Journal of Applied Philosophy, Vol. 3, No. I , 1986 111

Compensation vs. Fair Equality of Opportunity

NAN1 L. RANKEN

ABSTRACT In this paper I attempt to show that our commonly shared ideas ofjustice, which include principles of fair distribution and of compensation for past injustices, tend to come into conflict in practice, and generate serious dilemmas for persons in certain positions of authority, such as managers. I identify the source and nature of such dilemmas, and sketch a rough pattern for analysing and partially resolving conflicts between the duty not to discriminate unfairly and the duty to compensate for past unfair discrimination. After stating what I regard as widely shared ideas of justice, I emphasise their application to actual policy decisions of the small-scale sort, using general precepts for avoiding or minimising conflicts. The precepts include a commitment to the priority of compensato y justice. The paper includes theoretical portions, principally defences of my position against other views on the relationship between compensation and fair distribu- tion. I end with an examination of the virtues and limitations of money as a tool for compensato y social policies.

Moral philosophers have been accustomed since Mill to considering problems of conflict between justice and utility. But with the recent emphasis on theories of justice and their application to social issues, a less familiar source of conflict is becoming apparent. Justice alone, without regard to utility, may require conflicting social policies. This seems to be the case in a t least one context-that created by the recognition that certain groups (for example women and racial minorities) have been victims of systematic discrimination in educational and work opportunities. In this area the policy that assures compensation for past injustices may not be compatible with fair equality of opportunity. And if this is so, then no amount of philosophical analysis and refinement of the meaning of justice will help solve the practical problems inherent in the situation. Yet the problems are there, and many philosophers have recognised their urgency. Just as the Utilitarians of a former day worked to bring about social reforms for the “greatest happiness . . . ,” present-day philosophers, inspired most notably by Rawls, have turned to work for greater justice. But if we are to make ourselves useful in the public arena by contributing to the reduction of unjust practices, as the Benthamites contributed to the reduction of pain and misery, then we must face up to the very real dilemmas generated by our commonly shared ideas of justice.

This paper is an attempt to identify the source and nature of such dilemmas, and to sketch a rough pattern for analysing and partially resolving conflicts between the duty not to discriminate unfairly and the duty to compensate for past unfair discrimination. My intention is emphatically not to add to the voluminous literature on theories of justice and their bearing on reverse discrimination, nor to search out the various causes of inequality of opportunity as some recent works on reverse discrimination have done [l]. While I am ready to grant the prevalence of large-scale unjustified inequities and the consequent need to criticise and reform basic institutions, the goal of this paper is a

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limited one: I try to apply widely shared ideas of justice to actual policy decisions of the small-scale sort that a typical manager or administrator would have to face. In a recent article Michael Bayles concludes that “If applied ethics is to be influential it must address real practical problems , develop mid-level bridging principles, and communicate them and the reasons on which they rest to a non-philosophical public” [2]. In spite of claims to the contrary it seems to me that much of the current literature on reverse discrimination remains focused on theoretical issues about justice and the application of broad principles to large-scale social programmes or major issues of public policy. But while those are admittedly the really important issues, they are not the ones faced by the ordinary manager or administrator. These are, by comparison, small-scale, their limits being defined by the range of authority of the person in charge and by the constraints of the system within which the institution operates. Given my modest goal, I shall simply state the principles on which I base the duties of fair distribution and compensation, without attempting to explicate or defend them in detail. These principles are intended to apply as ideal guides to all institutional arrangements, public or private. I believe them to be widely shared and such that they could be fitted into different theories of justice and rights [3]. And I hope to show that they can be used to develop action-guiding precepts, perhaps serving the function of Bayles’ “mid-level bridging principles” referred to in the above quotation.

1. The Principle of Distributive Justice

This requires the adoption of practices leading to fair distribution of benefits and burdens. This principle as stated here is meant to allow for any reasonable interpreta- tion of ‘fair distribution’ provided only that it includes the following elements: fair equality of opportunity in the sense of access to the education, experience, and positions to which are attached the benefits and burdens that are under social control; and fair equality of treatment within such positions (for example equal pay for equal work). (I am not concerned, in this paper, with the large-scale social inequalities stemming from the distribution of benefits and burdens that are nor under social control. I recognise the validity of Fishkin’s argument (op. cit., note 1) that back- ground inequalities stemming from the position and education of the family make full equality of opportunity an impossible dream-even without the added problem of compensation for past wrongs-given that we would not wish to interfere with the autonomy of the family except in extreme cases. I am merely concerned with benefits and burdens that a manager or administrator has it in his or her power to distribute.) Violation of the Principle of Distributive Justice will constitute unfair discrimination.

