Tuesday, March 23, 2010

Logic Lesson Of The Day: The False Analogy

Every so often, when you argue with people, you run across one or another logical fallacy. Some logical fallacies, such as the ad hominem attack, are fairly easy to spot. Others may be more difficult.

One type of fallacy that you see often is the false analogy (or weak analogy). This happens when a person tries to make his/her point by comparing one case to another where there is often an important difference in the two cases.

I ran across this today in a report on Matzav.com. A few months ago, a number of female employees filed suit against B&H photo, claiming discrimination because women were barred from certain sales jobs. The story was revived yesterday when three more female employees joined the suit.

I want to stress that I have no idea if the suit has merit or not. I don't work at B&H, nor do I visit there too often.

As you might expect, when a story such as this comes up, there are those who think that it's wrong that B&H can be sued for gender discrimination. They usually make a point about how it's a private business and that they should be able to hire/fire whomever they like.

One poster on Matzav, who goes by the screen name "hesh" made the following point (emphasis mine):

This lawsuit is outragous! What total nonsense! B&H photo is a private company. What if a man would try to get a job in a shaitel store, dress shop, etc… What about a lady teaching 9th grade gemorah class? Use a bissel sechial. This is total MESIRA!

Putting aside his initial outbursts, the point he's trying to make is this: Firms should be allowed to hire/fire whom they want. If the government interferes with that (via laws against discrimination) then they could force a sheitel store to hire a male employee which, in the frum world, would completely destroy the business (as the married women will not shop there).

In other words, Hesh is making an analogy between B&H and a sheitel store (and a dress shop and a boys' yeshiva).

However, the analogy isn't a good one. In fact, it's a pretty bad one. The reason why it's a bad analogy is because there is an important difference between the cases he brings and B&H.

Hesh is probably correct in his statement that forcing a sheitel shop to hire a man would be incorrect. As I pointed out earlier, it would ruin the business as women would not shop at the store anymore. The same can be said for a dress store. Likewise, in many segments of the frum community, the parents would pull their sons out of school if a woman taught gemara.

However, the same cannot be said about B&H. B&H's business will not be harmed by the presence of female salespeople. The vast majority of the people who shop at B&H care about the price, selection, warranty and the company's great reputation as a photographic equipment store. They don't care about the gender of the person behind the counter.

And that's all the difference. The stores in the examples that Hesh provides have a legitimate business need for a specific gender employee. B&H does not have a specific business need for male-only salespeople. And that's why the analogy fails for Hesh's argument.

The Wolf

47 comments:

Mike S. said...

It may or may not be true that there would be no business cost to having female employees. Either way, the antidiscrimination laws would be in force. That prejudice may be on the part of the customers doesn't excuse illegal employment discrimination. There are parts of the frum world, unfortunately, where having, say, a FFB, Black English teacher might cause some parents to reconsider sending their kids to the school, but that does not permit the school to refuse to hire one. I doubt the sheitl store would be able to withstand legal scrutiny for refusing to have male salespersons.

BrooklynWolf said...

Mike,

You might be right - I'm certainly not an employment lawyer - but I'd think that if you could prove a legitimate business need you might get away with it.

One area where I know it's done is in acting. You can't claim discrimination if you're a white male when the script calls for a black female.

The Wolf

RAM said...

If B&H's concept is that no large Jewish-owned store catering to the general public should have both men and women salespeople on the floor, that is remarkable and mind-boggling. Surely, the saleswomen could follow a modest dress code.

Garnel Ironheart said...

I don't think the analogy is perfect but it isn't without merit.
I don't know how touch civil liberty/human rights law is in the States but it is quite conceivable , up in Canada, for a woman to apply to teach at a boys' yeshivah and then lay a human rights complaint when she's refused. Assuming she has the qualifications (for example, they were looking for a math teacher and she happens to be one), such a complaint would be taken very seriously and it is possible that the yeshivah would be forced to hire her. Something like this did happen out west in Alberta a few years ago where a fundamentalist Chrisian college was forced to hire an openly gay professor.
The difficulty with this situation is that there is a balance between equality of opportunity and freedom of association. If A is a hateful person who doesn't like blacks, how does forcing him to associate with them help things? Yes, we've all seen the after school TV shows where the hateful person suddenly realizes he's been wrong but in real life such demands only breed resentment. A private business is a private business and it should have a final say on who it can hire. In a free market society, those businesses that select on quality, not ethnicity/gender will be the ones to survive.

