistake of treating under-representation of women in a given profession as evidence of the prejudice. There are alternative possible explanations, including the view that women prefer some professions to others. There may well be complicated social reasons why women have those preferences, but that is different from claiming that women are perceived to be incapable. There do seem to be enough female engineers, for example, to refute the suggestion that women are perceived as incapable of entering that profession.
What of the suggestion that males are taught that those professions in which they enter in disproportionately small numbers are beneath them? If that is the message that is conveyed to boys and men, it unfairly disadvantages certain men. Some people might prefer to become a nurse than to become a doctor. Of those who would prefer to become a doctor, that option might not be open to all of them. Some might lack the academic qualifications necessary to gain admittance to medical school, or they might lack the resources to pay for the lengthy education required to become a doctor. For such people, becoming a nurse might well be a social advancement. Insofar as gender roles discourage males from entering such professions, they may well find themselves instead in those often dangerous jobs (such as mining, construction and logging) in which men have historically predominated. This may be to their disadvantage.
To clarify once again, I am not recommending that affirmative action policies be introduced for males in professions where they are under-represented. I am showing instead that those who do defend affirmative action for women on the basis of the role-model argument should be committed to affirmative action for males in certain contexts. Yet many (but not all) of them reject affirmative action for males. I think that they have good reasons for rejecting it, but these same reasons also apply to affirmative action for females.
The legitimate-sex-preference argument
According to this third argument, people sometimes have a legitimate preference that a person of a particular sex performs a specific job. Thus, if there are insufficient females in that line of work, females may be favored. For example, it might be argued that some women have a legitimate preference for a female gynecologist and thus if there is a dearth of female gynaecologists, gynecological training programs may favor female candidates in admission decisions. Similarly, gynecological practices with too few female practitioners may favor female candidates in their hiring decisions.
I shall not explain here why I think that a female’s preference for a (heterosexual) female gynecologist is reasonable.43 On the assumption that it is, a policy of favoring the appointment of female gynaecologists is not unreasonable. However, there are at least two things to note about the legitimate-sex-preference argument.
First, like the others, it also supports favoring males under certain circumstances. Some males may prefer (heterosexual) male nurses, for example. Second, the argument has limited application. It might apply to doctors, nurses, prison guards, those responsible for physical searches in security screening and so forth. Moreover, many of the jobs or professions in which women are most under-represented are also those to which the legitimate sex preference does not apply. For example, it cannot apply to the training or hiring of engineers, pilots or mathematicians. This is because a preference for an engineer, pilot or mathematician of a particular sex is not legitimate in the way that a same-sex preference in the other cases may be.
The ideal argument
Ronald Dworkin discerns two senses in which a society may be said to be “better off” as a result of affirmative action. The first is utilitarian. The three diversity arguments I have just considered are arguments that affirmative action makes society better off in this sense. The second sense in which a society may be said to be “better off” is in what Professor Dworkin calls the “ideal” sense. A society is better off in an ideal sense if it is “more just, or in some other way closer to an ideal society.”44
The obvious question that arises, however, is whether affirmative action does indeed produce a society that is either more just or that comes closer to an ideal. Those who think it does argue that had there not been powerful gender roles then the gender profile of various professions would be very different. The assumption, then, is that if affirmative action is the most effective way of attaining the gender profile that would have existed in the absence of injustice, it is an effective way of making a society more just.