I recognise that the phrases ‘fair equality of opportunity’ and ‘fair equality of treatment’ are not univocal. Disagreements in theory can arise as to what differences among people are or are not relevant-what can be fairly given as a basis for differential treatment relative to a given Opportunity. But the thrust of this paper is to provide help in dealing with those numerous practical situations where there is no such disagreement-where the ground of discrimination is recognised as arbitrary and thus unfair. In most contexts race, sex, religion, and class would be prime examples [4].

2. The Principle of Compensatory Justice

This requires that reparation be made to persons who have suffered unfair burdens, including, pre-eminently, burdens resulting from a failure of distributive justice. While

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this statement is backward-looking-persons are owed compensation just because they have been wronged-the principle has a future-directed corollary: since the reparation presupposes the recognition of the wrong, that very recognition entails a duty to take steps to prevent the repetition of the wrong. In an institutional setting this usually means that some process must be altered-for example, testing and interviewing of applicants, channels for reporting sexual harassment, etc. This future-directed corol- lary of the principle is crucial: long-standing practices and attitudes, such as those that support racial and sexual discrimination, are probably the most widespread and serious causes of injustice that managers face. Therefore any sincere efforts to compensate for the wrongs caused by such practices must include efforts to change the conditions that perpetuate the practices.

Both principles are meant to apply to public or private institutions, so that a failure of distributive justice resulting from the policies of an institution brings into play a duty of compensation attaching to the same institution. While the principle can be applied to individuals as such, both as perpetrators and as victims, this paper is concerned with the justice of institutional practices, hence with policies stated in general terms and directed at members of groups defined by reference to some common characteristic.

Having stated these two minimal principles, we can proceed to investigate their relationships more fully, to identify the practical questions that must be answered, and to arrive at some general precepts in their application. But first let me emphasise again that I am concerned here with the concrete, limited, relatively small-scale problems that face managers; and I recognise that solutions will be partial and imperfect as long as the large-scale problems of social injustice remain with us. Neither the Principle of Distributive Justice nor that of Compensatory Justice can be fully satisfied in the real world, which is apparently doomed to exhibit chronic inequalities of opportunity. But these realities need not prevent attempts to identify and combat injustice in specific contexts. While one cannot do everything one must yet do something.

Let us assume that a group of persons has been the object of unfair discrimination on the part of society acting through its institutions. Let us also assume that conditions exist such that any practicable policy designed to compensate members of this first group of persons would result in a less than equal opportunity to reap social benefits (or escape burdens) for members of a second group of persons. In such cases, if we support compensatory policies we are also supporting a violation of the Principle of Distributive Justice. If we do not support compensatory policies, we are supporting a violation of the Principle of Compensatory Justice. But since we must either support or not support compensatory policies, it follows that we must violate one or another of two central principles of justice.

The above assumptions about existing conditions are not far-fetched. They surely reflect many real-life situations. Those who formulate policy in admissions offices and personnel offices are in fact caught in acute dilemmas-dilemmas that can be traced to just such conditions of perceived conflict. A. C . Ewing in The Definition of Good cautioned that once a morally wrong choice had been made, it might well be impossible to find a further action in that context which was simply right. No matter what alternative one considered, he said, it would involve a moral wrong. One does well to take this caution seriously in relation to the situations to be discussed. Clearly the dilemma just sketched applies to cases that exemplify precisely what Ewing had in mind: it is a prior institutional wrong that brings into play the duty of compensation. And real-life situations are frequently such that there is no obvious way to right the

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wrong that would not itself be open to charges of injustice. However, recognising that there may be no solution that is simply right should not lead to paralysis. If there is a duty of compensation then something follows: it will be incumbent upon some persons-those who formulate, interpret and implement policies-to identify members of wronged groups and then take action to right the wrong. And fulfilment of that latter duty can be a tall order. Thus it is not enough for philosophers to point out that justice demands reparation for wronged individuals or groups. Nor is it sufficient to add a caution to the effect that the burden of providing the compensation must be fairly distributed. In order for a legislator, civil servant, or manager to translate the demands of justice into policy, he or she must have answers to the following questions:

(1) What actual changes in a situation are required by the demands of compensatory justice?