Garnel Ironheart said...

> One area where I know it's done is in acting. You can't claim discrimination if you're a white male when the script calls for a black female.


Although a few years ago this one theatre in Toronto did a production of Hamlet with a black woman in the lead role! And when she was asked: Well, if there was a play about Martin Luther King Jr, would you be okay with a white woman in the role, she naturally said "Well, that's different".

BrooklynWolf said...

Theater generally does more alternative-casting than television or movies. But because they do so sometimes doesn't mean that they are bound by it.

In the end, if Dennis Franz showed up to audition for the role of Charity Hope Valentine, the producers would be on more than solid grounds to turn him away based on age and gender.


The Wolf

Shira Salamone said...
This comment has been removed by the author.
Shira Salamone said...

I just love the automatic assumption that ". . . a lady teaching 9th grade gemorah class" is teaching in a *boys'* yeshivah, quoth she sarcastically.

:(

BrooklynWolf said...

automatic assumption

Given Hesh's comment, I don't think it's an assumption. I'm pretty sure that that's what he meant.

The Wolf

lewyn said...

Here is a scholarly article discussing the "bona fide occupational qualification" defense to gender discrimination.

http://www.thefreelibrary.com/The+BFOQ+defense:+Title+VII's+concession+to+gender+discrimination.-a0194701439

lewyn said...

Oops- I didn't realize such a long link wouldn't work. Just google

The BFOQ defense: Title VII's concession to gender discrimination

and you should find it.

dvorak613 said...

The analogy is faulty, but I see a bigger issue here. I'd like to know what Hesh would say about a "private company" that decides that they don't want to hire people who are only willing to work 6 days a week...

Mike S. said...

Yes, but to be a bona fide occupational requirement, something that discriminates must be needed for more than catering to the prejudice of the clientele. It has to relate to the duties to be performed. Thus, if the sheitl store needed a model for the wares, they could probably demand a woman. And if they were selling clothes and needed a live model they could specify the gender. They certainly could not if they needed a plumber or bookkeeper. For a salesperson you would probably have to show that you really needed a salesperson who had personal experience using the (gender specific) product to survive a challenge. And by the way, when it comes to race, the bona fide qualification is not available. A yeshiva can demand a Jewish rebbe for gemara, but they can't demand he be white or of Ashkenazi descent. At least not in the US. Although they can demand he speak Yiddish if that is the language of instruction.

RAM said...

How does B&H dare to expose their salesmen to female customers off the NYC streets?

Shira Salamone said...

RAM, good question. :)

"I just love the automatic assumption that ". . . a lady teaching 9th grade gemorah class" is teaching in a *boys'* yeshivah, quoth she sarcastically."

"Given Hesh's comment, I don't think it's an assumption. I'm pretty sure that that's what he meant.

The Wolf"

I have no doubt that that's what he meant, but that's exactly why his statement upsets me: I assume that, in his community, 9th-grade *girls* never study Gemara.

xxvii said...

there are those who think that it's wrong that B&H can be sued for gender discrimination. They usually make a point about how it's a private business and that they should be able to hire/fire whomever they like.

Those same people would never apply that same "it's a private business free to hire as it pleases" position if the company was refusing to hire Jews.

zach said...

...this one theatre in Toronto did a production of Hamlet with a black woman in the lead role! And when she was asked: Well, if there was a play about Martin Luther King Jr, would you be okay with a white woman in the role, she naturally said "Well, that's different".

Of COURSE it's different. There is nothing about Hamlet that demands a white or black actor. The whole basis of the MLK story, however, relates to his struggle for civil rights for blacks.

You really don't see this??

Anonymous said...

There's nothing about a play whose lead character is a 10th century (I think) Danish prince that demands a white male actor?!?

In fact, the article pointed that out to this young actress and she said that the whole point of acting was that anyone could perform any role since it was a play, not reality.

