Codes of Conduct and Discrimination …

With the whole Synthese flap that’s going on — and I’ll comment on that later, I hope — I’ve looked at some of the posts on Brian Leiter’s blog about how much he really, really dislikes Francis Beckwith, which included comments about his defense of bigotry, which led to a discussion about discriminatory practices:

Basically, the issue here is that there are some — mostly Christian, one presumes; the example given is clearly Christian — that post jobs in the Jobs for Philosophers index that seem to violate the APA’s anti-discrimination guidelines.  How do they do this?  Well, they aren’t explicit about it, but include a code of conduct that applicants must sign that says that they won’t do certain things that are considered — at least in the minds of the university — to be opposed to Christian values, and one of those things is homosexual activity.  For Leiter and those he cites — and many who comment there — this violates the anti-discriminatory guidelines of the APA and these universities should not be allowed to post jobs there.

Now, there is an actual interesting issue here that kinda gets pushed aside overly quickly in the comments.  It is clear that universities and other businesses have the right — philosophically and legally — to institute codes of conduct for their employees.  It’s also the case that sometimes these codes of conduct can be used to institute hidden discrimination, by paying lip service to inclusiveness but by then defining a code of conduct that would exclude everyone of a certain group from it.  This gets tossed around a bit in the comments, but a comment from Leiter is just so indicative of the arrogance and tone issues that come up in so many places these days that I just have to highlight it:


“I think this particular thread has now exhausted itself. Professor Norcross is obviously correct, and he should not have to respond further to the non-interventions and posturings of Mr. Peoples.”


This comment was made seven minutes after Norcross asked for an additional argument from Peoples, and still didn’t actually address Peoples’ comments himself.  And he isn’t obviously right, and Peoples did actually have a point that most of Norcross’ arguments were simply making comparisons without showing that they really were relevant.  For Leiter to shut it down by saying that Norcross was just plain right should rightfully bother anyone who thinks they might disagree with him.  He can justifiably shut down a thread that’s reduced to spinning of wheels, but the thread hadn’t reached that point.  While he — like anyone who runs a blog — have the right to stop discussion for whatever reason they want, Leiter likes to stand on the side of intellectual freedom, but then cuts off discussion in a way that seemingly does not allow Peoples to respond and — by stating that the answer is “obvious” — discourages anyone else from taking up the objections in what might be a more reasonable manner.

And let’s look at those arguments that are obviously right (from the last comment from Norcross):


“First, in the comment above yours, I said, “Given the importance of sex to most people, such a ban says to those of homosexual orientation “you aren’t allowed to gain sexual fulfillment”, while saying to heterosexuals, “but you are””. ”


The problem is that this is one thing that Peoples actually did address:


“Christian colleges frequently have fairly extensive codes of conduct – at times (in what I regard as fairly extreme cases) even requiring that faculty members abstain from drinking alcoholic beverages, smoking or gambling. They realise that an applicant might find those things desirable or even enjoyable. In fact they may even make very broad claims like “we expect our faculty to live in a manner that is exemplary of Christian life.” The framers of such statements are generally firm believers that people don’t wish to do so all the time. But they require that regardless of how a person might find themselves wanting to live (be that by smoking, drinking, gambling, partaking of various forms of entertainment, having certain sexual relationships), they choose to forgo these things while they are members of the faculty even if they personally think that proper Christian morality should not require these restrictions.”


That people find sexual fulfillment important isn’t an argument, since the code of conduct applies to many such things.  For example, a ban on the consumption of alcohol would take away one of life’s great pleasures for some people, and affect me not at all (since, for issues of personal taste, I don’t drink).  Any restriction on conduct will do this, and so saying that that in and of itself is discrimination — as Norcross’ comment suggests — is absolutely false.  If this objection is to make any hay, it has to be because of a special relation to sexual preference.

Note that when Leiter quotes the relevant section of Wheaton’s code of conduct, he quotes this:


Wheaton College requires its applicants to sign a form with the following statement. “We believe that these Christian standards will show themselves in a distinctly Christian way of life, an approach to living we expect of ourselves and one another. This lifestyle involves practicing those attitudes and actions the Bible portrays as virtuous and avoiding those the Bible portrays as sinful…Scripture condemns the following:…homosexual behavior” A version of this form can be found here.”


But the full section — from the link Leiter gives — is this:


“sexual immorality, such as the use of pornography (Matt. 5:27-28),
pre-marital sex, adultery, homosexual behavior and all other sexual
relations outside the bounds of marriage between a man and
woman (Rom. 1:21-27; 1 Cor. 6:9; Gen. 2:24; Eph. 5:31).


