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What's so Bad about Discrimination?

Published online by Cambridge University Press:  17 February 2012

SHLOMI SEGALL
SHLOMI SEGALL*
Affiliation:
The Hebrew University of [email protected]
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Abstract

The article argues that discrimination is bad as such when and because it undermines equality of opportunity. It shows, first, that other accounts, such as those concerning intent, efficiency, false representation, prejudice, respect and desert cannot account for the badness of discrimination as such. The inequality of opportunity account, in contrast, captures everything that is bad about discrimination. The article then addresses some counter-examples of practices that are discriminatory without arguably entailing inequality of opportunity, where the notable case is that of segregation. It is further demonstrated that the ‘equality of opportunity’ account successfully handles some of the tricky aspects associated with discrimination, such as those concerning the confinement of discrimination to salient groups, ‘buying off’ discriminatees by means of financial compensation, ‘discrimination’ in the selection of life partners, and the duties of employers.

Type
Research Article
Information
Utilitas , Volume 24 , Issue 1 , March 2012 , pp. 82 - 100
Copyright
Copyright © Cambridge University Press 2012

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References

1 See for example, Alexander, Larry, ‘What Makes Wrongful Discrimination Wrong?’, University of Pennsylvania Law Review 141 (1992), pp. 149–219CrossRefGoogle Scholar; Arneson, Richard J., ‘What is Wrongful Discrimination?’, San Diego Law Review 43 (2006), pp. 775–807Google Scholar; Hellman, Deborah, When is Discrimination Wrong? (Cambridge, MA, 2008)Google Scholar.

2 Lippert-Rasmussen, Kasper, ‘The Badness of Discrimination’, Ethical Theory and Moral Practice 9 (2006), pp. 167–85CrossRefGoogle Scholar.

3 I draw inspiration in this undertaking from Pitkin's, Hannah ‘Obligation and Consent’, The American Political Science Review 59 (1965), pp. 990–9CrossRefGoogle Scholar. Part of Pitkin's innovative approach to political obligation consisted in identifying different questions (four, as it turns out) that one might ask about political obligation.

4 Moreau, Sophia, ‘What is Discrimination?’, Philosophy and Public Affairs 38 (2010), pp. 143–79CrossRefGoogle Scholar; Hellman, When is Discrimination Wrong?; Cavanagh, Matt, Against Equality of Opportunity (Oxford, 2002)Google Scholar; Holmes, Elisa, ‘Anti-Discrimination Rights without Equality’, The Modern Law Review 68 (2005), pp. 175–94CrossRefGoogle Scholar; Alexander, ‘What Makes Wrongful Discrimination Wrong?’; Arneson, ‘What is Wrongful Discrimination?’.

5 Holmes, ‘Anti-Discrimination Rights without Equality’, p. 194.

6 Owen Fiss has put forward an account basing discrimination on inequality between groups. Fiss, Owen, ‘Groups and the Equal Protection Clause’, Philosophy and Public Affairs 5 (1976), pp. 107–77Google Scholar. My account, in contrast, is not limited to groups. Similarly, Sunstein, Cass, ‘The Anticaste Principle’, Michigan Law Review 92 (1994), pp. 2410–55CrossRefGoogle Scholar, has argued that anti-discrimination laws are better understood as an anti-caste requirement, where the concern is for the impact of policies on the overall status of members of vulnerable groups. Nevertheless his account is different from mine. Sunstein's principle is concerned with turning ‘highly visible differences’ into social disadvantage. My account is not limited to discrimination on the basis of those highly visible differences. In a more recent paper, Lippert-Rasmussen (‘The Badness of Discrimination’) has claimed that discrimination is bad when and because it disadvantages the discriminatee. Although he invokes ‘disadvantage’, Lippert-Rasmussen, in fact, focuses on what counts as harm for the purposes of discrimination. The account I attempt to provide here, in contrast, is more specifically focused on delimiting discrimination to undermining equality of opportunity. So while Lippert-Rasmussen focuses on ‘harm’, I focus on the narrower concept of ‘disadvantage’. This is important because, obviously, some harms do not constitute disadvantages: a progressive tax policy may harm the interests of the very rich without disadvantaging them (relative to others).

7 John Gardner's account, for example, addresses these two quite distinct sources of badness, namely the harm to the discriminator and the harm to the person being discriminated against. See Gardner, John, ‘Liberals and Unlawful Discrimination’, Oxford Journal of Legal Studies 9 (1989), pp. 1–22CrossRefGoogle Scholar.

