‘Equal Rights’ and ‘Equal Opportunity Employer’: A ‘South Park’ Philosopher’s Very Different Take
“We’ve all learned something important today,” is the signature closing catchphrase uttered by the likes of gentle, potty-mouthed “South Park” 8-year-old cartoon character “Stan Marsh”; his buddy, “Kyle Broflovski” and other characters, who give Comedy Central’s South Park episodes a mock air of gravitas in end-of-episode summations.
Well, I learned something from South Park recently—specifically from reading an essay about “equal rights” in the book South Park and Philosophy.
Like the zany, often surreal hit cartoon series itself, South Park and Philosophy (edited by Robert Arp, Blackwell Publishers, 2007)—a compilation of philosophical reflections on South Park—makes some very serious points, one of them being that the demand for “equal rights” (or, by implication, “equal opportunity”) is misconceived.
Instead, the argument in one of its essays purports, the demand for equal rights should be recast as the demand for new or revised categories of rights as “expanded rights” (and “expanded opportunity”, or even, as argued below, for “reversed rights” and “reversed opportunity”).
Equal Rights vs. Expanded Rights
Although the essay “You Can’t Get Married, You’re Fa*****s: Mrs. Garrison and the Gay Marriage Debate”, by Jacob M. Held, Assistant Professor of Philosophy and Religion at Central Arkansas University, focuses on same-sex marriage rights and opportunities, its takeaway lesson also applies to employment rights and opportunities.
Like the nasty intentions of “Eric Cartman”, the roly-poly schemer of the South Park character quartet, the central point of the essay, as I interpret it, is undeniable, despite any appearances to the contrary:
Demands for “equal rights”, including in the arena of employment, are really (or should be recast as) claims or demands for expanded rights (or, in rarer instances, “reversed rights”, discussed below).
The Case of “Equal Voting Rights”
To see how easily this point can be made, consider the example of voting rights: Suppose the South Park kids demand the right to vote in presidential elections. Superficially, this appears to be the demand for “equal rights”—the demand to have rights equal to those of adults. But think about this a little more deeply: Exactly which right is it that they are claiming is or should be equally theirs? The (unrestricted) right to vote? No.
Nobody, not even an adult, has “the right to vote” without restriction. Hence, voting rights are “unequal” in virtue of being exclusionary. All rights, including the right to vote, are conditional, exclusionary and limited. As a minimum, to have even one right—any right, you have to be human, an animal of the sort defended by PETA, or a corporation (including those PETA assails). That excludes computers, robots and rigged voting machines (that cast ballots against voters’ wishes).
The specific right to vote in a U.S. election is limited to
- those at least 18 years old on or before election day
- those who have lived in the state for a period of time (usually 30 days)
- those not convicted of a disqualifying felony (or who have voting rights restored)
- those who have not been legally declared “mentally incompetent” by a court.
Anybody and anything else is excluded.
Therefore the South Park kids could not possibly be demanding an “equal right”, because that would be a demand for the same restricted right to vote, if all the stated requirements for having that right, including being 18, were met (which they are not, in the kids’ case).
They also could not possibly be demanding the “right to vote” in a U.S. election and in an unrestricted sense, because such a right, with no restrictions or limitations, would exclude no one—including Turkish farmers and their goats. No such universal U.S. voting right “for all” is currently recognized and never will be.
Equal Marriage Rights? Huh?
What Stan, Eric, Kyle and Kenny (the red-hooded, always killed, always resurrected Lazarus of South Park) would or should actually be demanding is an extension or expansion of the right to vote to kids. Equivalently, this means creation of a new category of voter, with a new right (not an equal right) with different conditions that include being a kid as an alternative to being an adult.
In connection with same-sex marriage rights, Dr. Held, writing in 2006-2007, puts it this way: “Gays do not want equal rights; they want the creation of an entirely new category of rights….As it stands (note: still in many jurisdictions in 2012), nobody has the right to marry someone of the same sex. Straights do not possess that right any more than gays. And the right that straights have, to marry one partner of the opposite sex, is also shared by gays.”
