This is “Racial Discrimination”, section 10.1 from the book Business Ethics (v. 1.0).
This book is licensed under a Creative Commons by-nc-sa 3.0 license. See the license for more details, but that basically means you can share this book as long as you credit the author (but see below), don't make money from it, and do make it available to everyone else under the same terms.
This content was accessible as of December 29, 2012, and it was downloaded then by Andy Schmitz in an effort to preserve the availability of this book.
Normally, the author and publisher would be credited here. However, the publisher has asked for the customary Creative Commons attribution to the original publisher, authors, title, and book URI to be removed. Additionally, per the publisher's request, their name has been removed in some passages. More information is available on this project's attribution page.
For more information on the source of this book, or why it is available for free, please see the project's home page. You can browse or download additional books there. You may also download a PDF copy of this book (20 MB) or just this chapter (5 MB), suitable for printing or most e-readers, or a .zip file containing this book's HTML files (for use in a web browser offline).
Toby Gerhart is a bruising running back. Coming out of college at six feet and 225 pounds, he was drafted by the Minnesota Vikings football team with their first-round pick in 2010. It was a controversial choice. His playing style is unorthodox: he runs standing almost straight up and doesn’t do much faking and cutting. Most NFL runners get low and slip away from tacklers. Gerhart chugs and blows through things.
That’s not Gerhart’s only distinction. In a league where running backs—almost all of them—are black, he’s white. On the days leading to the draft, Gerhart feared his skin color might be expensive. An anonymous quote had been circulating, suggesting that his position in the draft order could fall, bringing his paycheck down along with it: “One longtime NFL scout insisted that Gerhart’s skin color will likely prevent him from being drafted in Thursday’s first round. ‘He’ll be a great second-round pickup for somebody, but I guarantee you if he was the exact same guy—but he was black—he’d go in the first round for sure,’ the scout said.”Michael Silver, “Race Factors into Evaluation of Gerhart,” Yahoo! Sports, April 20, 2011, accessed May 31, 2011, http://sports.yahoo.com/nfl/news?slug=ms-gerhartstereotype042010.
As it turned out, the scout was wrong. But the question of race in sports had flared, and the media came to it. One story appeared on an MSNBC-affiliated website called theGrio.com. Writer John Mitchell pointed out that twenty-seven of the NFL’s thirty-two general managers (those ultimately responsible for draft-day selections) were white, and so, he asserted, it was “virtually impossible” that racism could work against Gerhart.John Mitchell, “White Running Back’s Draft Status Won’t Be Hamstrung by Race,” TheGrio.com, April 22, 2010, accessed May 31, 2011, http://www.thegrio.com/opinion/white-running-backs-draft-status-wont-be-hamstrung-by-race.php.
John Mitchell is black. In fact, if you go to theGrio.com’s contributor page, you’ll find that, as a rough estimate, 90 percent of the website’s writers are black, a number that’s far, far out of proportion with the global percentage of black writers out there. The disproportion, however, would be less surprising for anyone who’d read the description the site presents of itself: “TheGrio.com is devoted to providing African Americans with stories and perspectives that appeal to them but are underrepresented in existing national news outlets. TheGrio features aggregated and original video packages, news articles, and blogs on topics from breaking news, politics, health, business, and entertainment, which concern its niche audience.”“About theGrio,” TheGrio.com, accessed May 31, 2011, http://www.thegrio.com/about.
On that same page, surfers are directed to a video story about theGrio.com produced by NBC New York, which is a station aimed at the general market, not theGrio.com’s niche audience. The story tells of theGrio.com’s origin, and in an interview with the website’s founder, he remarks that his contributors are very diverse: “We have conservatives, liberals, old folks, young folks, rich folks, poor folks, politicians and plain folks.”“About theGrio,” TheGrio.com, accessed May 31, 2011, http://www.thegrio.com/about.