One problem for this view is that we do not know what gender profile would have existed in any given job in the absence of injustice. Even in the absence of unfair discrimination, we cannot expect that both sexes will be represented proportionately in all professions, trades and activities. Defenders of sex-based affirmative action may have difficulty seeing this and they may assume that unequal representation is always the consequence of discrimination. They should consider that other groups are often disproportionately prevalent without this being the consequence of discrimination. For example, there was a disproportionately large number of Jews at the University of Vienna in the late nineteenth and early twentieth century, despite discrimination against them.45 In early twentieth-century India, Parsees held a disproportionate number of university degrees, especially in sciences and engineering.46 In the Catholic Church in the United States, disproportionately many priests and bishops were Irish and disproportionately few were Italian.47 There was a disproportionately large number of female doctors in the Soviet Union.48 More recently, Cambodian immigrants ran 80% of doughnut shops in California,49 and a disproportionately large number of African-born residents of the United States, relative to any other immigrants or US citizens, hold doctoral degrees.50 Most Canadian hockey players shoot left-handed, but south of the border, in the United States, the majority of hockey players shoot right-handed.51
If unequal distributions are possible in the absence of discrimination in the case of these ethnic and national groups, it could also be true of the sexes. We do not know how much of the differential proportion is attributable to discrimination. However, even if we did know, there is a problem with the assumption that approaching the gender profile that would have obtained in the absence of discrimination makes a society more just or closer to an ideal society. Even if the absence of that gender profile is the consequence of discrimination, it does not follow that the use of any means to attain that profile makes the society more just. Some ways of achieving that profile would simply plaster over unfairness and create a mere appearance of rectification. This would be the case if making the gender profiles correct required selecting women who would not have been selected in the absence of preference and failing to select men who would have been selected in the absence of preference for females — and vice versa. Affirmative action is a very poor mechanism for making a society more just, even if it happens to be good at making a society appear more just to those who confuse particular sex profiles with justice. Such people need to look beyond appearances to reality.
Consequentialist arguments for affirmative action, like all consequentialist arguments, are forward- rather than backward-looking. Affirmative action is justified, according to these arguments, by the good outcomes it is alleged to yield. Many, but not all, such arguments appeal to the value of diversity. They claim that the greater diversity produced by affirmative action is necessary to attain certain desirable goals. Thus affirmative action is a means to greater diversity, and diversity is said to be a means to one or more of a number of goods. I shall refer to arguments of this kind as diversity arguments and will focus on those that are most relevant to sex-based (rather than race-based) affirmative action.36
The viewpoint diversity argument
The first diversity argument suggests that gender diversity is valuable because it promotes a diversity of viewpoints. This in turn is important either for the pursuit of truth in those institutions such as universities, where the pursuit of truth is crucial, or for greater creativity or innovation in other institutions and in corporations. The pursuit of truth version draws on John Stuart Mill. In his famous defense of freedom of speech, he argued that those who suppress an opinion do so to their detriment. “If the opinion is right,” he said, “they are deprived of the opportunity of exchanging error for truth: if wrong, they lose… the clearer perception and livelier impression of truth, produced by its collision with error.”37 In other words, a diversity of views facilitates the pursuit of truth. One can see similarly how a mix of viewpoints could foster creativity and innovation in organizations where these goals are more central than the “pursuit of truth,” narrowly conceived.
If the viewpoint-diversity argument is accepted, it would apply not only to women (and to disadvantaged racial groups) but also to political and religious views. Among academic staff of universities (and especially in certain disciplines), political conservatives and religious fundamentalists, for example, are under-represented38 and thus should also be favored, according to the viewpoint-diversity argument. It would also apply to males in those professions where women predominate. Since advocates of affirmative action tend not to support preferences for such groups, it becomes questionable whether their advocacy of affirmative action really is based on this version of the diversity argument. However, they could (even if they will not) bite the bullet and extend the argument to religious and political views.
If the “pursuit of truth” argument is saved in this way, it remains questionable whether it does the kind of work that advocates of affirmative action think it does. For instance, diversity is not proportionality,39 as many advocates of affirmative action mistakenly think. Thus insofar as women have different opinions from men, the viewpoint-diversity argument requires only that there be some women in each of the various sectors. It does not require that the number of women be proportionate to their share of the overall population. Since there are already a significant number of women in all or almost all those sectors where feminists suggest that sex-based affirmative action is required, affirmative action cannot be justified on this basis. The goal it justifies has already been met. This suggests that the “viewpoint-diversity” argument is not the real reason for their endorsement of affirmative action. Their choice, then, is either to accept the implications of the diversity argument or to abandon it.
