PHI2043S 2023

Week 5: Affirmative Action

OVERVIEW OF THIS WEEK’S
MATERIAL
• Reading: Chapter 10 of Business Ethics and Other Paradoxes
• Key concepts and historical context
• Belief compensation / compensating for disadvantage
• Central argument against AA: the unequal opportunities argument
• Breaking barriers
• Increased welfare argument
• Combined argument
• Affirmative action as redress
• Compensatory redress
• Rectificatory redress
 THE EMPLOYMENT EQUITY
ACT
“No person may unfairly discriminate, directly or
indirectly, against an employee in any employment
policy or practice, on one or more grounds including
race, gender, pregnancy, marital status, family
responsibility, ethnic or social origin, colour, sexual
orientation, age, disability, religion, HIV status,
conscience, belief, political opinion, culture, language
and birth” 2(6)
 THE EMPLOYMENT EQUITY
ACT

“It is not unfair discrimination to promote affirmative

action consistent with the Act or to prefer, or
exclude, any person on the basis of inherent job
requirement.”
• Designated groups: “black people” (Africans,
Coloureds and Indians), women and people with
disabilities
 A HISTORY OF UNJUST
LEGISLATION
• Natives Land Act, 1913
• Group Areas Act, 1950
• Bantu Education Act, 1953
• Extension of University Education Act, 1959
• job reservation
• black people denied political rights
• Population Registration Act, 1950
 A HISTORY OF UNJUST
LEGISLATION
• These were injustices against black people alive at
the time
• They have also heaped a legacy of disadvantage
upon many black people in the present day
 A HISTORY OF UNJUST
LEGISLATION
Racist unjust laws of the past

• Disparities of wealth accumulation

• Geographical apartheid
• Disparities of social and cultural capital
• Psychological legacy of apartheid
HISTORY OF UNJUST LEGISLATION
AGAINST WOMEN
• Being under male rule (SA Marital Power until 1984/1988,
some women 2000)
• Unequal property rights (home-ownership in parts of rural
SA not until 2010)

Current injustices include:

• Offensive and harmful assumptions around gender
• Unfair (sometimes illegal) employment practices
• Sexual harassment (including in the workplace)
 EMPLOYMENT EQUITY ACT

“Affirmative action measures are ... intended to

ensure that suitably qualified employees from
designated groups have equal employment
opportunity and are equitably represented in all
occupational categories and levels of the workforce.”
EMPLOYMENT EQUITY ACT
"Such measures must include:
• identification and elimination of barriers with an
adverse impact on designated groups;
• making reasonable accommodation for people from
designated groups;
• retention, development and training of designated
groups (including skills development); measures which
promote diversity; and
• preferential treatment and numerical goals to ensure
equitable representation. This excludes quotas.”
 VARIETIES OF AFFIRMATIVE ACTION

• OUTREACH
• TIE-BREAKER
• STRONG PREFERENCE
• QUOTA
 “COMPENSATION FOR
DISADVANTAGE”
Or belief compensation.
This phrase is AMBIGUOUS:
(1) Compensation as restitution when somebody has
been wrongfully harmed
 “COMPENSATION FOR
DISADVANTAGE”

This phrase is AMBIGUOUS:

(1) Compensating (adjusting) for relevant factors when
interpreting what someone’s achievements say about
them
 “COMPENSATION FOR
DISADVANTAGE”
The same school-leaving grade means something
different in the case of:
(a) Someone who has experienced extreme
educational disadvantages
(b) Someone who has had all educational privileges
and no disadvantages
“Our unequal education system is not a fair fight, it’s an ambush”
Janine Welby-Solomon (6 September 2022)
 “COMPENSATION FOR
DISADVANTAGE”
• Race, gender or disability status (sometimes also
nationality, sexual orientation, religion, political
views, ethnicity, language, family assets) MAY be
good proxies for educational disadvantage
• This is not affirmative action because it does not
involve giving any applicants PREFERENCE, just
interpreting their grades correctly
 DOES AFFIRMATIVE ACTION
VIOLATE THE PRINCIPLE OF
EQUAL OPPORTUNITY?
P1 It is morally wrong to give people unequal
opportunities to hold a job or office
P2 Affirmative action gives people unequal
opportunities to hold a job or office Therefore:
C Affirmative action is morally wrong
 EQUALITY OF OPPORTUNITY

(a) Formal equality of opportunity

There should be no legal barrier preventing
anyone from applying for the job or office they
aspire to
(b) Substantial equality of opportunity
No one should face any social barrier preventing
them from becoming qualified for whatever job
or office they aspire to
 DOES AFFIRMATIVE ACTION
VIOLATE THE PRINCIPLE OF
EQUAL OPPORTUNITY?
P1 It is morally wrong to give people unequal
opportunities to hold a job or office
P2 Affirmative action gives people unequal
opportunities to hold a job or office Therefore:
C Affirmative action is morally wrong
 OBJECTING TO PREMISE 2