8 For one such account see Arneson, ‘What is Wrongful Discrimination?’.

9 Lippert-Rasmussen, ‘The Badness of Discrimination’, p. 181.

10 An argument perhaps first made in Mill, John Stuart, On the Subjection of Women (New York, 1869)CrossRefGoogle Scholar.

11 This is Larry Alexander's account. Discriminatory practices are wrong, he says, ‘because they reflect incorrect moral judgments’ (‘What Makes Wrongful Discrimination Wrong?’, p. 161).

12 See Lippert-Rasmussen, Kasper, ‘Private Discrimination: A Prioritarian, Desert-Based Account’, San Diego Law Review 43 (2006), pp. 817–56Google Scholar, at 845.

13 Lippert-Rasmussen, ‘The Badness of Discrimination’, p. 181.

14 Matt Cavanagh sides with this account of the badness of discrimination, whereby he speaks of treating people ‘with unwarranted contempt’ as the factor underlying the badness of discrimination. See his Against Equality of Opportunity, p. 166.

15 This example is also, I think, fatal for an account of discrimination as denial of some ‘deliberative freedoms’, such as Moreau's. Her response, namely that the lack of opportunity undermines one's deliberative freedom whether or not one is aware of it (‘What is Discrimination?’, pp. 170–1), does not seem to me very persuasive.

16 Lippert-Rasmussen offers a series of additional counterexamples to show why discrimination need not involve a demeaning message. See his ‘Intentions and Discrimination in Hiring’, Journal of Moral Philosophy, forthcoming.

17 I note, of course, that desert and entitlement are distinct. X may be entitled to job Y due to a variety of reasons (need, legitimate expectations), only one of which can be desert. I am grateful to Brad Hooker for pointing out the importance of this distinction for my claim here.

18 See Rawls, John, A Theory of Justice (Oxford, 1971), p. 313Google Scholar.

19 One might say, in response, that the practice of open competition is a rule of thumb motivated by the ideal of rewarding the most suitable person for her talent. This would suggest that desert is still the source of badness in discrimination. But this would commit one to the idea that an open competition has no value independently of desert, which would imply that there would be nothing bad in headhunting in this case, and that seems wrong.

20 Mason, Andrew, Levelling the Playing Field: The Idea of Equal Opportunity and its Place in Egalitarian Thought (Oxford, 2006), pp. 20–1CrossRefGoogle Scholar.

21 Cavanagh, Against Equality of Opportunity, p. 137. This seems to be also Holmes's view.

22 In that respect, Sophia Moreau's account improves on Cavanagh. For she locates the badness of discrimination not in people succeeding or failing through others’ prejudice but only in the unfreedom of being at the mercy of someone else's prejudice. This is what she calls the deliberative freedom ‘to live insulated from the effects of normatively extraneous features of us, such as our skin colour or gender’. Moreau, ‘What is Discrimination?’ p. 147.

23 This, implicitly, is Gardner's view, for he sees a separate source of badness for direct discrimination (what he calls ‘harm’), and another for indirect discrimination (distributive justice or equality of opportunity). See his ‘Liberals and Unlawful Discrimination’.

24 Cited in Gardner, ‘Liberals and Unlawful Discrimination’, p. 14. Although, as Gardner comments, there is a proviso here that the corporation undertaking ‘private affirmative action’ must be atoning, as it were, for its own personal historical discrimination rather than for society's past wrongs. That should not, however, affect the point I am making here.

25 Hellman, When is Discrimination Wrong?, pp. 26–8.

26 Of course, he might do so as part of some educational experiment meant to convey the repugnance of segregation, in which case we would probably not think the overall action to be wrongful. (Notice that the specific action, taken out of context, would still be wrong, and it is the overall educational context which makes it permissible. If the specific, isolated action was not wrong to begin with then the educational experiment would not be effective.) But suppose the order has no educational purpose and thus no redeeming characteristic.

27 It might be useful to notice that the extent of offensiveness may depend on, among other things, the following two variables. First, the case would carry slightly less offence were it to be a request rather than an order. And second, it would be slightly less offensive if made by one of the teachers, rather than the headmaster. The latter corresponds with the intuition that discrimination is made worse the higher the selector is located in the hierarchy (a point I shall return to in the next section). In the particular example before us, we could think of variations on it which would not be offensive. For example, if the separation were along eye colour rather than skin colour then this would strike us as idiosyncratic but not offensive. Or, the headmaster could have ordered the seating to be based on alphabetic order of surnames, with those whose surname begins with the letters A–M to sit on his right and those whose name begins with the letters O–Z on his left. Such an order seems neither offensive nor especially idiosyncratic.