(2) Under what conditions, if any, might these changes be consistent with the demands of distributive justice?

(3) Where the required changes are inconsistent with the demands of distributive justice, how might one arrive at compromises that minimise the violation of justice?

The remainder of this paper proposes answers to these three questions in turn and suggests ways of applying the answers in practical contexts.

(1) Compensatory justice demands that an action be undertaken to change some- thing-to right the wrong in some sense. The things that must be changed are those aspects of the lives of the members of the wronged group which are generally predictable causal results, direct or indirect, of the wrongful treatment; and which are either burdens or can be expected to have burdensome effects.

It is worth noting that some societies view crimes against persons as special cases of injustice calling primarily for compensation rather than retribution. Thus, in comment- ing on the law that would put a rapist in jail, an Indian from the American Southwest is reported to have said that such a punishment will not help the girl; that she is now less likely to find a good husband than before, so, the man should give her most of his goods: then her chances for a good marriage will improve again.

In any case there may be a variety of contexts in which individuals can be said to have duties of compensation that are broader than those given in the above answer to the first question. But for our purposes, using the Principle of Compensatory Justice to guide compensatory programmes, it is appropriate to restrict the demand for change to the generally expectable burdens resulting from the unfair practice. The agency whose policies violated the Principle of Distributive Justice, on the other hand+ would thus not be obligated to compensate for burdens that depend on accidental features of an individual’s history. There will be grey areas; but it should be clear, for example, that the suicide of a rejected applicant, or even his becoming an alcoholic, are not ‘generally predictable causal results’ of the unfair policy that led to the rejection.

A few examples will help clarify the meaning of the answer to the first question. Let us begin with the simplest possible example-one in which we can assume that

no indirect or long-range burdensome results of discrimination need to be considered. Suppose that a college uses student-activities fees to purchase weight-lifting equip- ment and installs the equipment in an area accessible only from the men’s locker room. This constitutes a violation of the Principle of Distributive Justice in so far as women students wishing to use the equipment have no access to it. A group of women athletes protests, and within a short time the equipment is moved to a ‘neutral’ area. All is well, we can say, because the only thing that has had to be changed is the inability of the

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women students to enter the weight room. There are no other burdensome results, direct or indirect, and so the requirement of compensatory justice, as stated in the answer to the first question, is satisfied. In such very simple cases it turns out that the Principle of Compensatory Justice requires nothing more than the termination of the unequal access. In other words, that principle collapses into the Principle of Distribu- tive Justice and the second and third questions become inapplicable. Objections to all forms of affirmative action are often based on the belief that one can right the wrong simply by stopping it-that is by changing the discriminatory policy to a fair one. But this is clearly a grave mistake. The belief holds true for our simple example only because it is so very simple: it excludes any indirect or long-range expectable burdens. Where such burdens are present the changes required by the Principle of Compensa- tory Justice must go beyond the mere removal of the original unfairness.

Here is one more simple example into which is built one indirect burden. An employer pays all his workers the same wages except the Catholics and Jews, who receive less though they do the same work. On our interpretation of the Principle of Compensatory Justice there are now two burdens that must be removed: the current unfairly low wages and the relative poverty of the workers resulting from past unfairly low wages. Both are consequences of the violation of the Principle of Distributive Justice, that is, of the requirement of fair equality of treatment. The employer is therefore obligated, not only to stop the discriminatory pay policy, but also to pay the victims the difference in earnings retroactively, plus interest.

In conclusion, once the wronged group and the harm done are identified, the first question is answered. Considering the requirements of compensatory justice and nothing else, the changes required are the removal of the burdens. More complex examples will be considered as we attempt to answer the remaining questions.

(2) Under what conditions, if any, are the changes required by the Principle of Compensatory Justice compatible with the demands of the Principle of Distributive Justice? The changes required by the former principle, as discussed in the previous section, are described in terms of the end result to be achieved-the removal of the burdens identified as the result of the discrimination. We now turn our attention to the policies intended to bring about the desired result. Alternative policies would presum- ably be formulated by social planners, administrators, or managers, and it would be a matter of their expertise to come up with workable and efficient plans. But justice demands more: how do the presumed workable policies square with the requirement of fair equality of opportunity?