The viewpoint-diversity argument assumes that sex-based affirmative action would foster a diversity of opinions. It is easy to understand, given the differing experiences of males and females, how having both sexes present might enhance a diversity of views in areas of inquiry such as psychology and sociology. It is much less clear, however, how having both men and women increases diversity of opinion in those areas, such as mathematics and physics, where the differing experience of each sex is unlikely to bear on the subject matter. Yet defenders of sex-based affirmative action want to see it employed across all disciplines and employment sectors (where women but not men are under-represented).
The role-model argument
A second diversity argument for affirmative action is that hiring (and promoting) women provides other women and girls with role models, which it is said are necessary to encourage other females to enter a given area of study and work.
It is hard to deny that a role model can be advantageous. The question is whether the role-model argument is strong enough to defend affirmative action. Put another way, the question is whether the benefit of role models is great enough to warrant a departure from a more sex-blind policy of equality of opportunity.
One common response to the “role-model” argument draws on the observation I made earlier that women are not disadvantaged in the ways in which, for example, blacks in America and South Africa are. Women (unless they are also members of such disadvantaged groups) have social and educational privilege. It is unclear that people of this sort really require role models to succeed. There have been other groups entering tertiary education and other sectors for the first time (at least for the first time in a new society if they are immigrants). Where such groups have not been deprived of decent education at the primary and secondary levels, they have succeeded and thrived at university and beyond without having role models. For example, the first generation of Jews to enter universities in the United States that often had quotas limiting their numbers succeeded without (many) role models among the professoriate.40
Unless they are also members of a particularly disadvantaged racial or ethnic group, women are no more disadvantaged, and often a lot less disadvantaged, than those ethnic groups who have successfully entered the realms of academia, the professions, business and industry. The “role-model” argument is thus considerably weaker in defending affirmative action for women than it is in defending affirmative action for blacks.41
Moreover, it is unclear that the role-model argument requires that the number of women in a given employment sector be proportional to their number in the population. Girls do not have to see that half of all engineers are female in order to have role models. It is sufficient that there be a few successful female engineers. Since there are already some such role models, it is hard to see how affirmative action could be justified on the basis of the role-model argument.
If the response is that, contrary to what I have just claimed, one does need at least many more women in those professions in which they are under-represented, then the argument would apply also to those professions and employment sectors in which males are under-represented. It would justify affirmative action for males in pre-primary education, in nursing and in secretarial services.
A common response to this suggestion is that there is a crucial difference between male under-representation in these areas and female under-representation in other areas.42 The alleged difference is that whereas prevailing prejudices would have it that females are incapable of being mathematicians or scientists, males are not taught that they are incapable of becoming pre-primary teachers or nurses. Instead they are taught that such work is beneath them and is fit only for women.
This response is unconvincing. It was once thought that women were incapable of (or unsuited to) entering the professions, but it is extremely implausible to think that this is still the case in free societies. Indeed, female enrolment in medical schools, for example, now outstrips that of males in a number of countries. Perhaps it will be said that while females are no longer thought incapable of becoming doctors, they are still thought incapable of becoming engineers. Much more likely, however, is that those advancing the argument that women are perceived to be incapable are sticking to that hypothesis until females choose a given profession in numbers comparable to or exceeding those of males. To do this is to make the mistake of treating under-representation of women in a given profession as evidence of the prejudice. There are alternative possible explanations, including the view that women prefer some professions to others. There may well be complicated social reasons why women have those preferences, but that is different from claiming that women are perceived to be incapable. There do seem to be enough female engineers, for example, to refute the suggestion that women are perceived as incapable of entering that profession.
What of the suggestion that males are taught that those professions in which they enter in disproportionately small numbers are beneath them? If that is the message that is conveyed to boys and men, it unfairly disadvantages certain men. Some people might prefer to become a nurse than to become a doctor. Of those who would prefer to become a doctor, that option might not be open to all of them. Some might lack the academic qualifications necessary to gain admittance to medical school, or they might lack the resources to pay for the lengthy education required to become a doctor. For such people, becoming a nurse might well be a social advancement. Insofar as gender roles discourage males from entering such professions, they may well find themselves instead in those often dangerous jobs (such as mining, construction and logging) in which men have historically predominated. This may be to their disadvantage.
