By: David Edmonds
The Equality Bill is currently making its way through the two unequal chambers of the British parliament. It’s radical and wide-ranging and the debate about it has been heated, but the most interesting contribution has come from the upper chamber, the House of Lords. In a thoughtful speech, Bhikhu Parekh, a political theorist, advanced an argument in support of positive action. He said that in some circumstances one’s sex could in itself be a qualification for a post.
Take a hospital whose obstetrics and gynaecology department is all-male. Many women would like to be seen by a female gynaecologist, but there is none. A vacancy occurs. We have two candidates, a male and a female, with equal medical or academic qualifications and equal professional experience. The woman doctor could be appointed, either as a form of positive action, or by simply saying that the needs of the organisation require that her gender is an important part of the qualification itself. In other words, what is called positive action here is not simply an add-on in a situation where there is equality of qualification or experience, rather it is built into the structure of the assessment criteria themselves, so that she is appointed because she has an additional qualification, by virtue of her gender, which others do not have.
If women patients want to be treated by a female doctor, then being female becomes a criterion for doing the job well – so runs the argument. In many ways this is uncontroversial. The argument implies that the reaction of others (customers, patients, pupils etc) can be relevant in weighing up the suitability of candidates. And there are plenty of spheres in which we apparently have no issue with this. We think it acceptable that a swimwear manufacturer choose an attractive male or female model to exhibit its goods rather than a hideous gargoyle. The likelihood is that Beauty would encourage more potential shoppers to buy swimsuits than Beast.
For many jobs – probably for most – how others respond to a person is absolutely key to how well this person performs in his/her role. But if we allow the favourable reactions of others to count as a positive qualification, and the negative reactions to count against a candidate, we have to provide a way to deal with the following type of problem.
It may well be that shop customers are more likely to buy products from people of one race rather than another – from whites, say, rather than blacks – and for no rational reason. Can the shop owner then say that being a member of the preferred race is itself a job qualification? If we don’t think the shop owner can legitimately make that claim then we require some relevant distinction between the femaleness of the doctor as a job qualification, and the whiteness of the salesman.
Unfortunately, I don’t think that distinction is at all easy to draw.
I think you are looking at the wrong end of the problem of undesirable discrimination in hiring. There are really two problems to be addressed: (1) consumer preferences and (2) competition. The shop owner is worried about the first only if it affects the second. That is, the shop keeper fears that if he hires or keeps on a clerk of the wrong race, and a competitor does not, customers will flock to the competitor’s shop. The solution to this problem might be an ordinance requiring shops of that sort to hire without taking into account the applicant’s race. This will remove a competitive advantage and will discourage racist hiring.
The problem of the sex preference in hiring ob-gyns is different, I think, because the sex of the ob-gyn might affect medical outcomes. My wife prefers a female ob-gyn because she is more comfortable with going to and talking to a female ob-gyn. She also feels that male ob-gyns tend to be less sympathetic and under-treat women who, they feel, are “complainers”. The result of choosing a female over a male ob-gyn is probably greater communication and hence better diagnosis and treatment.
There is an intermediate case, in which discrimination is based on often-correct assumptions about the qualifications of persons of each sex. The problem comes down to (1) whether there are adequate means of eliminating the advantages of the average person of one sex over those of the average person of the other to make it possible to hire more of the other sex, without materially affecting the product or service of the hiring company; and (2) whether the cost of doing so is substantial (and who pays it). A good example is the hiring of firefighters. If the current demands on physical ability tends to exclude most females from competition for firefighters’ jobs, is there a way to adjust the task of a firefighter, perhaps by adding powered equipment or changing how the task is accomplished, to reduce substantially the effect of the greater physical strength of most males relative to most females? Another example is hiring police personnel.
I think there is an overlooked question here, which is why, in 2010, a hospital OB service would have only male doctors. Surely it can’t be the case that only men were qualified for the position in the past. Since many women are more comfortable with female OBs, and believe they get better, more compassionate care from female OBs, being female is a legitimate qualification for being hired, particularly in a hospital where there are NO other female OBs. The same might be said of a hospital with only female urologists — it might be legitimate to hire a male urologist, for those male patients more comfortable speaking to and being treated by a male doctor.
If a shop sells religious or culturally significant items, might it not be the case that it would be justifiable to employ persons with familiarity with the religion or customs? If such persons tend to be of a particular race or nationality, then it will be legitimate to hire on that basis. Likewise, since clerks in stores that sell women’s lingerie are in intimate contact with female customers, and male customers would assume that female clerks would have a better understanding of what wives/girlfriends might like, would it not be justifiable to hire female sales clerks rather then male? Context matters here. Surely a person of any race or sex is qualified to sell televisions and toasters. But it will not be the case that in every context, race or sex or religion is a suspect category.
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