The NBC story also informs us that the idea for creating a site that aggregated news stories involving the black community was taken to NBC executives who agreed to sponsor the website. We don’t learn which specific NBC execs received the proposal, but a quick check of the network’s directors and programming directors and so on leads to the strong suspicion that most were white.
Questions about racial discrimination are tangled and difficult. Here are a few of the knotted uncertainties arising from the Gerhart episode and its treatment in the press:
Racial discriminationIn a business environment, treating individuals differently from others for reasons of race and at the expense of professional merit. in the economic world can be defined in three steps:
The first step—someone has to suffer or benefit from the discrimination—is important because without that, without something tangible to point at, you’re left making an accusation without evidence.
The second step—discrimination is based on race as opposed to job qualifications—is critical because it separates the kind of racism we typically consider vile from the one we normally accept as reasonable. For example, if actors are being hired to play Toby Gerhart in a biography about his life, and all the finalists for the role are white guys, well, the casting company probably did discriminate in terms of race, but this particular discrimination overlaps with qualifications helping the actor play the part. This contrasts with the alleged racial discrimination surrounding the Gerhart draft pick: the suspicion that he couldn’t be very good at running over other people with an oblong leather ball cradled in his arm because his skin is white. If that’s a baseless premise, then it follows that within this definition of racism, theGrio.com’s claim that Gerhart has no reason to fear unfair discrimination because so many NFL general managers are white is, in fact, wrong. Whites can exhibit racial discrimination against other whites just as blacks can discriminate against blacks and so on.
The difference between discriminating in favor of white males to play Gerhart in a movie and discriminating against white males as running backs is more or less clear. Between the extremes, however, there are a lot of gray areas. What about the case of hiring at theGrio.com? Just looking at the list of contributors, it’s hard to avoid wondering whether they’re picking people based on skin color as opposed to writing ability. On the other hand, since theGrio.com explicitly states that its mission is to tell stories affecting the black community, a case could be made that black writers are more likely to be well qualified since it’s more likely that their lives significantly connect with that community. It’s not, in other words, that contributors are hired because they’re black; it’s the fact that they’re black that helps them possess the kind of background information that will help them write for theGrio.com.
The definition’s third step—an employment decision rests on unverified or unreasonable stereotypes or generalizations about members of a racial group—is also important. Staying on theGrio.com example, there’s a difference between finding that in specific cases contributors well suited to the site also tend to be black, and making the stronger generalization that whites, Asians, Hispanics, and so on are by nature incapable of understanding and connecting with the realities covered by the web page. This second and generalizing claim eliminates the opportunity for those others to participate.
Finally, questions about racial discrimination center on purely racial divisions but overlap with another distinction that can be similar but remains technically different: ethnicity.
Race concerns descent and heredity. It’s usually visible in ways including skin, hair, and eye color. Because it’s a biological trait, people can’t change their race. Ethnicity is the cluster of racial, linguistic, and cultural traits that define a person as a member of a larger community. The Hispanic ethnic group, for example, contains multiple races, but is unified by common bonds tracing back to Spanish and Portuguese languages and customs. Though it’s not common, one’s ethnicity may change. A girl born in Dublin to Irish parents but adopted by an Argentine family living in East Los Angeles may ultimately consider herself Hispanic.
The US Census Bureau divides individuals in terms of race and, with a separate question, ethnicity. It’s not unusual, however, for the two categories to be mixed in a business environment. Many organizations place Hispanic on the list of racial options when measuring their workforce’s diversity. In the real world, the line between race and ethnicity is blurry.
Questions about racism swirl around the Toby Gerhart episode, but it’s equally clear that getting a firm grip on which people and institutions involved actually are racist is difficult. Nearly all running backs in the NFL are black, and at least one scout presumes that racial discrimination in favor of that color is an active part of the reason. But there could also be social and cultural reasons for the imbalance. Maybe young black men are more likely to devote themselves to football because they see so many successful role models. Or it may be that players—regardless of their race—come from a certain economic class or geographic part of the country where, in fact, blacks happen to be the majority. More explanations could be added. No one knows for sure which is right.