To clarify once again, I am not recommending that affirmative action policies be introduced for males in professions where they are under-represented. I am showing instead that those who do defend affirmative action for women on the basis of the role-model argument should be committed to affirmative action for males in certain contexts. Yet many (but not all) of them reject affirmative action for males. I think that they have good reasons for rejecting it, but these same reasons also apply to affirmative action for females.
The legitimate-sex-preference argument
According to this third argument, people sometimes have a legitimate preference that a person of a particular sex performs a specific job. Thus, if there are insufficient females in that line of work, females may be favored. For example, it might be argued that some women have a legitimate preference for a female gynecologist and thus if there is a dearth of female gynaecologists, gynecological training programs may favor female candidates in admission decisions. Similarly, gynecological practices with too few female practitioners may favor female candidates in their hiring decisions.
I shall not explain here why I think that a female’s preference for a (heterosexual) female gynecologist is reasonable.43 On the assumption that it is, a policy of favoring the appointment of female gynaecologists is not unreasonable. However, there are at least two things to note about the legitimate-sex-preference argument.
First, like the others, it also supports favoring males under certain circumstances. Some males may prefer (heterosexual) male nurses, for example. Second, the argument has limited application. It might apply to doctors, nurses, prison guards, those responsible for physical searches in security screening and so forth. Moreover, many of the jobs or professions in which women are most under-represented are also those to which the legitimate sex preference does not apply. For example, it cannot apply to the training or hiring of engineers, pilots or mathematicians. This is because a preference for an engineer, pilot or mathematician of a particular sex is not legitimate in the way that a same-sex preference in the other cases may be.
The ideal argument
Ronald Dworkin discerns two senses in which a society may be said to be “better off” as a result of affirmative action. The first is utilitarian. The three diversity arguments I have just considered are arguments that affirmative action makes society better off in this sense. The second sense in which a society may be said to be “better off” is in what Professor Dworkin calls the “ideal” sense. A society is better off in an ideal sense if it is “more just, or in some other way closer to an ideal society.”44
The obvious question that arises, however, is whether affirmative action does indeed produce a society that is either more just or that comes closer to an ideal. Those who think it does argue that had there not been powerful gender roles then the gender profile of various professions would be very different. The assumption, then, is that if affirmative action is the most effective way of attaining the gender profile that would have existed in the absence of injustice, it is an effective way of making a society more just.
One problem for this view is that we do not know what gender profile would have existed in any given job in the absence of injustice. Even in the absence of unfair discrimination, we cannot expect that both sexes will be represented proportionately in all professions, trades and activities. Defenders of sex-based affirmative action may have difficulty seeing this and they may assume that unequal representation is always the consequence of discrimination. They should consider that other groups are often disproportionately prevalent without this being the consequence of discrimination. For example, there was a disproportionately large number of Jews at the University of Vienna in the late nineteenth and early twentieth century, despite discrimination against them.45 In early twentieth-century India, Parsees held a disproportionate number of university degrees, especially in sciences and engineering.46 In the Catholic Church in the United States, disproportionately many priests and bishops were Irish and disproportionately few were Italian.47 There was a disproportionately large number of female doctors in the Soviet Union.48 More recently, Cambodian immigrants ran 80% of doughnut shops in California,49 and a disproportionately large number of African-born residents of the United States, relative to any other immigrants or US citizens, hold doctoral degrees.50 Most Canadian hockey players shoot left-handed, but south of the border, in the United States, the majority of hockey players shoot right-handed.51
If unequal distributions are possible in the absence of discrimination in the case of these ethnic and national groups, it could also be true of the sexes. We do not know how much of the differential proportion is attributable to discrimination. However, even if we did know, there is a problem with the assumption that approaching the gender profile that would have obtained in the absence of discrimination makes a society more just or closer to an ideal society. Even if the absence of that gender profile is the consequence of discrimination, it does not follow that the use of any means to attain that profile makes the society more just. Some ways of achieving that profile would simply plaster over unfairness and create a mere appearance of rectification. This would be the case if making the gender profiles correct required selecting women who would not have been selected in the absence of preference and failing to select men who would have been selected in the absence of preference for females — and vice versa. Affirmative action is a very poor mechanism for making a society more just, even if it happens to be good at making a society appear more just to those who confuse particular sex profiles with justice. Such people need to look beyond appearances to reality.