Let me use an example whose general features are typical of a wide range of situations stemming from old discriminatory policies. The specific example is, thank- fully, outdated and therefore not controversial.

Suppose that a public school system (in some benighted country) institutes classes on auto-mechanics for boys only-a violation of the Principle of Distributive Justice. We identify the something that must be changed to satisfy the Principle of Compensa- tory Justice, first of all, as the inability of girls to register for the course in auto- mechanics at the school. This inability is the direct result of the policy and it affects those girls who want to take the course. It is the only direct, generally expectable burden resulting from the unfair practice, so that the Principle of Compensatory Justice is satisfied simply by changing the practice so as to open the classes to girls-whether or not boys are to be excluded.

(This example is simplified to the point of artificiality by failing to consider indirect, longer-range predictable results, assuming the unfair practice remains in effect over a

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period of time. In real-life situations, when researchers set out to specify the harmful effects of discrimination, they find not only immediate burdens but also-especially for lasting unfair practices-indirect burdens which are generally predictable. Since they do not depend on individual accidents of persons’ lives they come under the scope of the Principle of Compensatory Justice. These issues will be discussed later.)

Returning to the case of the girls excluded from auto-mechanics classes: suppose that the policy was in effect for a brief period-say one term-and was then abolished, thus apparently satisfying the Principle of Compensatory Justice. But suppose further that there are no funds for the teachers, space, and equipment needed to meet the additional demand for the course created by the newly eligible students. Here are a number of policies that could be suggested by the school administrators:

(i) One could assign students to the limited positions in the class on a random basis. (ii) One could ask the students to rate their desire for the course on a scale, and give preference to those whose desire is most intense. (iii) One could give preference to all girls who wished to take the course. (iv) One could give preference to the older students, on the ground that they would be out of school the following term and this would be their last opportunity. (v) One could give preference to those with highest aptitude scores relevant to the content of the course. (vi) One could give preference to the girls who had wanted to take the course the previous term but were prevented by the old discriminatory rule (then apply i, ii, ivy or v for the remaining places). (vii) Etc.. . .

It is instructive to see how easily one thinks of a great variety of distributive policies, each having some prima-facie merit, even for a very simple case. And then it is disappointing to note that of all the ones mentioned just one is clearly designed to satisfy the Principle of Compensatory Justice as it applies to this case. Only vi, explicitly requiring reverse discrimination, is certain to right the wrong. It is expressly designed to remove the inability to register for the course for the girls who had wanted to. None of the other policies is certain to achieve that end. But unfortunately (and perhaps typically) vi and iii are just the ones that are most clearly in violation of the Principle of Distributive Justice. For ii, ivy and v it is possible to produce arguments showing that this principle is satisfied, on some not unreasonable interpretation of fair equality of opportunity. But this does not seem possible for iii and vi. And so it would seem that none of the suggested policies will satisfy both principles.

Of course, what makes the task difficult is the explicit provision that no additional facilities could be added to the school’s programme. It is that limitation which is at the root of the problem. Therefore, if we change the conditions of our example and assume that facilities will be available, then compensation can be made, as required by the Principle of Compensatory Justice, without any new violation of the Principle of Distributive Justice-as long as the funds for the facilities are not acquired by unfair means. This shows that there are instances where there is (apparently) no inherent conflict. (Again, we are ignoring the indirect burdens-in this case the effects of the delay imposed on the girls by the unfair policy.) But if we maintain the original conditions of the example and assume that no facilities will be available to take care of the additional demand, then we will have a rather typical case of limited resources. And the decision to use some of the resources to achieve the results demanded by the

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Principle of Compensatory Justice will automatically place a new class of persons, including all the boys, at an unfair disadvantage.

( 3 ) The time has come to face up to the third question-how is one to arrive at a compromise that minimises the violation of justice?

When distributive justice cannot strictly be adhered to, its violation should be clearly identified, openly admitted as a wrong, and provisions for its compensation explicitly set forth. This seems to me to be self-evident. In our example, the injustice done to some students over the next semester will have to be recognised as such and the intention to compensate for it must be made clear.