On the other side, just as it’s prudent to be careful when using words like racist and pointing fingers, there is real evidence indicating wide and deep currents of racism in US business life. Generally, there are three evidence types:
One experimental indication of racismEvidence of racism in society gleaned from planned experiments. in hiring comes from economist Marc Bendick. He paired applicants for gender and appearance, loaded them with similar qualifications, and sent them to New York City restaurants in search of waiter jobs. The only notable difference between the two applicants was their race; whites, blacks, Asians, and Hispanics participated. After 181 restaurant visits in which the two applicants appeared within an hour of each other, the results were tabulated. Because four racial groups were investigated there are a lot of cross-tabs, but the basic finding was simple: with everything else as equal as possible, whites were significantly more likely to be given information about job duties, receive second interviews, and be hired. According to Bendick, “The important thing is that we repeated the experiment dozens of times so that we can be pretty sure when a pattern emerges it really is differences in employer behavior and not a random effect.”“City Room,” New York Times, NY/Region, March 31, 2009, accessed May 31, 2011, http://cityroom.blogs.nytimes.com/2009/03/31/racial-bias-seen-in-hiring-of-waiters.
In terms of statistical evidence of racismEvidence of racism in society gleaned from statistics., racial disparities are significant in many areas. Income is not atypical. According to the US Census Bureau, in 2006 the median personal income for Asians was $36,000; for whites $33,000; for blacks $27,000; and for Hispanics $24,000.U.S. Census, “Table PINC-03. Educational Attainment—People 25 Years Old and Over, by Total Money Earnings in 2005, Work Experience in 2005, Age, Race, Hispanic Origin and Sex,” in Current Population Survey (2006). The disparities contract significantly—but not all the way—when you adjust for education levels. Surveying only those who hold bachelor’s degrees yields these numbers: white, $44,000; Asian $42,000; black $42,000; Hispanic $37,000. Going back a little more than a decade, the federal Glass Ceiling Commission produced a set of striking statistics. According to its study, 97 percent of the senior managers of Fortune 500 companies are white (and 95 percent are male). That compares with a broader economic reality in which 57 percent of the working population is female, or minority, or both.George E. Curry, “Race, Gender and Corporate America,” District Chronicles, April 24, 2005, accessed May 31, 2011, http://www.georgecurry.com/columns/race-gender-and-corporate-america.
Episodic evidence of racismEvidence of racism in society gleaned from specific, unplanned occurrences. in business life is real-world episodes where decisions seem to have been made based on racial distinctions. The venerable clothier Abercrombie & Fitch, which once outfitted JFK and now sells heavily to collegians, garnered considerable (and unwanted) media attention when Jennifer Lu, a former salesperson at the store, took her story to the CBS news program 60 Minutes. According to Lu, she was fired soon after corporate executives patrolled the store where she worked and informed the store’s manager that the staff was supposed to look like the models in the store’s display posters. If you’ve been in Abercrombie, you may remember that they tend to have the blonde, blue-eyed, football team captain look. Like Toby Gerhart. In an interview with 60 Minutes, Anthony Ocampo says, “The greeters and the people that worked in the in-season clothing, most of them, if not all of them, were white. The people that worked in the stock room, where nobody sees them, were mostly Asian-American, Filipino, Mexican, Latino.”Rebecca Leung, “The Look of Abercrombie & Fitch,” 60 Minutes, November 24, 2004, accessed May 31, 2011, http://www.cbsnews.com/stories/2003/12/05/60minutes/main587099.shtml.
A lawsuit against the store was settled out of court when Abercrombie agreed to pay almost $50 million to negatively affected employees and beef up their minority hiring. They also stated that their custom of seeking out new sales staff at predominantly white fraternities and sororities should be modified.