Aaron S. said...

However, the analogy isn't a good one. In fact, it's a pretty bad one. The reason why it's a bad analogy is because there is an important difference between the cases he brings and B&H.

Wolf, you are wrong and Hesh is correct in this case.

The LAW provides no difference for a shaitel store and an electronics store. If you can legally force B&H to hire female saleswomen you can legally force a shaitel store to hire male salesmen.

It's a matter of law. Hesh is correct.

Aaron S. said...

The law in the U.S. specifically exempts Hollywood from the anti-discrimination laws.

And the law allows a business that needs someone to work on Saturdays from refusing to hire someone who can't for religious reasons.

BrooklynWolf said...

Aaron,

Your point about acting is correct. From the link above:

In circumstances where gender-based hiring is necessary for the purpose of authenticity or genuineness, the courts and the EEOC expressly permit sex-based BFOQs. (97) For example, the EEOC guidelines explicitly permit an employer to make a hiring decision based upon gender when selecting an actor or actress for the authenticity of the production

Likewise, an employer is allowed to discriminate if the employee will not be able to perform the basic functions of the job. For example, I would not be able to claim discrimination if I am not hired as a gourmet chef because I refuse to cook basar v'chalav on religious grounds.

I don't know that you are correct with regard to a sheitel store. To be fair, however, I don't know that you're incorrect either. Can you please provide the relevant ruling or case?

The Wolf

Miami Al said...

It seems like the sheitel store could hide under the privacy claims. Customer preferences are not permitted (the Hooters situation settled rather than risk a likely loss, as the court would rule that the primary business is selling food/beverages and not sex appeal, which is somewhat preposterous, Hooters primary sells sex appeal, the food/beverage is just what they charge for), but privacy, particularly of non-prisoners, is respected.

The customers for a sheitel store consider a man seeing their uncovered hair the equivalent of seeing them naked, so there is a privacy concern. I find it unlikely that the EEOC or Courts would want to rule on the legitimacy of a religious belief.

This isn't "the customers prefer women for stereotypical reasons," this is the business cannot operate in a reasonable manner with men present, as they could not help the customer with their sheitel.

Further, I presume that most sheitel stores have 4 or fewer employees, so anti-discrimination laws would not apply anyway. An adverse ruling would prevent a sheitel store from growing beyond 4 employees, but would not force them to hire men.

Accomplishing that might require moving ALL accounting to a third party accounting firm and hiring a janitorial service, and other ways to keep the other "jobs" off of payroll, but could no doubt be done for business reasons.

I find the analogy between B&H and a small sheitel store to miss a few major legal reasons.

Aaron S. said...

I don't know that you are correct with regard to a sheitel store. To be fair, however, I don't know that you're incorrect either. Can you please provide the relevant ruling or case?

What reason would you propose that the law, as written in the U.S. Code (as opposed to how you feel it should be viewed), would differentiate between a shaitel store and an electronic store? The law is generic and makes no such distinctions.

And forget just shaitel stores. Any frum woman clothing stores. The salesman or saleswoman doesn't see the person undressed. They do that in the privacy of the dressing room. And some of these stores easily have 5 or more employees. Should they too be required to hire (on an equal basis) male salesmen to sell women's clothing?

Or thing women's shoes; Manicures; etc.

Think secular law, not halacha.

Where do you draw the line?

Why should the line be drawn where you want, rather than where B&H thinks.

RAM said...

Aaron S.,

When a woman walks into a store like B&H to buy a camera or other equipment, which is more halachically desirable as you see it:

1. A salesman greets her and tries to sell equipment.

2. A saleswoman greets her and tries to sell equipment.

Aaron S. said...

RAM, Why bring halacha into this? The argument being made against B&H is based on secular law not halacha.

RAM said...

Because B&H's concerns appear to have been based on their halachic viewpoint alone. In a secular view, there is no gender-related issue of who is best suited to sell cameras, etc.

Aaron S. said...

RAM: It is neither your nor my business what B&H's halachic viewpoint is. That is between the proprietors of B&H and their religious authorities. (That being said, there is very good reason to believe their male/female employment policies are made with the input of their halachic advisors.)