This would include a lot of heterosexual sex, and would indeed be discrimination on the basis of marital status if it was discrimination at all.  And yet, somehow, the APA doesn’t seem to care about that sort of discrimination, as their policy as quoted in Leiter’s post is:


Further, 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,”

Anyway, making the case that this is special requires the second of Norcross’ summarized arguments:


“One I gave was about the college that claims not to discriminate against women, but requires all its employees to pee standing up. Mark Lance gave the example of the college that claims not to discriminate against Christians, but forbids its employees from attending church, praying, etc.”


Norcross’ example, interestingly enough, is a very weak one, as women can pee standing up, but it’s just difficult for them and likely messy.  If this got called out, it would be because no one can see any possible reason why anyone would implement it except as a reason to make positions there less desirable to women.  That’s clearly not the case here, as a Christian code of conduct is quite likely to include homosexuality in their more lengthly discussion of sexual immorality because it is indeed considered such and that section is only one small section of a rather large list of things that are seen as being against Christian morality.  So Norcross’ argument clearly doesn’t work.  And remember that Leiter claimed that Norcross was obviously right.

Mark Lance, though, has a decent analogy, which can start off the discussion.  Why the case of “We’ll hire you if you’re Christian, as long as you agree to not practice your religion” raises alarms is that practicing your religion is certainly a protected right.  It’s odd to have as a restriction on your behaviour that you not practice your religion as a protected right.  However, no one would have any issues with a code of professional conduct that said that you couldn’t — in your professional life — display or discuss your religion, or pray in those cases.  So clearly, one can restrict religious behaviour in a professional code of conduct, but there are limits to that restriction.

To get the same special consideration, then, sexual preference must tie into a right.  There is no right to a sexual preference, so this must get in under the right to not be unduly discriminated against, which I’ll grant here for the sake of argument.  Thus, we can consider whether or not in this case they are being unduly discriminated against.  And this is no where near as obvious as Leiter thinks it is.  Recall the case above about peeing standing up.  In that case, we concluded that it was problematic only because there seemed to be no reason for the restriction; it seemed clearly designed to discriminate.   This also seems to be the natural distinction between the “Can’t go to church or pray” and the “Can’t display religion in your professional dealings”; we can all see why the latter might be instituted — to avoid any hint that there might be preferential treatment on the basis of shared religion — but can’t really see any reason for the latter.  If we could — and right now I don’t want to try, but would on request — I submit that we’d be willing to accept the discrimination in that case, as it wouldn’t seem to be an arbtrary restriction put in place only to discomfort a particular group but a reasonable restriction referencing the goals of the institution.  As long as we accept those goals, then, we’d accept the “discrimination”.

And this returns us to the code of conduct, and its goal of promoting a Christian way of life.  It certainly does that; the code of conduct lists many such rules covering a wide range of topics.  The restriction, then, is part of an overall policy that supports a specific goal.   As such, it is not arbitrary, but a reasonable code given that end goal of promoting a Christian way of life.  If one accepts that a Christian university may hold as a valid goal promoting a Christian way of life — even if you think they are wrong to do so — then this cannot be seen as discrimination.  At least, to my mind.  And so the arguments don’t seem to work; more and better arguments are needed.

Finally, I find the end of Norcross’ comment bemusing:


So, Glenn, once again, let me tell you something about how philosophical argument goes. In ethics, it’s common to argue from examples. Philosopher A wants to demonstrate that behavior X has moral feature F. He says, X is morally relevantly just like Y, which clearly has feature F. What’s the proper response to this, if you want to disagree? You have two options:

(i) Show (as in actually demonstrate by argument) that X is not morally relevantly just like Y. This will involve explaining the morally relevant respects in which X and Y differ.

(ii) Show that Y doesn’t clearly have feature F.

“I just don’t buy it” is not a philosophical response. It is a piece of psychological autobiography. If you don’t want to/ aren’t capable of engaging with what are clearly arguments, fine. Not everyone is cut out to be a philosopher. Let a thousand flowers bloom. But don’t pretend that no-one has given arguments.”


Well, the problem is that if someone merely asserts that X is like Y and so if we think that Y is wrong then X should be as well, it’s a perfectly good response — even from philosophers — to say “Why do you think that X is sufficiently like Y to make the case that both should have F?”.  Surely it isn’t up to the objector to define the similarity that the person proposing the argument is going after and the refute it?  Who has the burden of proof?  Argumentatively, the person putting forward the argument should demonstrate why they are the same, and not just rely on people seeing it that way.  This is even more important in philosophy since clear notions of concepts are critically important to it and what philosophy is all about.  Saying that he isn’t cut out for philosophy because he — possibly rightly — pointed out that Norcross seems to have relied on the examples to completely provide the arguments instead of providing one himself is, bluntly, quite out of line.

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