Hence, on the first interpretation, there is no marriage right to be shared equally; on the second, there’s a right that already exists, but not the one that is desired.
No Unrestricted, Unconditional Rights
Further unpacking his comments, it is clear that Dr. Held is correctly citing the (historical) fact that straight people do (did) not have the unrestricted right to marry someone of the same sex, if only because father-son and mother-daughter marriages are disallowed, and also because in many jurisdictions same-sex marriage rights are equally denied everyone.
So there is no right that straights have to which an equal claim by gays could be made. No, the “right to marry whomever one chooses” is not the right being claimed or at issue, since such a right, which does not exist, would allow marrying one’s mother, brother, a corpse or someone already married.
The fact that straights have the right to marry someone of the same sex, e.g., a same-sex neighbor, does not mean they have the right to marry anyone of the same sex, e.g., their opposite sex siblings or parent, which is prohibited by incest laws.
Couched in employment terms, an employer professing to be an “equal opportunity employer”, can claim the right to reject someone (i.e., some specific individual) who is the same sex as (s)he, without also claiming the right to reject anyone (i.e., ambiguously, yet theoretically, everyone, in the sense of “any randomly chosen” one) who is the same sex.
A demand for this latter right—the right to reject anyone, i.e., everyone, in a category—is too consistent with the demand for the right to discriminate on the basis of group membership to be legislatively recognized and enforced.
The professor’s point is that any demand for a same-sex marriage right is in fact not a claim to an equal right, but to an expanded right—a right that is more inclusive, less restrictive, and therefore an entirely new category or expanded formulation of a right.
Joining the “Equal Opportunity Employer” Club
Now, apply this logic to the workplace and to the concept of an “equal opportunity employer”. The definition of an “equal opportunity employer” is “an employer who agrees not to discriminate against any employee or job applicant because of race, color, religion, national origin, sex, physical or mental disability, or age”. Think of the workplace as being like a club with membership rules. Suppose a job seeker wants to “join”, but doesn’t have the right to “fair consideration”, because of “discrimination” of some sort, based on, say, being a smoker.
It’s as though (s)he’s trying to join the “Palm Springs Non-Smokers Golf Club” as its first chain-smoker.
The right to join such a (fictitious) club would be based on restrictive membership criteria. If you want to join the non-smokers golf club, you have to be sponsored, pay the (outrageous) fees, wear proper golf attire, play by the rules and—crucially—be a non-smoker. Having an “equal right” to join means having the right to be sponsored by a member, but on the condition that you meet all of the other membership conditions, including being a non-smoker, which apply to all existing members and sponsored individuals, equally.
Remember, a right always has three dimensions: the behaviors it allows, the restrictions that apply and the categories of agents it specifies as having those permissions and being subject to those restrictions.
Therefore, the demand for an “equal right” or “equal opportunity” regarding the golf club is unnecessary, since it already exists: Like everyone else, you have the right to try to join (and maybe even the right to expect acceptance), if (and a big “if”) you meet the conditions for having the right, e.g., by being sponsored and by quitting smoking.
Accordingly, in the workplace or at golf clubs, those who are excluded by existing membership rules, biases or policies, are actually demanding expansion of the categories of eligibility (not expansion of requirements) to include themselves, e.g., smokers, rather than seeking some “equal right”.
Hence, being an “equal opportunity employer” means accepting the current (and possibly future) expansion of the categories of people who will be offered the opportunity to be fairly and seriously considered (even if not eventually hired) for a job.
The Right to Left
This distinction between “equal rights” and “expanded rights” is not some or any philosopher’s hair-splitting quibble: Failure to grasp and respect the difference comes with real-world risks and costs. This can be illustrated with a less emotionally-loaded rights case: the right (and duty) to drive in the U.S. and Canada on the right side of the road, which is, of course, the right (not the left) side.
