is controversial, but there is at least the need to require hiring officers to
demonstrate good faith efforts to find the best candidates.
We have found that preferential treatment on the basis of race, sex, or
similar group membership raises serious ethical questions and is open to
the charge that it fails to respect persons in fundamental and important
ways. We have suggested, however, that if preferential treatment is reformulated in ways that can apply across racial and other group lines, while
still taking into account the special burdens facing members of victimized
groups, it may avoid the charge of reverse discrimination. In our view, no
individual should be sacrificed on the altars of egalitarian or compensatory
ideals; and surely not when less obtrusive alternatives are available. The
challenge posed by the reverse discrimination controversy is to promulgate
rectificatory policies which acknowledge the force of claims to redress while
avoiding arbitrary or inequitable treatment. Justice and equality demand
Allan Bakke vs. The Regents of the University of California, U.S. Supreme Court, 1978.
Actually, the issue of what counts as nondiscrimination is more complex than the text
indicates. Depending upon how one wants to define "discrimination," race, religion, sex, and
ethnic background arguably sometimes can be applied in nondiscriminatory ways. Thus, if
one goes to a rabbi for information about Jewish religious practices, hires a black actor to play
the part of a black in a movie or selects only women to play on a college women's basketball
team, then, arguably, one is not discriminating in any invidious way. So, more precisely, a
selection process is nondiscriminatory if it takes race, religion, sex, or ethnic background into
account only when they are relevant to the qualifications of applicants. When such factors are
relevant, or when the purpose of a job or institution is itself discriminatory, are matters for
further discussion. While these issues are of importance, they are not directly relevant to our
own discussion and so can be ignored in what follows, unless specifically mentioned.
This point has been made by
J. L. Cowen in his paper "Inverse Discrimination," Analysis, Vol 33, No. 1 ( 1972): pp. 10-12.
At least, those who assign the costs do not base their assignment on claims that those
disadvantaged actually have discriminated.
Such a point is suggested by Judith Jarvis Thomson in her paper, "Preferential Hiring," Philosophy & Public Affairs, Vol. 2, No. 4 ( 1973) p. 383 and is criticized by Robert K. Fullinwider
in his book, The Reverse Discrimination Controversy ( Totowa, N.J.: Rowman and
Littlefield, 1980) pp. 37-42.
For discussion of a similar case, see
Fullinwider, p. 39.
The next four paragraphs of this section are reprinted from
Robert Simon, "Preferential Hiring: A Reply to Judith Jarvis Thomson," Philosophy & Public Affairs, Vol. 3, No. 3,
( 1974), pp. 312-21, copyright © 1974, Princeton University Press, reprinted by permission of Princeton University Press.