Fair equality of opportunity in multiculturalism

It is not entirely clear what kinds of implications this (broad) conception of fair equality of opportunity should have on issues on multiculturalism, or on minority rights such as cultural exemptions.

Quite obviously, the Rawlsian framework does not allow public offices, educational institutions or job opportunities to be filled on the basis of one’s cultural or religious background, nor does it allow the members of minority cultures to be excluded from such positions simply by virtue of them being from a particular cultural background. This implication, of course, is nothing new (or novel to Rawls), but it does pave the way to a more interesting (as well as much more complex) question about the actual criteria that is used for fulfilling those positions that should be equally open to all. That is, it brings out the further question of whether the criteria, supposedly relevant for the successful performance in a position, is, in fact, consistent with the principle of fair equality of opportunity, if this criteria, nevertheless, excludes members of certain minority groups from gaining such positions.²⁸⁷

To recall, the Rawlsian conception of fair equality of opportunity states that certain positions (educational careers, jobs, public offices) should be open to all.²⁸⁸ Anyone, regardless of their gender, religion or cultural background, should be able to pursue his/her ambition of, for example, becoming a police officer, and to compete on equal terms with others who share the same ambition.

Further, the Rawlsian conception of fair equality of opportunity

287 For debate, see also Barry, 2001; Festenstein 2005.

288 In Rawls’s conception, this obviously refers to people within a particular society, that is, the citizens of the nation state. Rawls’s own view of equality of opportunity on the global level is very different (see esp. Rawls, 1999; for debate see Martin and Reidy 2006), although some work have been done to apply the Rawlsian framework of domestic justice also to the global sphere, e.g. Beitz 1979; Pogge 1989; 1994.

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also states that the criteria used for deciding who wins the competition of becoming a police officer should be based on those qualities that are relevant for a successful performance as a police officer, not on the morally arbitrary characteristics of gender, religion, cultural background etc. If successful performance as a police officer requires, say, certain educational qualifications, the criteria for fulfilling the positions of a police officer should also be based on if one has attained these qualifications. Finally, and most importantly, fair equality of opportunity also states that the structure of the society should be organized in a way that everyone, regardless of their cultural background etc., have equal chances of becoming a police officer, the chance being only dependent on their natural talents and the amount of work they put into fulfilling the criteria for such position. This entails that the educational institutions, including the institutions for police training, should be accessible to all, but it may also entail that the criteria for being a police officer itself should not disadvantage people from different cultural backgrounds.

It should, at this stage, be noted that, having criteria that is not based on the morally arbitrary characteristics of gender, religion, cultural background etc., is not necessarily the same thing as having criteria that does not put members of certain cultural groups in a disadvantaged position to that of the majority. For example, if one of the requirements of being a police officer is the acceptance of a strict code of appearance (including, say, a certain kind of uniform, short hair and cap), this does, in effect, make it much more difficult for those to become police officers who’s own cultural or religious commitments (such as the wearing of a veil or a turban) are in conflict with such requirements. Although the requirement is not, in itself, based on the morally arbitrary characteristics of one’s cultural or religious background,²⁸⁹ this requirement, nevertheless, has a very different impact on people from different cultural backgrounds, as for some, fulfilling this requirement means giving

289 That is, the requirement is not intended to prevent those with conflicting dress codes from joining the police force.

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up a (potentially very important) aspect of their culture, whereas for others, no such sacrifices are required. As a consequence, it may be much more difficult for members of those cultural groups with conflicting dress codes to become police officers than others, thus also cutting down the amount of people who, from such backgrounds, manage to both fulfill these requirements as well as to become police officers. With respect to these consequences, two issues should be kept separated:

