The Routledge Handbook of the Ethics of Discrimination

Kasper Lippert-Rasmussen, Kasper Lippert-Rasmussen

• Publisher: Routledge
• Year: 2017
• ISBN:
  9781317400752
• Edition: 1
• Topic: Philosophy
• Subtopic: Philosophy History & Theory

While it has many connections to other topics in normative and applied ethics, discrimination is a central subject in philosophy in its own right. It plays a significant role in relation to many real-life complaints about unjust treatment or unjust inequalities, and it raises a number of questions in political and moral philosophy, and in legal theory. Some of these questions include: what distinguishes the concept of discrimination from the concept of differential treatment? What distinguishes direct from indirect discrimination? Is discrimination always morally wrong? What makes discrimination wrong? How should we eliminate the effects of discrimination? By covering a wide range of topics, and by doing so in a way that does not assume prior acquaintance, this handbook enables the reader to get to grips with the omnipresent issue.

The Routledge Handbook of the Ethics of Discrimination is an outstanding reference source to this exciting subject and the first collection of its kind. Comprising over thirty chapters by a team of international contributors the handbook is divided into six main parts:

• conceptual issues

• the wrongness of discrimination

• groups of 'discriminatees'

• sites of discrimination

• causes and means

• history of discrimination.

Essential reading for students and researchers in applied ethics and political philosophy the handbook will also be very useful for those in related fields, such as law, sociology and politics.

PART I

Conceptual issues

1
DIRECT DISCRIMINATION

Frej Klem Thomsen

ROSKILDE UNIVERSITY

Introduction

The concept of discrimination has been at the center of some of the most intense political and ethical debates of the late twentieth and early twenty-first centuries, from affirmative action and disability rights across police profiling and labor market inequality to multicultural accommodation and the limits of hate speech. The most paradigmatic and uncontroversial cases tend to be those of so-called direct discrimination. Few dispute that South Africa’s 1948 to 1994 Apartheid regime constituted discrimination against Black South Africans, or that the disenfranchisement of female Swiss citizens before 1971 constituted discrimination against women. But even for direct discrimination there are unclear and controversial cases aplenty. Does a religious organization discriminate if it insists that its ministers and clerics must publicly profess belief in its religious creed, for example? Or does an underfunded hospital that chooses to prioritize scarce resources by preserving its maternity ward rather than its Alzheimer’s clinic discriminate against the elderly, who are overwhelmingly more likely to require the second type of treatment than the first? What about a movie director who does not give consideration to a talented Black female actor when casting the lead role of a historical drama about Napoleon Bonaparte? Even though these examples are in many respects similar to paradigmatic cases of discrimination, most people will likely be unsure or skeptical that they themselves exemplify discrimination.

What makes matters worse is that it can be difficult to tell what the relevant difference is between cases that we intuitively want to label discrimination and those we do not. Consider the following trio of cases: first Abe, who has a strong preference for employees of his own gender, race, and ethnicity. As a result, he refuses to hire women and persons of other races and ethnicities. This, I take it, is an uncontroversial example of discrimination. Next consider Abe’s sister Bea, who has strong sexual and romantic preferences for persons of her own race and ethnicity. As a result, she refuses to date persons of other races and ethnicities. I suspect that intuitions may differ and will in any case be less certain than above, but that some people might be willing to say, albeit probably with less confidence than in the case of Abe, that in so doing Bea discriminates against persons of those races and ethnicities (see Chapter 23). Finally, consider Bea’s girlfriend Cynthia, who has a strong sexual and romantic preference for women: that is, Cynthia is a cis-gender homosexual woman. Few of us would presumably want to say that Cynthia discriminates against men in her choice of romantic partners. At the very least, we do not ordinarily refer to the way that the vast majority of people employ gender preferences in their choice of romantic partners as discrimination.