Affirmative action may break down some of the

social barriers preventing individuals from becoming
qualified for and applying for the jobs they aspire to
• Societal prejudice = social barrier:
• Overt racism/sexism
• Aversive racism
• Internal psychological barriers
When extremely high-achieving, highly qualified
individuals from designated groups, who outshine
the competition and are easily the most qualified
candidate for the job, occupy visible leadership
positions, this can:
• BREAK DOWN EXTERNAL SOCIAL BARRIERS
• PROVIDE SOCIAL ROLE MODELS (ERODING
INTERNAL BARRIERS)
 OBJECTING TO PREMISE 2

Affirmative action may break down some of the

social barriers preventing individuals from becoming
qualified for and applying for the jobs they aspire to
by systematically encouraging the generation of
more role models who challenge internal and
external social barriers
 OBJECTING TO PREMISE 2

Affirmative action may break down some of the

social barriers preventing individuals from becoming
qualified for and applying for the jobs they aspire to
• Societal prejudice
• Overt racism/sexism
• Aversive racism
• Internal psychological barriers
 PROBLEMS?
• Do role models need to be the same race/sex in
order to be effective?
• Does the possibility of being a beneficiary of AA
undermine the self-esteem of best qualified
candidates from designated groups when they are
hired?
• If candidate from designated group is less-qualified,
will they reinforce negative stereotypes?
 DOES AFFIRMATIVE ACTION
VIOLATE THE PRINCIPLE OF
EQUAL OPPORTUNITY?

P1 It is morally wrong to give people unequal

opportunities to hold a job or office
P2 Affirmative action gives people unequal
opportunities to hold a job or office Therefore:
C Affirmative action is morally wrong
 OBJECTING TO PREMISE 1

Equality of opportunity, as generally understood,

doesn’t mean literally that we should all have an
equal chance of getting whatever job or political
office we aspire to
 OBJECTING TO PREMISE 1

Equality of opportunity, as generally understood,

involves giving jobs to those best able to do them
(not to relatives of the president, members of one
‘caste’ or ‘race’, members of one sex)
• WHY?
This leads to much greater social welfare
 OBJECTING TO PREMISE 1

So really equality of opportunity, as generally

understood, means:
ABILITY SHOULD DETERMINE EMPLOYMENT
(because that makes life better for all of us) and
within this framework no one should be given
special treatment
 OBJECTING TO PREMISE 1

• Equality of opportunity is based on:

The requirement that people who apply for jobs
etc. should be treated CONSISTENTLY within a
system which furthers valuable societal goals.
Such goals include:
• OVERALL WELFARE
• JUSTICE
 OBJECTING TO PREMISE 1

Many believe some degree of affirmative action can

serve the same purpose as “careers open to talents”

DIVERSITY àGREATER OVERALL WELFARE

 DIVERSITY
Confrontation of opinions
• More truth, more understanding of truth
Springs of creativity
• Innovative hypotheses or solutions to problems
spring not just from education/training but from
our experience, culture, background so more
diversity = better at problem-solving
Responsibility
• In a context where advantaged and disadvantaged
people deliberate together, the former are more
careful not to simply repeat in-group favouring or
out-groups stigmatising rationalisations, so more
diversity = better at problem-solving
 OBJECTING TO PREMISE 1

Also, many believe some degree of affirmative action

can serve the same purpose as “careers open to
talents”
• DIVERSITY à GREATER OVERALL WELFARE
• DIVERSITY à BETTER SERVICE DELIVERY TO
COMMUNITIES
 AFFIRMATIVE ACTION AS
REDRESS
• Backward-looking vs. forward-looking justifications
of affirmative action
• To make redress to somebody is to do something
for them to make up for treating them badly in the
past
 AFFIRMATIVE ACTION
AS REDRESS
Compensatory redress
• When someone wrongfully harms you, they ought
to give compensation which brings your level of
welfare up to what it would have been in the
absence of the wrongful harm
• Affirmative action can do this (completely or
partially) in some cases
• But sometimes it benefits those who have been
harmed least (“the least disadvantaged of the
disadvantaged”)
 AFFIRMATIVE ACTION AS
REDRESS
Rectificatory redress
• Redress is not JUST about compensating for harm,
restoring lost welfare
• If you do something very bad to someone, but for some
reason it doesn’t harm them, that doesn’t mean you
didn’t do something wrong
• Often a verbal apology is not enough in the case of a
serious wrong
• We often do something (something the “opposite” of
the wrongful act) to MAKE AMENDS
 AFFIRMATIVE ACTION AS
REDRESS
Rectificatory redress
• In some cases the state can be seen as doing
something to make amends for a serious injustice,
when it implements an affirmative action policy
• People owed amends in this sense include people
on the receiving end of the injustice, even if they
weren’t HARMED
 AFFIRMATIVE ACTION
A policy of affirmative action might aim to achieve
several goals at once, e.g.:
• Some compensation for wrongful harm
• Rectification of some wrongs (e.g. disadvantaging
in employment and education)
• Achieving more substantial equality of opportunity
in the future
• Achieving more social welfare through diversity