In general it seems intuitively right to compensate as soon as the original unfair distribution is discovered, even if this necessitates creating a new class of wronged persons. This intuition can be defended on two grounds. First, compensation to the extent of removing the direct, immediate harm has the effect of interrupting the chain of events which swells the burden of the victims by addition of indirect harms. Thus, admitting the female students immediately, while resulting in an unfair disadvantage to the male, at least prevents any compounding of the harm by forcing further delays on the female and by continuing to reinforce an image of women as unsuited for auto- mechanics. (This latter harm can be predicted to affect the women in various burdensome ways.) And secondly, if there has to be injustice, it, like other burdens, should be spread around. New victims of injustice will be created by this policy, but this seems more fair than to prolong the injustice burdening one group; just as sharing socially important onerous work is generally fairer than forcing it on one group.

The principle I am proposing-that of the priority of compensatory justice-entails that where a conflict exists the removal of past unfair burdens takes precedence over the distribution of the benefits to persons not previously burdened by their lack; it is understood that the benefits refeired to here are just the ones that had been unavailable to the persons who are now entitled to compensation. Stating a priority in case of conflict does not have the effect of denying the claims of distributive justice (nor of utility, for that matter). As was emphasised above, as soon as the conflict is recognised and the compensatory policy adopted, one is under a new obligation to compensate for the injustice caused the newly wronged class, before any further distribution takes place.

What consequences does this principle have for the example of the auto-mechanics class? If policy vi (p. 116) is adopted, thus satisfying (roughly) the Principle of Compensatory Justice, and if we assume that before the admission of girls all male applicants were accommodated, then the boys rejected under the new policy become victims of a violation of the Principle of Distributive Justice, since they have less than an equal chance of admission. Therefore they must be compensated before any places are made available to a new group of applicants. But one cannot simply say that they must be given first crack at enrolment the following term; for then a new wronged class will be created and the cycle of violation of the Principle of Distributive Justice will continue. The public officials who administer the programme must consciously try to break the cycle by raising money for additional facilities, so that compensation of the wronged class will be made up for by increased opportunities for everyone. The taxpayers would have no legitimate basis of complaint since they would have benefited over the years from a less costly programme owing to the failure of the system to provide the services to the female students.

The claim that a new obligation is created by compensation through preferential treatment has been denied by some writers [6]. The most direct argument against it is

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presented by Goldman, who adopts a principle of priority of compensation which is very strong: it follows from it that there is no benefit rightfully available for distribution (e.g. no open position) until compensation has been made; therefore the question of fair equality of opportunity does not arise and there can be no newly wronged persons [7]. T o reinforce this conclusion he argues also that allowing the claims of a newly wronged group would in any case result in an infinite regress of compensation, which is self-defeating since it would postpone indefinitely the applica- tion of a just rule of distribution [8]. I shall attempt to answer both these arguments in the context of the above example.

The argument from infinite regress is, I believe, a nonsequitur: the possibility of continued regress (what I referred to as the cycle of violation of the Principle of Distributive Justice) is real enough; but recognising this does not entail that one just stop at the original compensation. Onelmay just as well conclude, as I have, that active steps need to be taken to break out of the cycle-stop the regress. The example above shows how natural it is to draw such a conclusion in a concrete situation. (In a case where, by hypothesis, there is no practical possibility of breaking out of the cycle, there is an impasse. But in real life, situations change and impasses are temporary, not permanent features.)

As for the principal argument, that there is no benefit rightfully available for distribution until the original wrong has been compensated, our example suggests that this begs the question in a counter-intuitive way. It is the prior semester’s places that were wrongfully distributed; they cannot be redistributed. There are now, let us say, forty new places open to students for the next semester, and there is no prima facie reason for denying equal access to these according to the Principle of Distributive Justice. None of the new applicants gained anything from the wrongful policy. T o override equality of access for the sake of the Principle of Compensatory Justice cannot have the effect of denying that the Principle of Distributive Justice was violated. If our priority principle is accepted, then it was rightfully violated; but nevertheless, an injustice was committed and must be acknowledged. The violation is morally justified, yet it offends against the Principle of Distributive Justice. This is precisely the conflict referred to in the title. The priority principle merely identifies the policy that is less unjust (and therefore justified).

