Question Re: The Fallacy of Removing Non-Discrimination
Dec 26, 2013
[This post is 5.5 pages long]
Question from Post of Sat, Dec. 21 2013 10:28 AM:
“Please explain what parts of the code of ethics outside of Principle 4 specifically address long standing, systematic and large scale discrimination against groups including that all groups have equitable access to society’s resources and opportunities?”
________ _________ _________ _________
The question above was a response to my argument that there is no need for the social justice requirement to address the issue of discrimination because that issue is dealt with in nearly a dozen other sections of the Code of Ethics. Most significantly, Principle 5, Procedural Justice, which requires therapists to follow the laws, already entails following dozens of laws that address issues of longstanding discrimination and the redistribution of funds and resources to the disadvantaged. The question, then, is based on (1) a false premise regarding the purpose of the Code of Ethics, (2) the unrealistic and grandiose expectation that one profession can assure that society’s resources are available to all in a fair and equitable manner and (3) the false assumption that existing laws do not already address the issues mentioned.
I will address these issues and show how Procedural Justice offers a legitimate, realistic and coherent means of addressing concerns over discrimination that are consistent with the values of inclusion and diversity contained in the AOTA Code of Ethics.
This question is based on the false premise that the purpose of the Code of Ethics is to serve as the basis of a public policy agenda that is meant to promote the large scale redistribution of wealth and privileges in society. This comes through in the expressed desire contained in the passage above for “all groups [to] have equitable access to society’s resources and opportunities” and in the other statement in that post regarding “assuring that society’s resources are distributed and available to all in a fair and equitable manner.”
A profession’s code of ethics is supposed to guide individual practitioners in the conduct of their profession. It is a not a statement about the political reorganization of society. Our profession has a social setting. It is the country of the United States. It is made of a whole slew of laws and institutions already in existence. Our profession’s Code of Ethics is meant to guide practitioner’s conduct in the various realms practitioners find themselves within this social setting.
In its stated purpose, the Code is about individual conduct for occupational therapy personnel. The Preamble states that the AOTA Code of Ethics “is a public statement of principles used to promote and maintain high standards of conduct within the profession.” Additionally, the Code states that it is meant to be “a guide to professional conduct when ethical issues arise.” On top of this, each of the principles contains a subtitle with the phrase “occupational therapy personnel shall,” a phrase that is repeated in the preface to each list of alphabetized subsections, indicating that this is about how occupational therapy personnel are to conduct themselves. The Preamble also gives us the three areas where its main concern lies. It states that the Code of Ethics “was tailored to address the most prevalent ethical concerns of the profession in education, research, and practice.”
All of this indicates that the function of the Code of Ethics is to establish principles of conduct necessary to the ethical practice of the profession, not the promotion of a political agenda. And for this reason, the social justice requirement represents a contradiction within the Code. The social justice requirement promotes the ideal of an activist government premised on egalitarian redistributionism.
To the extent that a profession’s code of ethics delves into promoting forms of government or specific government policies, it abandons its legitimate claim to being a code of ethics. Such statements transform a code of ethics into a document for political advocacy. This is why the members of the Ethics Commission have been attempting (without success) to avoid stating that the Code's social justice is a political requirement (please Chapter 7 of Beware the Googlers for a discussion on this subject).
Expecting a Code of Ethics which is intended to guide individual conduct in one’s professional capacity to also address “long standing, systematic and large scale discrimination against groups including that all groups have equitable access to society’s resources and opportunities” is based on the false premise that the purpose of the document is to promote government policies. This leads to a second problem with the question posed above: the unrealistic and grandiose expectation that one profession can assure that society’s resources are available to all in a fair and equitable manner.
The question posted on Sat, Dec. 21 2013 10:28 AM is also based in the unrealistic assumption that one of the purposes of the social justice requirement is to “assur[e] that society’s resources are distributed and available to all in a fair and equitable manner.” This statement was made in direct response to the argument that the issue of non-discrimination is already adequately treated in various other parts of the Code of Ethics. This is the full quote in the post from which the above was taken:
“Making decisions as an individual to treat others fairly is not the same as assuring that society’s resources are distributed and available to all in a fair and equitable manner.”
All that an individual therapist can do in the execution of her work is treat others fairly in accordance with institutional policies and state and federal laws. This may occur on a one-to-one-level or it may occur in one’s decisions as a manager where decision-making affects many within an organization. But not one occupational therapist, nor the entirety of the profession of occupational therapy, can “assure that society’s resources are distributed and available to all in a fair and equitable way.” This is simply a fantastical, unrealistic, and grandiose presumption of what a requirement in a profession’s code of ethics can do.
