We have a new APA anti-discrimination policy that attempts to settle it that schools that prohibit same-sex sexual activity are in violation of the policy. Here is a really serious problem with the policy. Suppose George is a member of Westboro Baptist Church (for those who don’t know about it, it’s a virulently anti-gay congregation–and that’s by far an understatement, as is indicated by their URL which I shall not reprint but which you can see if you google for them). George applies for the position of chair of a philosophy department at a state school, and expressly states during the interview that if appointed he would, under all possible circumstances, do his utmost to block the hiring of any gay faculty. It is clear that he ought to be dismissed as a candidate there and then, since he is committed to conduct that is unprofessional in the institutional context he is a candidate for. However the APA policy appears to prohibit dismissing George from one’s list of candidates.
Here’s why. The relevant part of the policy is:
The American Philosophical Association rejects as unethical all forms of discrimination based on race, color, religion, political convictions, national origin, sex, disability, sexual orientation, gender identification or age, whether in graduate admissions, appointments, retention, promotion and tenure, manuscript evaluation, salary determination, or other professional activities in which APA members characteristically participate. This includes both discrimination on the basis of status and discrimination on the basis of conduct integrally connected to that status, where “integrally connected” means (a) the conduct is a normal and predictable expression of the status (e.g., sexual conduct expressive of a sexual orientation) or (b) the conduct is something that only a person with that status could engage in (e.g., pregnancy), or (c) the proscription of that conduct is historically and routinely connected with invidious discrimination against the status (e.g., interracial marriage). (Emphases added. -ARP)
Thus, the policy prohibits discriminating against George for his adherence to the tenets of Westboro Baptistry or acting in ways that are “a normal and predictable expression” of his adherence. But it is extremely plausible that doing one’s best to block the hiring of gay faculty is “a normal and predictable expression” of being a Westboro Baptist (for the sake of my Baptist friends, I should note that I take it that “Westboro” is a non-factive modifier like “fake” or “ex-“). Therefore, the committee cannot discriminate against George on the basis of his unwillingness to comply with university policies that, we may suppose, prohibit discrimination against gays.
The irony is that the very conduct which the policy was intended to eliminate becomes protected by the policy.
Examples can be multiplied. Consider a member of a white supremacist religion who promises to do his best to work against non-white colleagues. Or for a more funny example, consider a member of an obscurantist religion opposed to the study or teaching of philosophy. He has no knowledge whatsoever of philosophy and no willingness to teach or do research therein. Nonetheless the maintenance of ignorance cannot be grounds of discrimination because it is a form of conduct (he actively stops his ears whenever anyone talks philosophy; in any case “conduct” is to be understood widely, since “pregnancy” is one of the examples given in the policy) “integrally connected” with the religious status. Or consider that political convictions are one of the listed statuses, and think about the anarchist whose political views are “naturally expressed” in the violent overthrow of the president, whether of the United States or of the university.
Now consider how one might defend the policy against these objections. One might say that it is permissible for the institution to require that faculty perform their institutional duties. The religiously-motivated ignoramus and bigot, as well as the politically-motivated person seeking the violent overthrow of the university president (but perhaps not the one seeking the overthrow of the president of the U.S.) are unwilling ot perform their institutional duties. However, if this route is taken, then the policy is trivialized to a significant degree. For instance the conservative Christian school can simply (and sincerely) say that it is one of the duties of the faculty member to model, for the benefit of the students, the Christian sexual morals that its denomination believes in.
A different defense would be to say that some behaviors, like discriminating against gay colleagues, are so unnatural that they are not a “natural” expression of anything, not even of something as unnatural as being a Westboro Baptist. However, if one takes this route, then it once again becomes a philosophically substantive question whether schools that prohibit homosexual conduct are violating the policy–and it was the point of the policy to decide that question. For the opponent of same-sex sexual activity can equally say that same-sex sexual activity is unnatural, and hence not a “natural” expression of anything.
Here’s another way of looking at the argument (I am grateful to a correspondent for this). We have a dilemma. Discrimination either is defined by negative differential impact or by unjustified negative differential impact. If it is defined by negative differential impact, then all the counterexamples above apply–in all my examples, refusing to hire the weirdo is discrimination on the grounds of something integrally connected with a listed status. If it is defined by unjustified negative differential impact, then the substantive questions that the policy was supposed to settle are unsettled, because it is a substantive question whether refusing to hire persons who have sex with persons of their own sex is unjustified.