When discriminationIn a business environment, treating individuals in terms of stereotypes or unverified generalizations and at the expense of professional merit. exists in a business environment, it can be distinguished into several categories. First, there’s a division between institutionalDiscrimination embedded in an organization’s culture. and individual discriminationDiscrimination expressed by an individual within an organization that may not share the outlook.. Institutional discrimination is exemplified in the Abercrombie lawsuit. The preference given to white, football-player types wasn’t one person at one store; it was part of the corporate culture. Managers were instructed to include a certain look while excluding others, and presumably their job depended on their ability to meet that demand. The manager, in other words, who fired Jennifer Lu may (or may not) have thought it was a terrible thing to do. Regardless, the manager’s personal feelings had nothing to do with the firing. Instructions were provided by higher-ups, and they were followed.
Individual racial discrimination, on the other hand, can occur in any organization no matter how determined leaders may be to create an organizational culture prohibiting it. The NFL, for example, established a requirement (commonly called “the Rooney Rule”) in 2003 requiring teams to interview minority candidates for football operations posts. It’s part of a broader effort by the league to ensure against racial discrimination. Still, this comes from a 2005 article by Sports Illustrated writer Dan Banks: “One Asian stereotype concerns size. A NFL personnel man told me on Thursday the problem with Chang is ‘the kid is short.’ But when I noted that Chang was 6-1½ and 211 pounds, and taller than San Diego’s Drew Brees—the talent scout replied: ‘But he plays short. And he’s 211, but he looks frail.’”Don Banks, “Hurdles to History: From Size, Stereotypes, System, Chang Fights Skeptics,” Inside the NFL (blog), Sports Illustrated, April 15, 2005, accessed May 31, 2011, http://sportsillustrated.cnn.com/2005/writers/don_banks/04/15/chang/index.html.
A second broad distinction within the category of racial discrimination divides isolatedAn episode of discrimination not indicative of an individual’s or organization’s standard practice. from regularizedRecurrent episodes of discrimination indicative of an individual’s or organization’s standard practice. incidents. An isolated case of racial discrimination is a one-time deal. Regularized incidents are repeated occurrences fitting into a pattern.
The final distinction cuts through all those mentioned so far; it divides unintentionalDiscriminatory acts stemming from unrealized prejudice. from intentional discriminationDiscriminatory acts stemming from explicitly realized prejudice.. Take as a general example a seventy-year-old who grew up in a time and place where racism was normal and accepted almost without objection. For someone coming from those circumstances, it’s hard to imagine that from time to time some of that old way of seeing the world isn’t going to slip through. Of course the fact that racism is unintentional doesn’t make it less racist, but just like in everything else, there’s a difference between doing something without thinking about it and doing something with premeditation and full understanding.
A complex web of legal precedents and civil rules apply to racial discrimination. At the center, the Civil Rights Act of 1964Federal law banning discrimination in terms of race, color, religion, sex, or national origin. covers all employers in both private and public organizations that have fifteen or more workers. The act’s crucial language can be found in Title VII, which confronts a host of discriminatory practices:
It shall be an unlawful employment practice for an employer (1) to fail or refuse to hire or to discharge any individual, or otherwise discriminate against any individual with respect to his compensation, terms, conditions or privileges of employment, because of such individual’s race, color, religion, sex, or national origin; or (2) to limit, segregate or classify his employees or applicants for employment in any way that would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin.Civil Rights Act of 1964 (Pub. L. 88-352, 78 Stat. 241, enacted July 2, 1964).
You notice that employee is referred to as “his,” not “his or hers,” and employers are also “his,” not “his or hers.” That’s not a snarky comment; it’s just an example of how treacherous the issues of unfair discrimination are. Even those with the best intentions find it difficult to pull completely away from what others may perceive as signs and appearances of unfair practices.