Proportional underrepresentation

Firstly, there is the issue of proportional underrepresentation of members of certain groups. Although this may be a concern in itself (it can be argued that public institutions, such as the police force, should have equal representation of all groups in society), this does not, in itself, entail that the requirements of becoming a police officer would be discriminatory against the members of some groups. As Brian Barry has pointed out, there may be several reasons for why members of certain groups do not even wish to aim at certain positions, irrespective of the criteria that is required for such positions.²⁹⁰ The proportional underrepresentation of some groups may, of course, be a result of discriminating criteria (and should thus also give good reasons for the state to investigate the used criteria in order to identify this (possible) discrimination), but the underrepresentation itself does not suffice to establish that the criteria used for fulfilling such positions would be discriminating against the members of some groups.²⁹¹

Differentiated impact of a rule

Secondly, and more interestingly for the purposes of this chapter, there is the issue of whether the differentiated impact of criteria violates the principles of fair equality of opportunity, and whether such criteria can be considered as leading to unfair

290Barry 2001, 97-98; 117.

291 See also: Barry 2001, 97-98.

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discrimination.²⁹² Again, it is Brian Barry who has taken the stand to the contrary, arguing that the differentiated impact of a rule (in this case, the criteria for becoming police officer) does not necessarily mean that the people who are burdened by the rule would also be discriminated against.²⁹³Whereas I think that Barry is right – a differentiated impact of a rule does not necessarily mean discrimination – I also believe that the argument Barry gives in support of this position is flawed, and that in many cases, rules that have a differentiated impact on members of cultural groups are, in fact, discriminating.

To start with Barry’s own argument, Barry states that all rules treat different people differently, and the fact that a rule has a different impact on some people due to their religious or cultural commitments does not suffice to show that this rule would be unfair or discriminatory. As examples, Barry points towards laws that prevent rapists from raping or pedophiles from interfering with children – both clearly laws that have much harsher impact on those who would want to rape or molest than those who do not.²⁹⁴ Needless to say, these laws are not considered as unfair or discriminatory, even if the impact of the law is clearly different for different people.

The attempted analogy between the anti-rape laws and the criteria that put an extra burden on members of certain cultural groups in the employment market is, however, clearly flawed. In order to see this, one needs to look at the difference in the intention of the laws or rules in question. Whereas it is the intention of the anti-rape laws to put a burden on the would-be rapists (justified by the rights of those not wishing to be raped), it is not, and should not

292 For the sake of simplicity and shortness, I will from now refer to

“discrimination” instead of “unfair discrimination” although it should be kept in mind that there may also be positive forms of discrimination that aim at fair or just outcomes or distribution, and that not all forms of discrimination are necessarily inherently unjust or unfair. Cf. Lippert-Rasmussen 2006; 2007.

293 Barry 2001, 34.

294 Barry 2001, 34.

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(in accordance with the principle of fair equality of opportunity) be the intention of the criteria of employment to put a burden on those members of cultural groups whose cultural practices (such as dress codes) are in conflict with the used criteria.²⁹⁵ Whereas the anti-rape laws are designed to prevent those wishing to rape from raping, the criteria for becoming a police officer is, and should be, designed in accordance with the requirement of everyone having an equal chance of becoming a police officer.²⁹⁶ Moreover, whereas one’s interest to rape can easily be conceived as an illegitimate interest (overridden by the interests of those not wishing to be raped), most cultural practices – including dress codes – are perfectly legitimate.

Whereas rape is, inherently, a violation of another person’s rights, cultural dress codes are not.²⁹⁷ In order for Barry to build a convincing argument from analogy to show that the differentiated impact of a rule, due to one’s cultural commitments, would not be discriminatory, he should have at least picked other rules that were, in relevant senses, analogous to the cases at hand..

Showing the flaws in Barry’s argument does not, however, show that his conclusions would also be flawed. Nor does it answer the question of whether the principle of fair equality of opportunity is violated, should some criteria (such as the dress codes of the police officer) put an extra burden on those whose cultural commitments are in conflict with the criteria. Although I will elaborate on this issue more fully in the following section, what I wish to suggest, for the time being, is that it is at least an open question whether the

295 See also: Barclay 2005.

296 This is not to say that the primary aim of the criteria would be to provide everyone equal chances of being a police officer. Rather, the dress code is designed to benefit the performance of both the police force as well as the individual officers. However, unlike the anti-rape laws that are designed to put a burden on certain people, the dress codes are not, and – in accordance with fair equality of opportunity – should not.