Let us consider another example of the sort of affirmative action that has caused much resentment on the part of white males: an industry funds a programme to train a certain number of unskilled workers for semi-skilled jobs, and gives preference to minority workers. The whites who are rejected but who are equally (or better) qualified in terms of aptitude, experience, seniority, etc., now constitute a new class of persons who have suffered from a violation of the Principle of Distributive Justice since they have a less than equal chance at the programme. (Of course, if funds for the programme are made available just for the purpose of compensation, and would not have been available otherwise, then there is no violation of the Principle of Distribu- tive Justice in rejecting the white males. But I am assuming in this example that the training programme is motivated by the industry’s need for trained workers.) The members of this class become entitled to compensation for the same reason that the members of the original wronged class (the minority workers) were entitled to compensation. Compensation for both the old and new wrongs within the industry must in practice be gradual and imperfect. But a two-part precept can be articulated. To satisfir the principle of the priority of the Compensatory Justice, each newly wronged class deserves, like the old, a better than equal chance at new benefits as they become

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available; and the accelerated creation of new opportunities is a duty of those within the enterprise who are responsible for the old discriminatory patterns, and those who, directly or indirectly, benefited jrom them.

None of the above is meant to deny the vast moral difference between discrimina- tion and reverse discrimination. The former is an unmitigated evil, stemming from human ignorance and ill will or worse; the latter stems from the desire to help those who suffered from injustice-which is the motive behind our recognition of the Principle of Compensatory Justice. But some writers have, I believe, exaggerated the effect of this moral difference. For example, in the article cited above (see note 6) Sher appears to treat reverse discrimination as just an unintended result of carrying out compensatory policies through preferential treatment, and therefore not unfair at all. This seems to me to be hedging. A foreseeable unfair result is no less unfair for being unintended. He also points out that the new by-passed group will not suffer indirect harms such as the loss of self-esteem of the original victims. True, but again, while this difference provides support for the priority of the Principle of Compensa- tory Justice, it does not have the effect of negating the Principle of Distributive Justice. It will however entail differences in appropriate methods of compensation. Some of these are explored in the following section. My final comments concern the virtues and limitation of money as a tool for compensatory social policies; and in conjunction with that I return to the issue of the indirect effects of discrimination.

(a) Virtues: It is no coincidence that it should be the scarcity of some resource or other (jobs, facilities, etc.) that frequently underlies conflicts between the Principles of Compensatory and Distributive Justice. For the original motivation to discriminate unfairly was itself, very likely, a competitive response to a scarce resource. But where love of money is the root of all evil (injustice), it may also prove to be the way to the solution. Financial compensation for the burdens of unfair discrimination will often be very appropriate indeed, and has the advantage of causing no new problem of discrimination: for compensation for past public injustices, by paying the victim out of public tax revenues, distributes the burden as fairly (or unfairly) as the tax base. In the case of private injustices, (e.g. systematically lower pay to women in a private enterprise) the cost of compensation for past injustices could be spread around among those who profited from it, whether they knew it or not (in our example, by cutting dividends and withholding pay-rises for a time); and again, the compensation need not create a new problem of discrimination.

In general it seems that the best chance of avoiding conflict between the two principles of justice is to find a reasonable formula for translating the unfairly suffered burdens into financial terms. This can apply to some long-range, indirect effects as well. For example, in the case of students who are unfairly delayed in preparing for their career, owing to discriminatory admission policies, the delay can reasonably be translated into the difference in expected earnings.

Another clear advantage of being aware of the possibilities of financial compensation is that any compromise programme-where as a stop-gap measure a new wronged group is created while the old one is compensated-can include in its very formulation the exact manner and timetable for compensation. If it is principally a matter of money, then a commitment to compensation can be made explicit. (An example will be given below.)

(b) Limitations: Clearly there will be burdens that could not be compensated for by money. The clearest example is that of policies that assign burdens whose effect could (predictably) involve permanent disability or death. We feel strongly that scrupulously

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fair distribution of such burdens is essential, precisely because we cannot conceive of an adequate way of compensating for the losses at stake. An unfair military draft in time of war is the source of irreparable injustices. In this case the problem is not one of conflict between a policy that satisfied Compensatory Justice on the one hand, and the demands of Distributive Justice on the other; rather, there will be no policy that satisfied the former, since there is no way of removing the burden, nor of translating it into terms of financial loss.

