Phil1450.Racism.Levin

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Unformatted text preview: Warning Concerning Copyright Restrictions The c0pyright law of the United States (Title '17, United States Code) governs the making of photocopies or other reproductions of copyrighted material. Under certain conditions specified in the law, libraries and archives are authorized to furnish a photOCOpy or other reproduction. One ofthese specified conditions is that the photocopy or reproduction is not to be “used for any purpose other than private study, scholarship, or research.” If a user makes a request for, or later uses, a photocopy or reproduction for purposes in excess of “fair use,” that user may be liable for copyright infringement. This institution reserves the right to refuse to accept a copying order if, in its judgment, fulfillment of the order would involve violation of copyright law. Printing note: lfyou do not want to print this page. select pages 2 to the end on the print dialog screen. Michael Levin The Free Market and Feminism Judged historically, the free market is the most successful economic arrangement. Permitting people to trade and associate freely for product— ive purposes has created unparalleled prosper— ity, along with support for the democratic institutions on which other forms of individual liberty have been found to depend. It is inevit- able that feminists reject the free market, how— ever, because they must interpret the expressions of sex differences facilitated by the freedom of the market as products of adverse socialization and discrimination. Certainly, the observed differences between male and female labor—market behavior are not in dispute, men and women do different sorts of work, and women earn lower average wages. It is also widely agreed that the immediate causes of these differences are differences in the mo— tives which lead men and women into the labor market. Most married working women work to supplement their husband’s income, which is regarded as the mainstay of the family budget.1 Working mothers are expected to care for their Children as well, or at any rate to supervise the arrangements for their care, an expectation that does not fall nearly so heavily upon fathers. Unmarried women often see work as an inter— regnum between school and marriage. For these reasons, women gravitate to jobs permitting easy entry, exit and re—entry to and from the workforce. Nor, finally, is it seriously ques— tioned that men tend to seek (although of course not always find) more prestigious jobs and to try to “get ahead” more than women do. In short, men and women invest their human capital differently.2 As always, the question is why these things are so. Feminist theory takes them to be conse— quences of oppression. In the words of the Committee on Women‘s Employment and Related Social Issues of the National Research Council of the National Science Foundation: to the extent that sex segregation in the workplace connotes the inferiority of women or contributes to women as men’s inferiors, it has great sym— bolic significance. To this extent, we believe it is fundamentally at odds with the estab— lished goals of equal opportunity and equal— ity under the law in American society.3 maintaining This theory is contradicted by the close match between many of the major differences in skills brought by men and women to the workplace and a number of the innate differ— ences. Together with the greater innate domin— ance—aggression of men, which manifests itself economically as greater competitiveness, this match strongly suggests that differences in workplace behavior are not best explained as products of the denial of equal opportunity. Affirmative Action While it is somewhat artificial to divide the effects of gender on job—seeking behavior from its effects on wage—seeking behavior, I focus on workplace segregation in the present chapter. in 1980, the National Opinion Research Center administered the Armed Services Voca— tional Aptitude Battery of ten tests of 12,000 randomly selected males and females between the ages of eighteen and twenty—three.4 The ASVAB was then factored into four composite tests for “mechanical,” “electronic,” “adminis— trative,” and “general” aptitudes.5 It was found that men scored considerably higher than women in mechanical and electronic aptitude, and slightly higher in general aptitude, while women exhibited greater administrative apti— tudef' (0n the individual tests, men for instance did considerably better on mechanical compre— hension and women did considerably better on coding speed?) These differences in aptitude were constant at all educational levels. Since the average female has 11.9 years of schooling to the average male’s 11.8, these differences do not represent an educational deficit.8 One might still wish to explain these aptitude differences in terms of socialization, but however they are explained they show that occupational segrega— tion is not wholly the result of employer dis— crimination working on a population of men and women. Some innate sex differences correlate closely homogeneous with aptitude for specific occupations, many of them prestigious, remunerative, and important in industrial society. Spatial ability is requisite for pipe fitting, technical drawing, and wood workings) and is the most important component of mechanical ability.lU Only about 20 percent of girls in the elementary grades reach the aver— age level of male performance on tests of spatial ability, and, according to the US Employment Service, all classes of engineering and drafting as well as a high proportion of scientific and technical occupations require spatial ability in the top 10 percent of the US population.