It is possible that I am naive, since this observation often has been
offered to me by others who deal with my comments.  However, I am still
curious.  What possible legitimate employer interest exists in the
genitalia of a feminist legal scholar?
 
Perhaps I am a misguided proponent of affirmative action.  Please correct
me if I am wrong.
 
Is not affirmative action about selecting (or rewarding) employees from a
pool of objectively qualified applicants?  Is not affirmative action about
not selecting via reliance on subjective assessments of "more" qualified?
Is not affirmative action about building the pool of qualified applicants,
and then and only then (if ever) allowing contamination of the process by
selecting a qualified applicant based on protected class status?  Does not
affirmative action allow for the possibility of objective criteria for
identifying "more" qualified applicants, which would serve the legitimate
business interests of the employer, and the employer may, but need not,
trim the pool to only include the "more" qualified applicant?
Additionally, does not affirmative aciton require _some_ evidence of a
current institutional bias to perceive "qualified" as springing from but
one fraction of a protected class (e.g., women are qualified, but men are
not)?  [Such evidence being absurdly easy to produce if the employer is
willing to make declarations against the employer's interest.]  The current
institutional bias may be proved either by showing subjective intent of
today's decision makers, or by showing an embedded employee base
objectively (i.e., statistics) reflective of a past bias (e.g., only MEN
were hired for feminist legal scholar positions).
 
I am genuinely curious.  If it is not the genitalia, but the mind (i.e.,
perspective) of the scholar, then other questions surface.  If a male is a
talented fraud with respect to the female gender's "perspective" and thus
can "more" effectively portray the female gender's "perspective" than a
"qualified" female, is not this male "more" qualified?  What is the
legitimate employer interest in excluding a "more" qualified applicant
from the pool of "qualified" applicants?  Is female genitalia a BFOQ for
the position feminist legal scholar?
 
Lastly, do I believe that any one of us has ever successfully purged all
(or even most) of our discriminatory social/psychological programming when
making employment decision?  No.  I assume we always operate subject to
that burden.  However, I find the effort to extinguish such discrimination
is not furthered by quickly yielding to it, and less still furthered by
creating institutional structures that encourage such discrimination.  A
far more vexing question is institutional tolerance, given I assume it if
foolish for the law to rail against a nearly immutable human condition.  I
am willing to assert that institutional structures and responses should be
different for actions as compared to beliefs.
 
Eagerly awaiting your insights,
Michael
 
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=  Michael J. O'Hara, J.D., Ph.D.      [log in to unmask]  =
=  Law and Society Dept.,   Univ. Neb. at  Omaha  68182    =
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