The difficulty partially explains why the Civil Rights Act has been repeatedly modified and supplemented. The Equal Employment Opportunity Act of 1972 set down new rules and created a powerful commission to enforce and report on the status of antidiscriminatory efforts across the nation. These reports have played a role in many civil lawsuits brought by individuals or groups against employers suspected of discriminatory treatment.
Additional requirements—some involving affirmative action (to be discussed further on)—were compiled for companies doing business with the US government. While these measures don’t bind organizations operating independently of government contracts, the pure size and spending power of Washington, DC, does send the measures far into the world of business.
So the legal and governmental bulwark set up against racial and other types of discrimination stands on four legs:
It’s difficult to locate a mainstream ethical theory for workplace life that can be twisted to support racial discrimination as it’s defined in this chapter. The arguments mounted against it generally fall into three groups:
FairnessThe argument that discrimination is wrong because it treats people unequally for reasons not involving merit., as Aristotle defined the term, is to treat equals equally and unequals unequally. People, that means, are to be treated differently if and only if there are job-pertinent differences between them. Burly men should be favored over thin ones when you’re hiring an offensive lineman in the NFL, but not when you’re looking to contract a coach.
The philosopher John Rawls advocated an ingenious way to, at least as a thought experiment, promote fairness. He proposed that individuals imagine the reality surrounding them as shaken up, with people pulled from their situation and randomly inserted into another. So if you’re a white guy in college looking for a summer job, you probably don’t mind too much that Abercrombie & Fitch is looking for your type more than any other. But if you imagine getting shaken up with your black, Asian, and Hispanic classmates and you don’t know beforehand what race you’re going to get assigned, then maybe you think twice about whether Abercrombie should be allowed to hire whites so pervasively. This is called a veil of ignorance testImagining how you’d like society to be if you don’t know beforehand where you’ll be placed in it and using that image to test current reality.: you need to imagine how you’d like society to be if you don’t know beforehand exactly where you’ll be placed in it. The imagined reality, presumably, will be one where everyone gets a chance that’s fair.
Rights arguments against discriminationThe argument that discrimination is wrong because as humans we’re endowed with a certain dignity and freedom that is abridged by discrimination. typically depart from the premise that as humans we’re all endowed with a certain dignity and freedom that abides regardless of circumstances. These attributes are an essential part of what we are: they’re like pregnancy in the sense that you can’t have them halfway. You’re either pregnant or you’re not; you either possess full dignity and freedom just like everyone else or you don’t. If all of us do possess dignity and freedom, then it’s a short step to see that discrimination is an affront to them. Treating one group differently than another is to wrongly claim that they have different levels of basic dignity. Or, from the viewpoint of freedom, discrimination grants one group more freedom in the world than another. Again, the argument here is that dignity and freedom can’t be measured or parceled out; as essential rights, everyone must hold them perfectly, and they must be respected fully.
The utilitarian argumentThe argument that discrimination is wrong because it fails to maximize our collective happiness and welfare. holds that we ought to act in the business world in a way that maximizes our collective happiness and welfare. If that’s right, then we all have an interest in ensuring that the most qualified people occupy the various working slots in our economy. Possibly the examples of professional football and Abercrombie don’t lend themselves very well to this argument, but if we move to other professions, the inadvisability of discrimination becomes clearer. In the field of medical research, we wouldn’t want to lose a breakthrough because the one person who’d have the idea that could cure cancer happens to be Hispanic. The argument, therefore, is simply that as a society we benefit when each individual member is allowed the maximum opportunity to contribute.
While few argue that discrimination is good or justified, there are equally few who deny that some situations do, in fact, allow for discrimination (the actor hired to play Martin Luther King is black, the person hired to monitor the women’s locker room is a woman). Between these extremes there stretches a tense set of debates about where the line gets drawn. When is some limited discrimination acceptable?