The private lawsuit against B&H alleges their policy violates secular law. So that is the question at hand.

Anonymous said...

Taken from a newsvine post, b/c the term Ad hominem has become so overused in the J-blogosphere...

Actual instances of argumentum ad hominem are relatively rare. Ironically, the fallacy is most often committed by those who accuse their opponents of ad hominem, since they try to dismiss the opposition not by engaging with their arguments, but by claiming that they resort to personal attacks. Those who are quick to squeal "ad hominem" are often guilty of several other logical fallacies, including one of the worst of all: the fallacious belief that introducing an impressive-sounding Latin term somehow gives one the decisive edge in an argument."

Holy Hyrax said...

Personally, I am on the side of B&H here. In our own business, our boss will absolutely NOT hire a man to be the front desk receptionist. He only wants a woman, that he feels greets people with warmness etc etc. The point is, he has a specific vision of what he wants for the business that he has put so much energy in.

But there is another facet here that troubles me. It is the sense of entitlement that people that have that they actually WANT to sue. It's that they feeled owed by someone elses hard labor. Its its this same sort of entitlement that had a "plumpier" woman sue a dance instructor for not hiring her because she was fat. A photographer sued in Arizona for refusing to be hired for a gay reception due to it goign against her values/religion and recently a man that successfully won a lawsuit against eHarmony for not giving a 'gay' option on that site. Nevermind that fact, that eHarmony, or any other business might actually GET MORE business. They might be more successful, but its irrelevent (at least to me). The point is, a person should have a right to have a specific vision for his business. If someone does not like it, they can go someplace else.

Call it the "trickle-down-entitlment-theory"

Holy Hyrax said...

>Of COURSE it's different. There is nothing about Hamlet that demands a white or black actor

No, its not different. The simple fact that Hamlet was white should be enough for a director to say NO to whoever does not fit that description.

Anonymous said...

Holy Hyrax: While it is true that there are frivolous suits, the courts tend to be very good at weeding them out. The fact that there are some frivolous suits doesn't mean there are no legitimate suits. One of the great things about this country is that we have a great tradition of resolving things peacefully, rather than through riots and stone throwing. The courts are central to that function.

It is not an issue of entitlement. Great strides have been made (including many that have benefitted jews) via civil rights law suits. But then again, I'm sure you thought the Browns in Brown v. Board of Education had an improper sense of entitlement.

Anonymous said...

For those who think that because B&H is a private business they should be able to do whatever they want, would you also think that it is just fine for all of B&H's suppliers (Canon, Kodak, Nikon, etc.) to decide we aren't going to do business with B&H because they are a bunch of jews and we don't like doing business with jews and besides, our religion says we should favor our own.

Holy Hyrax said...

>For those who think that because B&H is a private business they should be able to do whatever they want, would you also think that it is just fine for all of B&H's suppliers (Canon, Kodak, Nikon, etc.) to decide we aren't going to do business with B&H because they are a bunch of jews and we don't like doing business with jews and besides, our religion says we should favor our own.

Fine??? No, I think its repulsive. But why would a Jew sue over this? These companies don't want to do business with you, so you going to force them?
Like I said, my company wont hire a man for front desk receptionist. Should they sue to get some money? Why? My boss does not want you.

Mike S. said...

Hyrax: Your position was a long standing one in American history, and was the subject of fierce controversy in the debates leading up to the passage of the Civil Rights Act of 1964. Barry Goldwater opposed the act precisely because he felt people had a right to run their business as they pleased. Ultimately, however, the fact that huge swaths of the economy were off limits to Blacks was too troublesome to allow the view to prevail. Likewise, when I was younger, help wanted ads were divided by gender. And essentially all the high paying jobs were reserved for men.

If all one had to deal with were an occasional Hasidic camera shop, I would be inclined to agree with you. However, when significant portions of the economy are closed off to people on the basis of race, nationality, religion or gender the society is manifestly unjust. That was the America I grew up in; I would not want to return to that society. Perhaps society has progressed to the point where, if we relaxed the laws, businesses that discriminated would be an insignificant fraction. But I am not really eager to try the experiment.

Holy Hyrax said...