On the other hand, using the existing principles of the Code (except for social justice) to treat others, whether patients or colleagues, in a fair and non-discriminatory fashion that is consistent with institutional policies and government laws is a legitimate approach to these problems, an approach that is also consistent with the purpose of a profession’s code of ethics.
Our position as members of the profession of occupational therapy is completely unlike that of the passengers on the Mayflower. Blown off course and about to set foot on what was virgin territory for them, the passengers on the Mayflower had to originate a set of rules that would govern conduct in a new society. Thus the Mayflower Compact. We are not in that position. Our profession exists within a developed country and in a matrix of laws, bureaucracies and institutions of which we are only a small part. Within all of these, there are already laws and programs in place to address longstanding discrimination and inequity.
Included in the Code of Ethics is Principle 5, Procedural Justice, requiring therapists to follow all government laws and adhere to institutional policies in their place of employment. The goal of Principle 5 is for therapists to ensure the fair treatment of others by applying rules impartially and consistently. By following the laws designed to address inequality and discrimination in an impartial way, individual therapists can address issues of systematic and longstanding discrimination and inequity.
Recall that the Code of Ethics was “tailored to address the most prevalent ethical concerns of the profession in education, research, and practice.” The rest of this section will address these three areas of concern, starting with research.
In the realm of medical research, there is a law requiring the protection of human subjects. The law is informally known as “The Common Rule.” It is found in Title 45 of the Code of Federal Regulations Part 46. It sets ethics standards for all government-funded research. In addition to this law is the NIH Revitalization Act of 1993, requiring that women and minority groups be included in research funded through the NIH.
The combination of these laws were designed to (1) provide protection from discrimination for all groups in medical research and (2) ensure that all groups benefit from that research. Thus, there is no need for a social justice requirement to deal with these issues. Simply by following procedural justice and obeying the laws designed to address discrimination, an individual therapist becomes a vehicle for addressing issues of longstanding and systematic discrimination. These laws apply to government-funded research.
In those areas of research not funded by the government, the common practice among institutions is to follow government standards. Part of the process of protecting groups from longstanding discrimination involves Institutional Review Boards and practices established by The Belmont Report. If an individual therapist finds that some non-government funded research involves illegal or unethical conduct such as taking advantage of or discriminating against certain groups, Principle 1 Beneficence, Subsection M of the Code of Ethics requires therapists to report such conduct to the appropriate authorities.
Similarly, in the realm of education, the Civil Rights Act was created to prevent discrimination. As originally written, the law was designed to ensure that all groups were treated the same. As it has been interpreted by the courts, in actual practice the law permits procedures designed to give special privileges in admissions to members of groups deemed disadvantaged due to historical discrimination. And in actual practice, institutions expect a certain percentage of certain groups to be part of their classes, which means they permit members of historically discriminated groups to be admitted even when their tests and grades are markedly below those of individuals from groups that tend to be academically successful.
The U.S. Department of Education also has a division titled The Office for Civil Rights (OCR). Its stated purpose is as follows:
“We serve student populations facing discrimination and the advocates and institutions promoting systemic solutions to civil rights problems. An important responsibility is resolving complaints of discrimination. Agency-initiated cases, typically called compliance reviews, permit OCR to target resources on compliance problems that appear particularly acute. OCR also provides technical assistance to help institutions achieve voluntary compliance with the civil rights laws that OCR enforces. An important part of OCR's technical assistance is partnerships designed to develop creative approaches to preventing and addressing discrimination” (http://www2.ed.gov/ocr).
Among the anti-discrimination laws enforced by this bureaucracy are:
All of these laws address the issue of discrimination. Individual therapists can address issues of longstanding and systematic discrimination by obeying these laws. If they find that there is some unethical or illegal conduct affecting members that are covered by these laws, Principle 1 Beneficence, Subsection M of the AOTA Code of Ethics, as mentioned above, requires therapists to report such conduct to the appropriate authorities.
The third area of concern mentioned by the Code of Ethics, aside from research and education, is practice. Practice will often intersect with the other two, particularly education. One program that directs services to children with disabilities is The Individuals with Disabilities Education Act (IDEA). IDEA “is a law ensuring services to children with disabilities throughout the nation.” The law “governs how states and public agencies provide early intervention, special education and related services.” Laws such as the IDEA are redistributive in that they take money from some for the benefit of others. Such laws address the concerns raised in the post from which the question above was taken that all groups should receive equitable access to what is referred to as “society’s resources.”