What are we to say about these cases? The shift from the public context of labor market hiring practices to the personal and private choice of romantic partners may account for some of the shift in our intuitions between the first two cases. But as the contrast with the third case illustrates, at least some concern may remain. Nor can the difference between the second and third cases be explained by the shift in the target of the preferences. At least, the first case would appear to be equally discriminatory when it targets gender, and when it targets race and ethnicity.

Thinking about what discrimination really means will ideally help us settle such issues, by giving us principled and carefully thought through grounds for drawing the line between cases of discrimination and non-discrimination, where we eventually draw it, as well as enabling us to better understand what it is that the cases we label discrimination have in common with each other, and the ways in which they differ significantly from cases of non-discrimination.

In slightly more technical terms, there are benefits both to a lexical definition, which aims to clarify and spell out our inherent concept of discrimination as employed in linguistic practices by competent speakers, and to an explicative definition, which aims to produce a definition that will not merely reflect but enhance our understanding of what is at stake. The discussion in the following attempts to balance the considerations that speak in favor of each of these types of definition, that is, to retain enough of our inherent concept for it to be acceptable as more or less what we mean when we speak of discrimination, while noting where we have reason to revise, e.g. because the concept would otherwise blur an important distinction.

Given how complex and multi-faceted discrimination is, and the potential benefits of exploring the concept, it is surprising how recent most conceptual analysis on the issue is. Admittedly there were notable sporadic efforts throughout the second half of the twentieth century, but it is really only over roughly the past decade that the task of defining discrimination has attracted sustained scholarly attention. However, these efforts have produced an abundance of new insights, and it is probably no exaggeration to say that we are now in a much better position to understand and confidently define discrimination than we were just a few years ago.

This article first presents a definition of what we can call the generic or basic sense of direct discrimination, as an agent treating two groups differently because of the property that defines one of the groups as a group, in a way that is worse for that group. It does so by exploring each of the conditions in this definition in turn, showing why they are necessary for something to constitute direct discrimination, as well as clarifying how precisely they should be understood. Next, it considers two different arguments to the effect that the three conditions are not jointly sufficient for something to be direct discrimination, in that an act must target one among a particular set of groups to constitute discrimination, and that an act must be in some sense morally wrong to constitute discrimination. While these objections are forceful it may be the case that they illustrate that we employ multiple, partly overlapping concepts of discrimination. This review of direct discrimination thus concludes that it may be more important to recognize this heterogeneity and clarify individual debates about discrimination by making explicit which sense is at stake, than it is to attempt to establish a dominant or unitary definition.

Note finally that the focus of this chapter is on the specific form of discrimination conventionally labeled direct. Although I briefly note places where other forms of discrimination may differ below, generally speaking the chapter does not deal with the complications that emerge in the context of variations such as indirect or structural discrimination (for the many important different forms of discrimination see the subsequent chapters of this handbook). Hence, unless otherwise noted, when this chapter mentions ‘discrimination’, it means simply direct discrimination.

Defining generic direct discrimination

Discrimination is a surprisingly slippery concept, and much of the attention it has received in recent years has focused on constructing a precise definition of the term. At least in part this may be because the concept appears to cover such a wide variety of disparate cases crossing traditional boundaries in applied ethics and political theory, from distributive justice, medical ethics, and criminal justice to multiculturalism, liberal rights, and feminism. Consider again that charges of discrimination may appear in the contexts of social or economic programs designed to help deprived minorities, in both efforts to accommodate and in the failure to accommodate persons with disabilities in public spaces, in how police and courts treat minorities (including by profiling and through disparities in sentencing), and in employer policies of hiring and promotion. Such charges may also be made against parenting that assigns different gender roles to children, and in defining the limits of acceptable public speech and symbolic actions, including insulting or criticizing vulnerable groups and holding political rallies in the neighborhoods where they live. At first glance it can be difficult to see what the whole spectrum of such cases could have in common. We can get a somewhat firmer grip on the concept, then, by taking a closer look at certain features that appear to be essential to discrimination.