‘1 While one should normally be chary of explain— ing any social phenomenon directly in terms of some innate gender dimorphism, male domin- ation of the technical and engineering profes- sions is almost certainly due to the male’s innate cognitive ad\antage rather than to a culturally induced female disadvantage.” Proportionally fewer women enter the technical fields than there are women in the population with the requisite raw skills, to be sure, but this is most plausibly attributed to the Goldberg feedback effect which selectively discourages women with marginal levels of skill e an injustice, perhap5, but one also borne by men with atypical skills. In any case, the sex segregation of the workforce is essentially the result of innate sex differenCes and unmanipulared expectations. However, if one assumes that women would, given the opportunity, be as interested in and as suited for virtually the same work as men, one is compelled to interpret the continuing statistical segregation of the workforce as evidencing dis. crimination. And, as the 1964 Civil Rights Act outlawed sex discrimination in all phases of employment, the claim that discrimination not only persists but is so pervasive as to demand extraordinary remedies must involve an unusual construction of “discrimination." One such construction prominent in government research on the question, is that women’s own prefer— ences obstruct equality of opportunity. A study by the Labor Department, Women in Tradition- ally Mule jobs, cites “the lack of female interest in many blue—collar jobs” as a “ubiquitous problem" in achieving “equal opportunity goals.”13 The Congressional Office of Technol- ogy Assessment cites “sex discrimination and sex stereotyping" as the barriers to women entering science and engineering: As long as women expect to assume the major role in housekeeping and child- rearing, and to sacrifice their professional interests to those of their husbands, they will be less likely than men to select occupa- tions like science and engineering that re- quire major educational and labor force commitment. H The Case for Quotas There are three basic arguments for quotas, yielding as corollaries the three basic arguments for gender quotas. I cannot demonstrate that every argument that anyone might offer for quotas falls under one of these three, but if these three fail, it seems extremely unlikely that any entirely new argument is going to be successful. Quotas create role models “Role models" are needed in unusual jobs to let women know that their options are wider than prevalent sex stereotypes now permit them to realize. A self—sustaining influx of women into nontraditional jobs will be triggered once enough women -- a number never specified — are in place. The VERA Institute of Justice argues that the lower felony arrest rate for female officers shows the need for more female officers to create an atmosphere in which females feel comfortable enough to do a better job.” Janet Richards puts the argument clearly: What we want to achieve is... an improve— ment aft/1r position ofammen until society i'sflri'r to them, and as a matter of fact probably the best way to achieve this is to appoint to positions of importance women who are rather less good at the work than the men who are in competition with them. As long as they are not such hopeless failures as to con- firm everyone’s ideas that women are not capable of any serious work, their holding ' those positions will be enough to make others set their sights higher, and make people in general more used to seeing women in former male preserves and expecting more of them.”' A variant of this argument in the NOW ami- cus brief in Ranker v. Goldberg” claimed that registering and conscripting women would im- prove their image and decrease the incidence of rape. Advocates of gender quotas have not pressed this argument with great enthusiasm. It rather conspicuously the possible conse- quences of inserting less—than—the—best candi- dates into positions on which lives depend (like surgery or piloting commercial airliners). It seems to assume that the differences between incompetence, competence, and excellence are for the most part trivial, and that most people ignores Affirmative Action could do most things pretty well if given the