(However strange it may seem, having a duty entails having a right, for if one does not have the right to do X, how can one have the duty? It’s the same for “must” and “can”: There’s no point insisting that I morally must feed everyone in the world, if I cannot. That’s like having responsibility without authority on the job. So, if we have the duty to drive on the right, we also have the right to do so—if not always the right-of-way.)
Imagine, for some wacky South Parkish reason, left-handed people banded together to demand the right to drive exclusively on the left throughout the U.S. or Canada (or right-handed people launching a similar crusade for driving on the right in the U.K. or Japan). If they were to demand “equal rights” as those afforded right-handed people in the U.S. and won, they would then have the right to drive on the right—a right (and duty) they already have!
On the other hand (literally), if they were to demand the right to drive on the left, their demand would be for a new right, not an equal right, since nobody in the U.S. or Canada has the right to exclusively drive on the left side of a two-way road.
Clearly, demanding an “equal right” in this case could only muddy, confuse and inflame the debate, since the “equal rights” demand would be only inarticulately articulated, and therefore highly vulnerable to confused and conflicting interpretations.
Other practical consequences of failing to recognize the difference between “equal rights” and “expanded rights” in this and other instances include this one: greater vulnerability to “slippery slope” public protests and legislative resistance. Here’s why.
Equal rights opponent: “Equal rights” for left-handers? Why, the next thing you know is that ambidextrous drivers will demand the right to drive exclusively down the middle of the road! That’s the slippery slope to chaos!” This failure to recognize that all rights are restricted to specific categories, the expansion of which can and should be subjected to careful review, can fuel a panic about opening an “equal rights” floodgate to all comers who want to “be equal to everyone else” and drive any way they wish, perhaps even randomly or blindfolded. Once the floodgates are opened, the argument goes, we will all be washed down the slippery slope that flood will inundate.
That confusion also provides any opponent of “equal opportunity” employment policies a wedge: “Why, if we can’t hire on the basis of age, race, religion, mental disability or gender, the next thing you know, we won’t be able to hire on the basis of outstanding intelligence, rich experience, unique talent or distinguished motivation!”
After all, “equal opportunity” and “equal rights” sound so much like “equal opportunity and equal rights for all”. That’s because embedded in this popular misconception about rights is the mistaken expectation that when they are recognized, they should, to the fullest extent possible, be “equal rights”. And rights that are equal for only some are, in fact, unequal. Right?
As the “right to left” example can demonstrate, a shift from talk about “equal rights” to “expanded rights”, will prevent that kind of confusion: If the left-handers give up their incoherent demand for “equal rights” and shift gears to claiming “expanded rights”, the discussion and legislative steps can proceed much more surely and quickly.
Reversed Rights and Fresh Insights
Focusing the narrative on “expanded rights” instead of “equal rights” forces a close examination of the existing privileged and restricted categories in a way that requires intelligent and wise reflection on them:
Legislator: “Hmmm..expand the right to drive to the left. Well, the problem is that this is a category that cannot be expanded, because of a forced binary safety-based choice. The right is limited to driving on only one side of the road (except for passing where allowed) for good reason—to prevent head-on collisions. Of course we could accept a ‘right to left’ and make it universal, by legislating ‘left-side only’ traffic laws.”
However, that would be neither “equal rights” nor “expanded rights”, instead being tantamount to “reversed rights” (reversed for all, equally). Everybody accustomed to driving on the right would be required to join the “lefties” and to drive on the left.
As Dr. Held put it, “We need reasons why we grant rights to some, but not to others.” Clamoring for “equal rights”, in virtue of the confusions that can plague demands for them, is far less likely to lead to insight into underlying rationales for rights than a careful discussion of “limited”, “expanded”, “contracted” or “reversed rights” and their associated governed categories would.
So, thanks to Dr. Held, we’ve all learned something today…
… If you’re heading down to South Park and through its philosophical terrain, be sure to stick to the right side of the rights debate.