Then there is the Head Start program, which, according to its website “is a federal program that promotes the school readiness of children ages birth to 5 from low-income families by enhancing their cognitive, social and emotional development.” Children in Head Start, along with their parents, are provided with resources to address their disadvantaged position. Included in Head Start is The Migrant and Seasonal Head Start program, which “provides child care and a comprehensive program of health, parent involvement, and social services for preschool children of low-income migrant and seasonal farm workers.”
Other redistributive programs for the financially disadvantaged are Medicaid, which provides health care dollars, food stamps (SNAP) provided through the WIC program of the Food and Nutrition Service of the Department of Agriculture, school lunch programs, Section 8 housing, and various income programs commonly called welfare. The most recent redistribution program in health care is the Affordable Care Act (“Obamacare”).
There is also the Community Reinvestment Act which is designed “to encourage commercial banks and savings associations to help meet the needs of borrowers in all segments of their communities, including low- and moderate-income neighborhoods [and] reduce discriminatory credit practices against low-income neighborhoods” (Wikipedia.com).
Housing is also dealt with through the federal government’s Department of Housing and Urban Development (HUD). According to its website, HUD’s mission is:
“to promote non-discrimination and ensure fair and equal housing opportunities for all. In an ongoing effort to provide services and activities on a nondiscriminatory manner and to affirmatively further fair housing, HUD is charged by law to implement and enforce a wide array of civil rights laws”
Some of the laws administered by HUD to deal with discrimination and promote the distribution of resources to disadvantaged groups are The Fair Housing Act, The Quality Housing and Work Responsibility Act, and the Housing and Community Development Act.
There are also the special privileges given to minority owned businesses under the Small Business Administration, including special training and preferences for receiving government contracts.
The list can go on as each of the states have their own programs dealing with discrimination and redistributing money and resources to disadvantaged groups. But the picture should be clear. There are dozens of laws involving several thousand pages of regulations dealing with the issue of discrimination and redistributing funds and resources to those deemed disadvantaged.
All of these programs are backed by the power of the federal government, which has contributed billions of dollars in (1) redistributed funds to the disadvantaged, in (2) paying for studies and experts to make these programs effective and in (3) paying for bureaucracies to manage these programs. Therefore, there is no need for the social justice requirement in the AOTA Code of Ethics to deal with the issue of discrimination or with having funds and other resources distributed to the disadvantaged. That is the Fallacy of Removing Non-Discrimination: it is the belief that the social justice requirement cannot be removed from the AOTA Code of Ethics because it is needed to address discrimination. Simply by knowing what laws exists and obeying them as required by the Principle of Procedural Justice allows a therapist to address the issues of discrimination and resource redistribution to the disadvantaged. And, by approaching the subject of discrimination through the Principles of Procedural Justice, Beneficence, Non-Maleficence and Fidelity, the Ethics Commission addresses discrimination and resource redistribution to the disadvantaged in a manner that maintains the Code’s integrity to its stated values of diversity and inclusion.
Some may say that despite all of these laws and programs problems still exist and the AOTA Ethics Commission should address them somehow in the Code of Ethics. True, the world is not exactly as we would like it to be. But if the laws and institutions created and managed by thousands of experts using up thousands of pages of regulations, and for which hundreds of millions of dollars have been spent over several decades in studies trying to find ways to solve these problems, the reader must stop and consider what expertise the AOTA Ethics Commission would have in dealing with these matters. Especially an Ethics Commission comprised mainly of part-timers whose main work lies in dealing with issues other than the ones being addressed by all of these laws.
What must be considered now is that if The Common Rule, The Revitalization Act, the Civil Rights Act, The Rehabilitation Act, Title IX of the Education Amendments, The Age Discrimination Act, The Americans with Disabilities Act, IDEA, Medicaid, the Affordable Care of Act, Food Stamps, Welfare, Section 8 Housing, The Community Reinvestment Act, Head Start, The Fair Housing Act, The Quality Housing and Work Responsibility Act, The Housing and Community Development Act, and the dozens of other anti-discrimination and redistribution laws have not been able to deal effectively with the problems of “systematic and longstanding discrimination” and “assuring that all groups receive equitable access to the rich resources available in society,” then a handful of sentences on the controversial subject of social justice in a small and obscure discipline’s Code of Ethics, which few members even read, will not effectively deal with it either. The only thing inclusion of social justice in the Code of Ethics accomplishes for certain is the violation of the Code’s stated commitment to diversity, as the concept of social justice is antithetical to the philosophical and political views of certain members.