297 It is, of course, a different issue whether the enforcement of a dress code (such as the wearing of a veil) violates the rights of, or causes harm to, those to whom it is enforced. An illegitimate enforcing of the code, however, does not make the code itself as inherently illegitimate.

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differentiated impact of a rule or criteria (designed to fulfill the requirements of fair equality of opportunity) is (unjustifiably) discriminatory.

A comparison between Barry’s example of anti-rape laws and the example of the professional dress codes of the police officer should help clarify this point. Whereas it is clear that in both cases, the universally applicable rule has a different impact on different people, what the multiculturalists would wish to maintain is that, in the first case, the differentiated impact is justified, whereas in the second, it is not. Although it is certainly true that in the first case, it is the intention of the anti-rape law to burden the would-be rapists, and that in the second case it is not, the intention of the rule does not, in itself, suffice to establish whether this burden would be justified. Having a law that is intentionally burdensome to some people does not make it justified, nor does the un-intentionality of the burden establish that it would be un-justified.²⁹⁸ There are, however, other differences in the two cases that may be helpful for the multiculturalists for explaining the difference between the two cases.

Whereas in the case of rape, the question can be framed in terms of balancing the interests of the would-be rapist and his victim, in the case of professional and cultural dress codes no such obvious comparison can be found. In the case of rape, it can (fairly non-controversially) be argued that the interests of the would-be rapists are overridden by the (more fundamental) interests of others to bodily integrity, thus justifying the differentiated impact of the law to would-be rapists and non-rapists.²⁹⁹ In the case of professional dress codes, however, it is not quite as clear, between what, let

298 As an example, most contemporary liberal thinkers would probably agree that the apartheid system of South Africa was hardly justified, although it was certainly intentional.

299This is not to say that the only wrong of rape would be that it violates the basic rights or interests of the victim, although this certainly is one aspect of the wrongness of rape. For more thorough analyses of the wrongness of rape, including interest-base accounts, see Archard 2007;

entries to Burgess-Jackson 1999.

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alone how, the balance should be struck. On the one hand, there are the interests of those wishing to maintain their own cultural dress codes – something that, following the importance argument given in Ch. 1, it is not, as a default, reasonable to expect them to abandon. On the other hand, however, there are the benefits of a uniform dress code – something that (at least to an extent) can be considered as necessary for both the successful operation of the police force, as well as the successful performance of the individual police officers.³⁰⁰

Whereas I will, in the final section of this chapter, come back to some of the different reasons (as well as the weight of these reasons) there may be for insisting on particular rules or criteria in various situations, for the time being, it suffices to note that, contrary to the case of rape, the balance of interests in many cultural cases may be far less straight forward than many multiculturalists, or their critics, would hope it to be. Once we take seriously the differentiated impact (burden) of the criteria, the (potentially very strong) consequences that following this criteria may have to one’s cultural commitments, and the principle of fair equality of opportunity, it becomes far more difficult to argue that those burdened by the criteria due to their cultural commitments should, as a default, be expected to either abandon their cultural commitments or their professional aspirations. If one’s cultural commitments are of such (potentially) tremendous importance that it is not (as a default) reasonable to expect people to abandon these commitments, it would seem odd to argue that any rule, imposing a burden due to these commitments, could be deemed justified without any further ado. This is not so say that, in some cases, the particular universal rules or criteria could not be deemed of such importance that the burdens created for minority members would be

300 For the time being, I will set aside the question of whether it is precisely that particular dress code that is necessary for the functioning of the police force, or whether some other uniform dress code would also suffice.