chance. Properly understood, furthermore, this argu— ment has nothing to do with equality of oppor— tunity. The creation of role models is not intended to guarantee women freedom equal to men’s to pursue the occupations they wish, which is how equality of opportunity is usually understood, but to induce women to want to pursue occupations they do not want (and whose pursuit would allegedly make them hap- pier than they are now). Not that there is any evidence for a role model effect of the appropri— ate sort; psychologists coined “role model” to refer to the function performed by parents in influencing the ego ideals of very young chil— dren, and ego ideals are formed before the age of five. But the most serious difficulty with the role model argument is this: Even if there were a demonstrable role model effect, and women would be happier (if not. freer) attempting non— traditional pursuits, and the damage done by placing incompetent women in important jobs was tolerable, the question would remain whether quotas were fair to the individual males bypassed in the process, males not them— selves responsible for women’s currently con- stricted aspirations. If quotas do men an injustice, the role model defense is unpersua— SlVC. Quotas (i3 pret‘cnri't'e measures This argument maintains that discrimination is, while illegal, so subtle, pervasive, and vicious that it must be stopped in advance: Another depressing topic at [the Congres— sional Black Caucus] was the Administra— tion's late—August announcement that it would sharply decrease the enforcement of federal regulations designed to prevent discrimination against women and against blacks and other minor— ities * a curtailment Representative Charles Range] . . . charged would be a signal to those in the private sector that they “need no longer worry about the government looking over their shoulders” and would in most affi rmative—action Affirmative Action cases be free to go back to indulging in the prejudices and biases that come naturally to many Americans.” It is frequently added that discrimination is too difficult to prove to be attacked on an individ— ual, case—wise basis. This argument, too, founders on the question of justice. Preventive coercion is justified only in emergencies. It is generally agreed that the government may prevent grave wrongs clearly about to be done (it can disrupt conspiracies) and more remote but potentially catastrophic possibilities, but must otherwise act after the fact. It would be regarded as impermissibly unfair to reduce the felony rate by incarcerating all eighteen—year—old males, since males who were never going to attack anyone would inevit— ably be swept along. To be sure, sex discrimin— ation is sometimes described as an evil of sufficient magnitude to warrant preventive measures too extreme to be developed else— where, but this supplementary argument must also await consideration of the issue of justice. The argument from preemption is also em— pirically vulnerable. To stop discrimination before it occurs by enforcing the Outcome that would obtain without discrimination presup— poses knowledge of what the nondiscriminatory outcome would be, and if that outcome is taken to be statistical proportionality, it is being as— sumed that the only possible causes of aggregate differences in outcomes are malign forces. This is the complete environmentalism which we have seen to be wholly untenable. There is a close connection between quotas conceived as preventive detention and the con— cept of institutional discrimination. Quotas are necessary, it is argued, because the very struc— ture of institutions and the unconscious as— sumptions that accompany them result in minorities and women being excluded from cer— tain activities. Still, in order for quotas to be an appropriate response, it must be demonstrated that the particular Blacks and women who gain admission to otherwise structurally discrimin— atory institutions would have been excluded but for quotas. After all, it cannot be assumed that structural discrimination discriminates against absolutely every member of every unprotected class. Similarly, it must be somehow demon- strated that the particular White males penal. ized by preventive quotas are just those Who would have benefited from institutional dis. crimination 7 we cannot just assume that every White male so benefits. Even if there is such a phenomenon as institutional discrimination, it does not follow that quotas are consistent with justice. Quota-s as indemnification We come to the arrays probandi: quotas are not only unjust, they are demanded by justice, for they give today’s Blacks and women the jobs they would have gotten had there been no sexual or racial discrimination in the past, judging today’s Blacks and women by sex- blind and race—blind merit standards unfairly disadvantages them by allowing past discrimin- ation to perpetuate itself. Quotas make whole today’s Blacks and women by “neutralizing the present competitive disadvantages cansed by