>However, when significant portions of the economy are closed off to people on the basis of race, nationality, religion or gender the society is manifestly unjust.

Could be. I don't tend to look at it so black and white as that. It just might be unethical or wrong, depending on the circumstances. I think today, in response to the past, we have shifted to the other extreme. I don't particular think an individual has a right to be hired by someone that absolutely does not want that person. If so, someone could sue my boss a long time ago.

And I guess my bigger problem is how I see this attitude trickle down to other segments of society (i.e. my examples above)

mlevin said...

Mike S. - I have a problem with some of the civil rights decisions of the 1960s. As long as there is no law prohibiting someone from hiring a black/woman/gay or anything else, I don't see why there should be a law forcing someone to hire black/woman/gay or anything else.

It is simple economics. Back in Soviet Union there were laws against Jews, but Jews still managed to get ahead. Why? Because they tried hard. In United States today a black person does not need to try hard,he will still be accepted into a college and he will still get a good job just because of the color of his skin... or else he will sue. Same applies to women and other minorities. All in the name of diversity.

Anonymous said...

mlevin: your comments about Blacks, women and other minorities not needing to try hard and that they will be accepted into college and get a good job regardless is hogwash. Any affirmative action that once existed is largely gone. Blacks, women and hispanics and most other minorities still have to work harder to prove themselves. Most victims of discrimination don't sue and discrimination suits are among the hardest to win.

Holy Hyrax said...

>Any affirmative action that once existed is largely gone.

That isn't exactly a consolation.

Holy Hyrax said...

>Most victims of discrimination don't sue and discrimination suits are among the hardest to win.

No, they just settle mostly out of court.

Dave said...

Exactly. I too am tired of the nonsense of "minorities" (but only certain "protected minorities" -- Jews need not apply) getting preferential treatment in governmental hiring, academia, and even bullying (via courts and media) private business to provide such preferential treatment today.

Today the white man and the Jew is last on the line and are discriminated against -- with the full backing of the corrupt court systems.

LW2 said...

The whole Sheitel store question is irrelevant. Salespeople are only as useful as the revenue they produce. Therefore, IF there was an adverse ruling against sheitel stores (and as an aside, I strongly believe that the law would NOT require them to hire men), they could easily comply and stay in business, because all customers would ask for a saleswoman. Then, the salesmen could be fired for being useless.

Same goes for boutiques, and all the other logical examples. This does not apply to B&H.

P.S. I've seen Hamlet played by a black actor, but I've never seen Othello played by a white actor. This is because Othello's skin color is essential to the story line. I imagine the same is true for MLK.

LW2 said...

P.P.S. However, I see no reason why a white actor wearing sufficient black makeup could be discriminated against.

Holy Hyrax said...

LW2

Your argument is one of outcome. Will the store loose money or not? Will customers come back or not? I am really looking at this in terms of Liberty. Should you have a right to hire whoever you want....even IF it might mean financial collapse or success.

Lad said...

So if Jews will shop more at groceries with Jewish employees that would be sufficient to hire only Jews?

LW2 said...

Hyrax,

Sorry if my argument wasn't clear enough. Take a hair salon as an example - it's not unusual to find male hair stylists. Imagine that a frum woman comes in and a male stylist waves her over - she'd politely refuse, and wait for a female stylist to be available.

I think of a sheitel store as a hair salon that exclusively serves frum women. The sheitel store can hire male stylists, but all the customers will politely refuse them, allowing the employer to legally terminate them. We know this at the time of hire, which is why male sheitel machers need not apply. However, if the courts demanded it (foolishly I might add), the sheitel store could hire and fire and be in full compliance.

LW2 said...

Hyrax,

I didn't reply to your question. I happen to disagree with you, as does the law. This country allows you to put all your energy into building your own business IF you comply with all its laws. Those laws include many things, such as filing and paying taxes, as well as providing equal opportunity employment.

So, despite the fact that your boss has a certain vision for the business he put so much energy into - insofar as that vision conflicts with the law he does not have the right to act on it.

If what you are asking is SHOULD the law be that way, I remove myself from the discussion.

Holy Hyrax said...

oh, im aware of the law, Its the SHOULD that I am after. I think the law has gone to the extreme