The following question was posed to the NY Times' resident ethics expert:
While interviewing law students for jobs as paid summer interns and full-time associates for my firm, I noticed several had résumés listing their activities in the Federalist Society. Some of my partners have conservative views similar to those of the society, but I do not. These students’ politics would not affect their professional function, but my review is meant to consider their judgment and personality (though I don’t need to give reasons for the assessments given). May I recommend not hiring someone solely because of his or her politics?
The Times' Randy Cohen responded:
You may not. If candidates can do the job, bathe regularly and work well with others, you should hire them. As you note, their “politics do not affect their function.” Is it your position that only people who share your politics should be allowed to make a living? It was odious when membership in the Federalist Society was all but required for some jobs in the Justice Department; it is no more appealing to make that affiliation a bar to employment at your firm.Unfortunately, Cohen reports that:
I am tempted to believe that those whose politics differ from mine lack “judgment and personality” and taste in clothes and finesse on the dance floor. But this proposition is unsupportable. As to judgment: politics is famously a subject about which honorable people differ. As to personality — whatever that means — even in an era when radio blowhards fulminate and Tea Party crackpots threaten violence against their political foes, it is possible to disagree with civility. You must abandon your mini-McCarthyism and cease denying employment to those you deem politically misguided.
UPDATE: Believing that all the applicants were qualified, but able to hire only a few, this person recommended rejecting each member of the Federalist Society.
This episode will come as no surprise to those who believe that prejudice against conservatives is far more rampant in law firm and law school faculty hiring than any other form of discrimination. (My own view, FWIW, is that such bias is rampant but that the underrepresentation of conservatives is also due to other non-bias factors, such as network effects, as well. )
Some commentators at places like the ABA Journal and Above the Law have no problem with taking political identification into account in hiring decisions.
I have the misfortune of being on the appointments committee here at UCLA. Assume I have been frustrated by our lack of ideological diversity for a long time and am concerned that this year is shaping up as another year in which only left-liberals need have bothered to apply. (Actually, UCLA is a pretty pleasant place for conservatives to work. Although it would be nice if more of them got to enjoy the pleasures of this place.) So suppose this story was the straw that broke the camel's back. Suppose I decided it was time for some tit for tat. Every time somebody with the Federalist Society on their resume gets voted down, I vote down a member of the American Constitution Society.
How'd you like them apples, Mr. Hiring Partner? After all, sauce for the goose is sauce for the gander, right?
No. Two wrongs do not make a right.
In fact, I can think of nothing more corrosive for intra-organizational relations than putting one's personal ideological preferences ahead of making decisions that are in the best interest of the organization. Indeed, making decisions like hiring based on anything other than the merits is a breach of that duty of good faith and loyalty that members of an organization owe to it and their fellow members. As Justice Cardozo observed of fiduciaries in Meinhard v. Salmon, "thought of self is to be renounced."
Trust among members of an organization like a law firm or a law school faulty is essential. It acts as a lubricant that reduces social friction and thereby reduces the transaction costs associated with making group decisions.
Once a member starts putting his or her own biases ahead of the interests of the group, trust goes out the window. Conflict becomes more likely, Effort and costs are expended in monitoring one another. Consensus becomes harder to achieve.
Granted, there is some theoretical evidence that tit for tat is an effective strategy in certain game theory situations. In the real world, however, tit for tat often leads to a death spiral of retaliation. I would much prefer to live in an organization in which social norms promote turning the other cheek rather than retaliation. After all, the Golden Rule asks us to do onto others as we would have them do unto us, not to do as they have done to us. Love for neighbor is not premised on self-interest. Which is precisely why I don't play tit for tat in hiring and precisely why Mr. Hiring Partner's conduct was wrong.
The tough question is how an organization ought to respond to the breach of trust by someone like Mr. Hiring Partner. Naming and shaming? Expulsion? Monitoring?
HT: Paul Caron.
