Defending Quotas

We live in a society that contains severe gender injustice. One way in which to combat this injustice is via the use of quota policies. A quota policy is a policy that requires that members of certain specified groups to make up some stipulated minimum complement of an organisation or group of organisations. For example, we may require women to constitute at least 40% of non-executive board directorships. The use of quotas can be a highly effective tool for changing or maintaining the make-up of an organisation or group of organisations, especially when accompanied by harsh penalties for non-compliance with the quota policy.

Despite these credentials, the use of quota policies remains hotly contested and highly controversial. Indeed, the use of quota policies has been much more politically and constitutionally controversial than the use of other affirmative action policies, such as those that involve giving greater weight to applications from members of certain specified groups. I take it that part of the reason for this is that quota policies run the risk that worse candidates will be hired at the expense of better candidates. In other words, quota policies risk being genuinely discriminatory. The same risk does not arise with respect to policies that give greater weight to applications from members of certain specified groups. This is because the purpose of this greater weight can plausibly be seen simply as counterbalancing the effects of certain discriminatory norms, such as gendered social norms.

Even though quota policies risk being genuinely discriminatory, I believe that we should be prepared to defend their use. To this end, I shall make two points. First, as I have suggested, quotas can be highly effective, much more so than other affirmative action policies. As an illustrative example, let’s consider ‘reaction qualifications’ – that is, qualifications that a candidate possesses by virtue of others’ reactions to them. One stubborn way in which sexist discrimination occurs is when an employer rejects a female candidate’s application on the basis of how it is expected other people (other staff, customers, etc.) would interact with her. A quota policy provides a way in which effectively to challenge the effect of reaction qualification. Here, I agree with L. W. Sumner, who writes:

An employer who needs to hire women in order to meet a stipulated quota will be less likely to worry whether this particular woman is too pushy, or will not be a good team player, or is likely to get pregnant, or whatever. Although numerical quotas will come as an acute shock to many employers, I know of no other way to concentrate their minds as wonderfully on the genuine qualifications of female job candidates (214).

Second, the defence of the use of quota policies is strengthened if we can offer a reply to those who resist their use on the grounds that they run the risk that worse candidates will be hired at the expense of better candidates. This objection is typically put in terms of an appeal to rights and, in particular, the rights of the best qualified candidates. One fundamental problem with this objection is that it is insufficiently sensitive to costs that are imposed by the absence of a quota policy. At least in the short run, the alternative to the introduction of a quota policy is the survival of unjust discrimination, which leads to widespread rights violations. In short, if my first point in defence of the use of quota policies is correct, then we should conclude that there is no way to avoid imposing morally objectionable costs, at least in the short run. This is important as I think we should prefer imposing costs, as quota policies do, with the aim of minimising these costs in the long run, by moving towards a more just society.

To be sure, I do not claim that the use of quota policies is sufficient to end gender injustice. No doubt that, in addition to quota policies, we must pursue other goals to combat the causes and effects of gender injustice, such as challenging certain gender stereotypes and restructuring socio-economic institutions to protect greater and more equal opportunities. Nor do I claim that the use of quota policies is always necessary. In some cases, a quota policy may be futile and, if this is the case, it may risk being harmful. I support the more modest claim that we should in principle be prepared to use quota policies to combat gender injustice; that is, I believe that the quota policy is a legitimate weapon in our arsenal.  

Are we socially (and not just legally) obligated to presume innocence?

Content note: this post contains and links to discussions of rape and sexual harassment.

Social attitudes towards rape and sexual violence and harassment have over the last few years been undergoing what Laurie Penny has aptly called 'rape culture's Abu Ghraib moment'. From Steubenville, to Jimmy Saville, and academic philosophers, we have been confronted with both how widespread rape, sexual violence and harassment is, and how awfully this is dealt with by the police, courts and institutions. Closer to home for me, a few months ago the Oxford Union president was arrested for rape and attempted rape (the charges were later dropped). This resulted in a campaign to have him resign his position as president and for invited speakers to cancel their appearances until he did. The 'public intellectual' A.C. Grayling however refused to cancel his appearance, saying that the president was innocent until proven guilty and should not be tried in the 'kangaroo court of public opinion'. This has become a common response to accusations of rape (with 'kangaroo court' the favourite and somewhat tired description). The alleged rapist, it is argued, should not be subject to social sanctions and society should reserve judgement because of the principle that people are innocent until proven guilty.

I vehemently disagree with this. But when challenged I have in the past been somewhat unsure of my reasons for disagreeing. One argument is that though innocent until proven guilty is an extraordinarily important principle, it is primarily a legal principle. That means it applies to the courts and the legal process of convicting someone of a crime. If someone is to be subjected to state punishment (from fines, to jail, to being executed), then they have the right to be presumed innocent until proven guilty so that the obligation rests with the prosecution and not the accused to prove guilt beyond reasonable doubt. It is however not clear that public condemnation of an alleged rapist should be subject to the same principle. As has been pointed out the so-called 'kangaroo court of public opinion' is not actually a kangaroo court. A kangaroo court (such as white lynch mobs) disregards the standards of a fair trial to punish the accused. Public discussion and condemnation does not (usually) seek to actually replace the legal process and determine guilt and then exact the kind of punishment normally reserved for the state.

But I am unsure of this argument. First, it relies on a kind of reasoning where the legal and social is entirely divorced that I would normally reject. I do not for example accept the absurd argument that women, queer people and people of colour have achieved equal status on the basis that many (but certainly not all) legal discriminations have been removed, because this is undermined by the continued existence of social oppression upheld through patriarchal, white supremacist and heteronormative norms. Second, public condemnation and discussion is not the whole story. Social sanctions, which include being personally or professionally shunned and being removed or temporarily stepping down from public positions, are graver than public condemnation and can approach state punishment in the consequences for the accused. Trying to argue that carrying out these kind of social sanctions does not punish the accused in the way a court does, seems unconvincing. Justifying it requires more than saying that innocent until proven guilty is just a legal principle.

I think the more convincing defence of public condemnation and social sanctions, and thereby overruling innocent until proven guilty, is based on the flawed legal processes and social attitudes that surround rape and sexual harassment and violence. Rape culture and its associated myths infect every step of the legal process from the police to judges. Combined with the social shaming and condemnation of victims, this mean that rape remains (as the graphic above shows) a dramatically under-reported, under-prosecuted and under-sentenced crime. In the absence of a correctly functioning legal system and societal attitudes that support victims I think it is therefore justifiable to publicly condemn and socially sanction alleged rapists and harassers. Of course this will vary from case to case, based on which crime they are accused of and the actions taken by the institutions that are supposed to deal with it, and there is no easy formula for this. I think that these actions are however necessary to challenge the ideas embedded in rape culture and replace them with the kind of norms and institutions that would seriously reduce the prevalence of rape and harassment.

In closing it is worth reflecting why people place so much emphasis on innocent until proven guilty when it comes to rape and harassment. I suspect that this is in fact one more feature of rape culture. At its heart rests the profoundly mistaken view that false accusations of rape and harassment are rife. I think we should remember that insisting that the accused is innocent until proven guilty, is so often based on the assumption that the victim is 'lying until proven truthful'. To counteract that, I think it is central to believe and support victims. As Stavvers has convincingly argued:

'Silence is the biggest weapon patriarchy has in keeping rape culture alive, and “I believe her” starts to tear down this wall and encourage and empower survivors to speak out. Because of this, it is crucial that we resist the attacks on this notion, the slurring it as “mobs” and “kangaroo courts”, because it isn’t. It’s solidarity in the face of patriarchy, and we should be proud that it is starting to terrify those who would rather we shut up.'