But there are more mundane contexts as well where money cannot compensate for all the important aspects of burdens that persons may have unfairly suffered. Other modes of compensation must then be explored; and, perhaps more importantly, changes that are necessary to prevent the continuation of unfair discrimination have to be made; for the conditions that perpetuate the practice may canstitute the greatest source of indirect harm (poor self-image, etc.). And since compensation requires removal of all harms, direct or indirect, action in this arena is a clear duty. Now the changes needed may have nothing to do with money, but rather they may depend on habits, traditions, and the image associated with the characteristic that defines the members of the wronged group. These may indeed be the hardest changes to make without creating a new wronged class.

Let us consider the large class of cases in which denials of specific opportunities to members of certain groups over generations had the predictable indirect effect of structuring the conditions for the use of those opportunities in a way that tends to build in and perpetuate the bias. It is the stubborn pervasiveness of such burdensome conditions, through their multiple and far-reaching effects, that makes financial compensation insufficient as a remedy. We know that in spite of the money some aspects of the unfair burdens will persist [9]. It is for this reason that reverse discrimination is offered as an admittedly unfair means of meeting the demands of Compensatory Justice. But the members of the newly wronged group may be such that their burdens are more plausibly compensated for financially, since no long-range perpetuating factors will be present in their case.

For example, let us consider affirmative action programmes in businesses, designed to overcome precisely the sort of perpetuating factors just mentioned. In compliance with such a programme a woman clerical worker, Sara Brown, is promoted to assistant manager over a male rival who is judged to be equally or slightly better qualified. What is being compensated for is the indirect harm caused by generations of male-dominated business management, which resulted in a less than equal chance at promotion for women in clerical positions. Financial compensation is not appropriate in this case; it would not remove the burden of unequal chance at promotion. As has often been observed, this burden is difficult to overcome because its sources are frequently unconscious. Very likely the managers tend to see the feminine characteristics of the clerks as liabilities simply because they are foreign to the established model of success, and so they will judge female candidates to be “less than equal” in qualifications; or the candidates themselves will lack self-confidence; or will fail to apply because of the absence of role models; etc. On the other hand, the members of the newly wronged class, free of such recalcitrant burdens, could more appropriately be compensated financially; greater pay-increases for young men whose promotions are being delayed in comparison to their predecessors’ would seem in order, and could be coupled with reduced or withheld increases for the more highly placed white men who, in general, are presumed to have had a better than equal chance at the promotions they have earned [lo].

Compensation and Conflict 12 1

There is a thorny, unresolved question on which I must now comment in relation to the above example. Does the manager (acting for the firm) owe compensation to Sara Brown just because she is a member of the class ‘women clerical workers’, a class which has been widely discriminated against in promotion decisions, or must he also show that Sara herself was the victim of discrimination based on her membership in that class? Strong arguments can be found in the literature on both sides of this issue, and the disagreement can be traced, at least in some cases, to different factual assumptions about the likely effects of racial and sexual discrimination on the individual members of the group. As long as the dispute is carried on in the abstract it seems difficult indeed to resolve. But real-life managers and administrators need only answer a more limited question: “In this position, with this background, and with these people affected, how should I apply the Principle of Compensatory Justice? I must try to minimise the injustice that may result, while being constrained by the need for efficient operation of the business and by my incomplete knowledge of the background and potential abilities of the individual people affected.”

Sara Brown’s manager need not wait for agreement on a general answer to the question. On the model presented at the beginning of this paper, he will begin by looking for an answer to the first question-what actual changes in this situation are required by Compensatory Justice? Assuming that he recognises the prevalence, in the past, of adverse discrimination, he will look for ways of changing “those aspects of the lives of the members of the wronged group which are generally predictable causal results.. . (p. 114).” Let us assume that he has already done some preliminary work, using various tactics for encouraging promising women clerks to apply for higher positions. Sara Brown is one such person. He judges, let us suppose, that she is likely to learn quickly and do a creditable job in the higher position; and that, considering the history of the firm and the attitudes of the employees, her promotion will have a positive effect on equalising the chances of advancement of other women clerks in the future (the future-directed corollary of Compensatory Justice.) Such judgments will lead him to decide on some degree of preference of Sara over male rivals. (One can embellish the case with details almost indefinitely. The supervisor always gives the more challenging tasks to men rather than women; therefore who knows what additional hidden talents Sara might have?. . . etc.) Alternatively, the facts might tend the other way. She has had a first-rate college education, has been offered opportuni- ties to exercise higher skills but has failed, showing no interest in the business. Similar kinds of personal details would have to be examined in relation to the rival candidates, and in regard to answers to the second and third questions and the available alternatives for distributing the cost of compensation. My point is that there may be a great deal of relevant information available in a given case that can reasonably tip the balance one way or the other, so that one need not appeal to a general answer to the question whether certain native characteristics are or are not sufficient to merit compensation. Perhaps the answer is simply, “That depends”. In our example, Sara Brown’s being a member of ‘female clerks’ is a strong prima facie reason for holding that she deserves better than equal opportunities at promotion. But this prima facie reason can be defeated by other information about her or the rival candidates. Of course in a very large firm the relevant information may be too cursory. In such situations prima facie reasons will have greater weight. That is why I find great merit in Nickel’s middle position, arguing that compensation is owed to the individual, not the group, but it may be administered on a group basis [ll].