The lawsuit against Abercrombie & Fitch alleging that the company hires a disproportionately white sales force and favors white employees for the best positions never went to court. Former employee Jennifer Lu turned up on 60 Minutes, CBS news started running stories about how Asians and Mexicans were confined to the stockroom, and with the bad publicity storming, Abercrombie opted to settle the matter and move on. That was probably a good business decision.
Others, however, wanted to push the issue out to see the ethical consequences. One of those was lawyer and talk show host Larry Elder. He made this point: “Abercrombie & Fitch ought to have the right to set their own policies. Look, there’s a restaurant called Hooters. Hooters requires you to have certain kinds of physical accoutrements, and I think people understand that. Should they have a right to hire waitresses because they want to attract a certain kind of clientele who want to ogle at the waitresses? I think so.”Rebecca Leung, “The Look of Abercrombie & Fitch,” 60 Minutes, November 24, 2004, accessed May 31, 2011, http://www.cbsnews.com/stories/2003/12/05/60minutes/main587099.shtml.
Closing off the argument with respect to Abercrombie & Fitch, the point is that Abercrombie isn’t selling only clothes but also a look, an image, a kind of social message. And that message is crystallized by the kind of people they hire to walk around their showrooms and smile at consumers: white, attractive, fit, upper-middle-class. Not coincidentally, one of the company’s subsidiary lines of clothes is called Prep School. And if that’s what they’re selling—not just clothes but a social message—they should be able to hire the best possible messengers, just as Hooters is allowed to hire the kind of waitresses their clientele wants to ogle and just as the movie producer is allowed to hire a black actor to play Martin Luther King. There’s no racial discrimination here; it’s just business. At bottom, it’s no different from theGrio.com, which is selling a specific product and image that naturally leads to an almost entirely black organization. In every case, it’s not that the business starts out with a certain racial (or gender) type that they’ll contract; it’s that they start out with something they want to sell, and as it happens a certain racial type lends itself to the business.
There are two types of responses to this argument. The first is to push back against the premise that the one racial type really does serve the business’s interest better than the others. Rebecca Leung, the CBS reporter for the Abercrombie & Fitch case, shapes her story this way. The idea, Leung asserts, of prep schools and the all-American pursuit of upper-middle-class life that Abercrombie tries to represent belongs equally to all races. There’s no justification, Leung leads viewers to believe, for associating that ideal with a skin color. That’s why her report ends this way:
“All-American does not mean all-white,” says Lu.
“An all-American look is every shade,” Lueng asks.
“Yes, absolutely.”Rebecca Leung, “The Look of Abercrombie & Fitch,” 60 Minutes, November 24, 2004, accessed May 31, 2011, http://www.cbsnews.com/stories/2003/12/05/60minutes/main587099.shtml.
The other kind of response to the argument that Abercrombie’s business model lends itself to hiring whites is to concede the point but then to insist that it doesn’t matter. Because society’s general welfare depends on rallying against poisonous discrimination, it should be avoided in every possible case, even those where there might be some rational, business-based reason for engaging in the practice. Abercrombie, the argument goes, may have good reason for seeking out white sales staff. But even so, the larger social goal of developing a color-blind society requires Abercrombie’s participation, and the company ought to be required to participate even against its own short-term economic interest.
For historical reasons in the United States, discrimination in the reproachable sense of the word comes into sharpest focus on questions concerning race. Any distinguishing characteristic, however, can be levered into a scene of unfair marginalization. Women, for example, have suffered mistreatment in ways analogous to the kind discussed here for racial groups. And it doesn’t stop there. Age, national origin, religion, weight, whatever, all of us have features that can be singled out by others and then converted into favoritism or negative prejudice in the workplace. Somewhere there’s probably a high executive who’s convinced that individuals with knobby knees can’t do good work. In ethical terms, all these cases may be understood and handled as the question of race has. That is, by thoughtfully determining whether the identifying feature—the skin color, gender, age, religion, weight, the knobbiness of the knees—actually has a bearing on the person’s ability to successfully accomplish the tasks fitting the job.