28 Hellman, When is Discrimination Wrong?, p. 26.

29 This is Hellman's position. When is Discrimination Wrong?, p. 27.

30 As Charles Black has written following the ruling of Brown v. Board of Education: ‘the social meaning of segregation is the putting of the Negro in a position of walled-off inferiority’. Black, Charles L., ‘The Lawfulness of the Segregation Decisions’, Yale Law Journal 69 (1960), pp. 421–30CrossRefGoogle Scholar, at 427 (cited in Hellman, When is Discrimination Wrong?, p. 54). Elizabeth Anderson develops a similar account, according to which the absence of integration is hindrance to justice and equality. See her The Imperative of Integration (Princeton, 2010).

31 Hellman, When is Discrimination Wrong?, p. 5. See also Lippert-Rasmussen, ‘The Badness of Discrimination’, p. 180.

32 The term ‘bona fide’ seems to put the emphasis on the selector's intentions, whereas the condition could (and should be in my opinion) be independent of such intentions.

33 Holmes, ‘Anti-Discrimination Rights without Equality’, p. 186.

34 Which is, incidentally, precisely what the Supreme Court reasoned in allowing the mayor's racist decision to stand. Justice Black wrote: ‘Nothing in the history or language of the Fourteenth Amendment nor in any of our prior cases persuades us that the closing of the Jackson swimming pools to all its citizens constitutes a denial of the ‘equal protection of the laws’’. Cited in Cake, Helen M., ‘Palmer v. Thompson: Everybody Out of the Pool!’, Hastings Law Journal 23 (1971), pp. 889–912Google Scholar, at 889.

35 Cavanagh, Against Equality of Opportunity, pp. 135–6.

36 See also Broome, John, ‘Selecting People Randomly’, Ethics 95 (1984), pp. 38–55CrossRefGoogle ScholarPubMed, at 55.

37 See Lippert-Rasmussen, ‘Intentions and Discrimination in Hiring’, p. 14. Or consider a slightly different example, in which a multiracial committee selects applicants, whereby in each case an applicant from one racial group is being rejected because of a racist vote by one of the committee members. Overall, no one is being disadvantaged, because of her race, compared to others. See Lippert-Rasmussen, ‘The Badness of Discrimination’, p. 173.

38 Moreau, ‘What is Discrimination?’, p. 172, gives an example of a community that has an equal number of restaurants, each discriminating against a different clientele (Jewish, Muslim, etc.), and says that even though there is no inequality, there is still discrimination here.

39 See Arneson's difficulty with responding to this challenge, in ‘What is Wrongful Discrimination?’ pp. 793–4.

40 See Miller, David, Principles of Social Justice (Harvard, 1999)Google Scholar, ch. 8.

41 See also Lippert-Rasmussen on this (‘The Badness of Discrimination’, p. 177).

42 For the former see Lippert-Rasmussen, ‘The Badness of Discrimination’, p. 168. For the latter, see Hellman, When is Discrimination Wrong?, pp. 21–2. Cf. Arneson, ‘What is Wrongful Discrimination?’, p. 794. Arneson resists placing any moral importance on historically disadvantaged groups. But consequently, he is forced to maintain that if a procedure is neutral then the fact that it yields a disparate impact for black children is of as much consequence as if ‘the affected children were green in colour’. I find this implausible.

43 Cavanagh raises an objection to that effect: Against Equality of Opportunity, p. 154.

44 See also Lippert-Rasmussen, ‘Private Discrimination’, p. 834.

45 It might also be useful to note that our sense of counter-intuition in such cases might be motivated by some practical benefits of restricting anti-discrimination legislation to ‘in-kind’ measures. As Mark Kelman, ‘Antidiscrimination and Groups’, Stanford Law Review 53 (2001), pp. 833–96, at 884, rightly observes, compensating an individual for discrimination on the basis of her skin colour does little to prevent such future discrimination against other people of colour. But this is a practical consideration rather than one of justice.

46 See Lippert-Rasmussen, ‘Private Discrimination’, pp. 851ff., on a similar point.

47 Cavanagh, Against Equality of Opportunity, p. 201; Lippert-Rasmussen, ‘Intentions and Discrimination in Hiring’, p. 22.

48 See Hellman on this requirement of asymmetry of power for discrimination to take place. When is Discrimination Wrong?, p. 37.

49 Gardner also raises this doubt. See his ‘Liberals and Unlawful Discrimination’, p. 10.

50 I am grateful to Gustaf Arrhenius, Nir Eyal, Axel Gosseries, Brad Hooker, Kasper Lippert-Rasmussen and Iddo Porat for helpful comments and suggestions.