Unfortunately proponents of affirmative action programmes do not always make it

122 N. L. Ranken

clear that these programmes do involve unfair discrimination. But this must be admitted. Justice demands recognition of any newly wronged class, some financial compensation where appropriate, and a concerted effort to increase the number of opportunities appropriate to the needs of those wronged. Failing that, the newly wronged persons will feel themselves to be victims of retribution, which would be totally inappropriate. Reverse discrimination has nothing at all to do with retribution. It is an ill effect of a situation in which there is a duty to compensation and a certain scarcity of resources usually coupled with recalcitrant indirect effects of past wrongs. It must be recognised as an injustice and precepts for its removal or attenuation must be adopted.

Philosophers are limited to proposing general precepts and defending them in the light of general principles of justice. The concrete solutions depend on the imagidation and will of policy-makers and of all who are involved in the implementation and acceptance of policies designed to remedy injustices. We cannot know just how strongly the recognition of what justice demands will affect the willingness of people to make the sacrifices required. But if there is a sense of justice, as Rawls believes, then being clear about injustices is not futile. What else can a philosopher do [12]?

Correspondence: Nani L. Ranken, Indiana University at Kokomo, 2300 South Wash- ington Street, Kokomo, Indiana 46902, USA.

NOTES

[ 11 Examples are, GOLDMAN, ALVIN (1979) Justice and Reverse Discrimination (Princeton, Princeton University Press) and FISHKIN, JAMES (1984) Justice, Equal Opportunity, and the Family (New Haven, Yale University Press).

[2] Moral theory and application, Social Theory and Practice, 10, pp. 97-120. [3] There are exceptions of course: In ‘Preferential hiring’, J. J. Thompson argues on libertarian grounds

that there is no duty to distribute benefits on a principle of equal opportunity. Excellent argumentsfor that principle are given by both GOLDMAN and FISHKIN, op. cit.

[4] An excellent explication of what might constitute unfair grounds for discrimination can be found in Fishkin’s defence of the principles of merit and fair competition. He argues that “native characteristics should not have an explicit role.. . ” (op. cit., pp. 22 and 28-9).

[5] Fishkin states the conflict in a similar way (p. 104): “ . . .compensation for previous violations of merit, that is discrimination, may require present violations of merit, that is, preferential treatment.” But he then appears to deny that compensation is an independent requirement of justice and treats it simply as a’corollary of the merit principle. It seems to me counter-intuitive to treat it in this fashion: victims of injustice deserve compensation just because they have been wronged and not merely in order to make the competition fair. Compensation is not simply handicap, though it will sometimes have that effect.

[6] SHER, GEORGE (1975) Justifying reverse discrimination, Philosophy and Public Affairs, 4, pp. 164-170, and GOLDMAN, op. cit.

[7] GOLDMAN, op. cit., pp. 121 and 126-7. [8] Ibid., pp. 123-4. [9] THOMSON, J.J. (1973) in Preferential hiring, Philosophy and Public Affairs, 2, p. 363. Here Thomson

makes the point that jobs are the most appropriate way of compensating for the systematic exclusion of minorities and women from the mainstream.

[ lo] J. J. THOMSON, op. cit., recommends similar policies for spreading the burden of compensation, though she denies that there is a newly wronged group.

[ l l ] NICKEL, J. (1974) Should reparations be to individuals or to groups? Analysis, 34, pp. 154-160. [ 121 I am grateful to Larry May of Purdue University for many helpful comments on an earlier draft of this

paper.