Conclusion
Except in its equal opportunity form, affirmative action involves a preference for people of one sex. Not only opponents but also many defenders of such affirmative action agree that there is a moral presumption against such preference in admissions, appointments and promotions decisions (except in the rare cases of legitimate sex preference to which I referred earlier). They are divided only on the question whether that presumption is defeated by other considerations in the case of affirmative action. That many defenders of affirmative action agree that there is a presumption against favoring people of one sex is borne out by the fact that they believe it should be implemented only as an interim measure until the problem it seeks to address is either fixed or sufficiently alleviated. I have argued that none of the arguments for preference affirmative action are successful. It follows that none of them can defeat a presumption against gender preference.
There may be some defenders of affirmative action who deny that there is even a presumption against the preference for women that is involved in most forms of affirmative action. Some defenders of affirmative action deny that it amounts to “reverse discrimination,” “reverse sexism” or, to use my phrase, “second sexism.” This, they say, is because unlike discrimination against women, which is predicated on views of women as inferior, affirmative action implies no contempt for males and is thus not presumptively wrong.
This argument is flawed even if we grant that affirmative action embodies no negative assumptions about males. Defenders of affirmative action would surely be opposed to disadvantaging women even if that discrimination did not emanate from beliefs in the inferiority of women. Although belief in the inferiority of those against whom one discriminates may well exacerbate sexism, the basic wrong of sexism lies in the discriminatory mistreatment.
It is because sex-based affirmative action is sexist discrimination that my rejection of it is continuous with my rejection of sexism and the second sexism. Men and women may have average differences but these do not justify discriminating in favor of or against individual members of either sex. For example, women are, on average, shorter and lighter than males. However, we may not, as a consequence, use a person’s sex as a proxy for these attributes when appointing people to positions that require greater height and weight. Doing so would be unfair to those women who have the relevant attributes, and it would be counterproductive to hire those men who lack them and who are thus less able to perform the tasks.52 But the same rationale extends to affirmative action. There may be fewer women in a given kind of job. It does not follow that we may use a female applicant’s sex as a proxy for the attribute “victim of discrimination,” and thus favor her via affirmative action.
While average differences between the sexes do not justify discriminatory treatment, they are nonetheless relevant, because they should lead us not to presume that males and females will be found in equal numbers in the ranks of every profession and among school dropouts, criminals and prison inmates, for example.
There are complicated reasons why members of each sex gravitate to particular jobs and certain sectors of society. Even when gender roles play a part in this, affirmative action is a problematic strategy. Appointments are not gifts for the benefit of those who receive them (even though those who are appointed often do benefit). We appoint people to do a job — indeed, the best possible job. For that we need to choose the best possible people for the particular job. Although we are less likely to appoint the best possible person if the candidate pool from which we are making the appointment is unduly limited, we do not compensate for that limitation by giving extra weight to the sex of those people within the pool. In other words, there is no problem, as I indicated earlier, with what I called equal opportunity affirmative action, which merely aims to remove impediments to equality of opportunity. Such affirmative action could indeed broaden the pool of applicants. However, once we have a pool of applicants, we do not increase the likelihood of appointing the best person by giving weight to the sex of some people, whether male or female. This is because giving weight to sex must mean giving relatively less weight to other, relevant attributes.
Defenders of sex-based preference affirmative action often assume that when women are under-represented in desirable positions, this is a product of discrimination. They make no such assumption when women are under-represented in undesirable positions. Moreover, while they propose preferential policies to address the under-representation of women in desirable positions, they usually make no such proposals to reduce the proportion of males in undesirable positions. These asymmetries are curious and suggest that many defenders of sex-based affirmative action are not as interested in equality as they are in advancing the position of women. Sometimes there is a happy coincidence of the two, but it is when they come apart that the guiding principle is exposed. In any event, while equal opportunity affirmative action can advance equality, those forms of affirmative action that give preference to some people on the basis of their sex fail to do so, even when there is real discrimination to be overcome.
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