those past privations”;m quotas compensate Blacks and women for the competitive abilities they would have had had their ancestors been treated properly. Reserving jobs for less quali— fied women and Blacks is fair to the bypassed, better-qualified W‘hite males, who would not have been better qualified in a nondiscrimina- tory world. To let better—qualified White males claim those jobs is to let them profit from wrong—doing, even if not their own. As for which White males have profited from the mis— treatment of which Blacks and females, it must be assumed that every male enjoys an unfair advantage over every Black and female: Surely every white person, however free of direct implication in victimizing non—whites, is still a daily beneficiary of white dominance 7 past and present... Though, of course, there are obvious and important differences, it omen too have been victimized as 'a 20 group. This final phase of the argument may seem gratuitous paranoia. but it is actually crucial. To use any other indicator of victimhood which merely correlates \\ith race or sex as a basis for preference 7 poverty, let us say 7 will entitle a poor White male, although a relatively rarer specimen, to the same preference as an equally poor Black woman. (And to call for affirmative action for Blacks or women to attack poverty, without claiming the support of just- ice, is still to call for the equally special treat~ ment of equally poor Whites, Blacks, men, and women.) Unless race and sex are in themselves the Stigmata of victimhood, racial and gender quotas are inappropriate instruments of com— pensation. . . . Compensatory Quotas for Women A compensation claim is a thought experiment in which we return the world to the moment when a wrong was done and imagine how the world would have evolved had the wrong not been done. What the injured party would have possessed in this ideal world is what he should possess in the real world; the difference between his two positions in the two worlds is what the wrong cost the injured party and what the tort- feasor owes him. Despite the obvious uncertain— ties that beset such reasoning, the courts are able to carry it out in limited contexts — but not merely by observing the truism that people deserve what they wrongfully lost. Five specific conditions must be met to establish a compen- sation claim: (1) injury must be shown; (2} the injured party must be identified; (3) the cost to the injured party must be established; (4) those who inflicted or profited from the injury must be identified. The complainant‘s loss cannot be restored at the expense of the innocent. More— over, whilc those who do not inflict a wrong may be compensatorily liable ifthey profit from it, they must profit from it Jirrt'tifjf. Ifa terrorist bomb detonated a half—mile away loosens a treasure hidden in someone’s ceiling, he does not owe the treasure to the terrorist’s victim. (5) Restitution must be feasible, and feasibilitv con— straints may dictate the replacement of what has been lost by an equivalent. Since the dancer cannot get back his mangled toe, the jury aWards him compensatory damages in the amount he would have earned in performance fees had the moving man not clumsily dropped Affirmative Action the piano on his foot. Indemnificatory quotas fail all five conditions; gender quotas far more completely than racial quotas. Was injury done? The beginnings of a case for compensating con— temporary Blacks can be based on the injuries done to their ancestors by slavery, segregation, and the lynch mob. No remotely comparable injuries have been done to women. Rape is occasionally cited as such an injury, but there is no evidence that rape adversely affects female acquisition of job skills. Because no palpable, physical injuries have been done to women, advocates of gender quotas are forced back on psychological injury supposedly done by sex role stereotyping. The most able defender of the compensation argument known to me is able to marshal only the following evidence of injury to women: “The feminist movement has convincingly documented the ways in which sexual bias is built into the information received by the young.”21 It scarcely needs repeating that sex stereo- types are no more than reports of the inevitable manifestations of innate sex differences. Stereo- types are true, and possess little independent power. But even supposing sex stereotypes baseless, it is moral lunacy to equate them with racial animosity. Within living memory, a Black man risked a heating or far worse for drinking from a Whites-only fountain. The feel— ings of an employer uncomfortable about put— ting a woman on the assembly line bears no resemblance to the hatred that led to what newspapers of the nineteenth century shame— lessly called “negro barbecues.’ No matter how frequently it is repeated, the comparison of the sufferings of women to those of Blacks remains offensive to reason. ) ”"110 was injured? W720 inflicted th...
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