From Randy Cohen, “The Ethicist” of the New York Times’ Magazine, comes an ethics question that I would think has an obvious answer. The fact that it isn’t obvious to many people is worrisome.

It was obvious to Cohen. A lawyer evaluating resumes for applicants to join his firm asked if he could ethically reject a qualified applicant solely because the applicant was a member of the Federalist Society, an organization much in favor during the Bush Administration, dedicated to studying and promoting conservative ideology. The potential associate’s duties had nothing to do with politics. Cohen, a good liberal if there never was one, was emphatic about whether the reviewing partner could ding the applicant for liking Justice Scalia and agreeing with George Will:

“You may not. If candidates can do the job, bathe regularly and work well with others, you should hire them…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.”

The reviewer rejected the applicant anyway.

This is nothing more or less than bigotry. The idea that an individual’s political (religious, cultural…) views define his or her character is certainly popular these days, just as it is socially corrosive and intellectually untenable. Both Right and Left increasingly characterize their political adversaries as not merely misguided or mistaken, but stupid and evil. Senate Majority Leader Harry Reid recently equated GOP opposition to the eminently opposable, swollen, unreadable 2000 page Senate health care reform bill to support for slavery, while over on talk radio, an apoplectic Marc Levin screams that the Democrats are sinister enemies of freedom. When asserting a set of political views well within a reasonable range of civilized respectability makes a job applicant persona non grata in a non-political organization,  principles of bias and prejudice are seeping into everyday judgment.

Yet when the American Bar Association Journal posted about Cohen’s answer, an amazing number of lawyers sided with the politically biased reviewer. Arguments included:

• The applicant obviously included the Federalist Society Membership in the hope that it would endear him to a reviewer, so he can hardly call “foul” if it does the opposite. Nonsense. The Federalist Society isn’t the American Nazi Party; it is a distinguished organization with distinguished members and legitimate activities. No applicant should be ashamed or afraid to put it on a resume, any more than “admitting” to membership in the ACLU, NOW, NARAL or the NRA. A resume typically includes organization memberships. If an applicant includes that she is a member of the Georgia Bar, that doesn’t mean she has to regard it as fair if someone rejects her because they think Southern states are racist.

• The reviewer could reasonably use the information to conclude that the lawyer “wouldn’t fit in” because of his political leanings. Legal, but unethical. This logic is indistinguishable from deciding that an applicant wouldn’t fit in because he or she is Jewish or Asian, or has a military record. If the firm is intolerant and bigoted, it has to fix its culture, not sustain it.

• Ideological leanings aren’t legally protected, so it’s not unethical to discriminate because of them. No, it may be legal to discriminate because of them, but it’s still unfair and wrong (and in the District of Columbia, also illegal.)

What Cohen neglected to say, and should have, is that the reviewer had a clear conflict of interest. Lawyers are supposed to be sensitive to conflicts and avoid them. Once he realized that his irrational bias against conservatives made it impossible to fairly evaluate the resume of a qualified lawyer, he had a duty to his firm and the applicant to withdraw from the process and let someone with an open mind make the decision fairly. There are some organizations, I confess, that I hold in such low esteem that I think my judgment regarding a member might be unjustly and unfairly tainted.

In such a situation, my ethical course would be to let someone objective review the resumes, not to write to an advice column.