Tuesday, February 24, 2009

Discrimination for the discriminating

I floated the suggestion that the APA update its anti-discrimination policy:
Further, The American Philosophical Association rejects as unethical all forms of discrimination based on race, color, religion, political convictions, national origin, sex, disability, sexual orientation, gender identification or age, whether in graduate admissions, appointments, retention, promotion and tenure, manuscript evaluation, salary determination, or other professional activities in which APA members characteristically participate. At the same time, the APA recognizes the special commitments and roles of institutions with a religious affiliation; it is not inconsistent with the APA's position against discrimination to adopt religious affiliation as a criterion in graduate admissions or employment policies when this is directly related to the school's religious affiliation or purpose, so long as these policies are made known to members of the philosophical community and so long as the criteria for such religious affiliations do not discriminate against persons according to the other attributes listed in this statement. Advertisers in Jobs for Philosophers are expected to comply with this fundamental commitment of the APA, which is not to be taken to preclude explicitly stated affirmative action initiatives. The APA Board of Officers expects that all those who use the APA Placement Service will comply with the letter and spirit of all applicable regulations concerning non-discrimination, equal employment opportunity and affirmative action.

I don't have a problem with it, but it seems that there are some who seem to think that a school that has a policy of refusing to hire "practicing" homosexuals conforms to the APA's standards because the standard only prohibits discriminating against orientation.

Mike Otsuka seemed to think that this was a bad idea (here) but I think our disagreement concerns the right way to respond to the unreasonable. I'd agree that anyone who reads this policy in such a way that schools that discriminate against behavior conform to the APA's policy are not giving this a reasonable interpretation. I could be wrong about this. It could be that there is a perfectly reasonable interpretation of this statute on which it says nothing about schools that discriminate against those who engage in homosexual conduct. To figure that out, maybe we could work out the answers to some questions.

First, when the APA wrote this policy were there schools that discriminated against those with homosexual orientation on grounds of their orientation? If it was believed that no such schools existed, I'd be completely at a loss as to why the APA would make any mention of "sexual orientation".

Second, are there any cases in employment law in which a company successfully defended itself from a discrimination lawsuit on the grounds that the laws that protected orientation did not protect conduct or behavior?

Third, are there any anti-discrimination laws that explicitly protect orientation rather than behavior? I can find some states that interpret "orientation" in such a way that it follows from their particular use that behavior and conduct is covered automatically. I cannot find any states that interpret "orientation" in such a way that the protection of the orientation fails to cover the behavior.

Fourth, what does Scalia have to say about this? This seems relevant:
I turn next to whether there was a legitimate rational basis for the substance of the constitutional amendment -- for the prohibition of special protection for homosexuals. It is unsurprising that the Court avoids discussion of this question, since the answer is so obviously yes. The case most relevant to the issue before us today is not even mentioned in the Court's opinion: In Bowers v. Hardwick (1986), we held that the Constitution does not prohibit what virtually all States had done from the founding of the Republic until very recent years -- making homosexual conduct a crime. That holding is unassailable, except by those who think that the Constitution changes to suit current fashions. But in any event it is a given in the present case: Respondents' briefs did not urge overruling Bowers, and at oral argument respondents' counsel expressly disavowed any intent to seek such overruling. If it is constitutionally permissible for a State to make homosexual conduct criminal, surely it is constitutionally permissible for a State to enact other laws merely disfavoring homosexual conduct. And a fortiori it is constitutionally permissible for a State to adopt a provision not even disfavoring homosexual conduct, but merely prohibiting all levels of state government from bestowing special protections upon homosexual conduct.

But assuming that, in Amendment 2, a person of homosexual "orientation" is someone who does not engage in homosexual conduct but merely has a tendency or desire to do so, Bowers still suffices to establish a rational basis for the provision. If it is rational to criminalize the conduct, surely it is rational to deny special favor and protection to those with a self-avowed tendency or desire to engage in the conduct. Indeed, where criminal sanctions are not involved, homosexual "orientation" is an acceptable stand-in for homosexual conduct. A State "does not violate the Equal Protection Clause merely because the classifications made by its laws are imperfect."

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