Different than…

Probably the most obvious essential feature of paradigmatic cases of direct discrimination is that they involve differential treatment, which is to say that in cases of direct discrimination, an agent treats a person or group of persons in a way in which she does not treat other persons (cf. Chapter 2). Classic examples, such as a racist being rude or hostile towards members of a different race, or a sexist being paternalistic or demeaning towards members of the opposite sex, illustrate this fundamental feature. Conversely, it would be counterintuitive to say of the misanthrope or the nihilist that they discriminate, when they treat everyone with rudeness, hostility, or disdain (Lippert-Rasmussen 2006).

Distinguishing equal from differential treatment may not be as easy as is often assumed, but we will set that complication aside here. It is worth noting two points, however. First, that we should probably allow the difference in treatment to be counterfactual, that is, include as discrimination cases where the discriminator treats the discriminatee differently than she would have treated someone else, even if she does not in fact treat or in any way interact with such persons. We should be willing to say, e.g., that Robinson Crusoe discriminated against Friday by treating him differently than he would have treated a European person (assuming that we can characterize Crusoe’s treatment of Friday this way), had there been any European persons around to treat one way or the other. Second, that this may be a condition that distinguishes direct discrimination from indirect discrimination and structural discrimination. We might want to say, for example, that a university dean who made hiring decisions by subjecting both male and female applicants to an identical test of upper body strength was discriminating against women, even though men and women would in perhaps the most obvious sense be treated equally, by being subjected to the same test. If so, then arguably the discrimination is not direct precisely because it does not directly differentiate between men and women.

Worse for…

Secondly, in paradigmatic cases of discrimination, the treatment is disadvantageous to the members of the group treated differently. That is, the treatment is in some respect worse for the persons treated differently than the treatment is for persons in the non-discriminated group. The racist who treats Black persons with rudeness and hostility and White persons with civility, or the misogynist who belittles and patronizes female but not male colleagues, discriminates against these persons because they are treated in a way that others are not, and because the different treatment they are subjected to is worse (Lippert-Rasmussen 2007b).

A first clarification of this condition is that the badness of being discriminated against should probably be conceived of as tied to the specific respect in which the discriminatee is discriminated against. We would want to say, for instance, that a person who is fired for revealing her homosexuality at her workplace is discriminated against with respect to employment at that place, even if she is paradoxically made better off, all things considered, by being fired, because her being unemployed leads to her finding a superior position with a different employer. Note also that the evaluation here is value-based, not normative. To say that a person is discriminated against if she is treated morally worse, i.e., the treatment of her is less permissible or has stronger reasons against it than the treatment of others, would be to conflate the moral assessment of the action with its effect on the discriminatee. To emphasize these two points, we can say that discrimination against a person is worse for the discriminatee with respect to some particular good.

The next thing to note is that the way we have distinguished a form of discrimination as being against a group suggests that we should also recognize the possibility of discrimination in favor of a person or persons, which would involve treating them differently and better than the agent treats others, and discrimination between persons, which would involve the agent treating a person or persons differently than others, but neither better nor worse. A person who donates generously to charities working to help Christians in poor countries across the world but not to charities that aid atheists or persons of other religions might exemplify the former. Meanwhile, gender-separated changing facilities in a gym might exemplify the latter.

A potential objection at this point might note that some of the most reprehensible forms of historical discrimination against a group have labeled themselves as discrimination between groups rather than against one group. While this is undoubtedly true, we should bear in mind that cases of discrimination that appear superficially to be neither better nor worse for either party, and therefore to constitute discrimination between the parties, may on more careful consideration constitute discrimination against one group, as in the notorious case of “separate but equal” discrimination between US Blacks and Whites, which at once provided not equal but inferior conditions to US Blacks, and stigmatized them by suggesting that there were reasons to keep them separate from Whites. The existence of such cases of veiled discrimination against does not, therefore, rule out the possibility of actual cases of discrimination between groups that disadvantage neither. Similarly, even if it is true that gender-separated changing facilities discriminate between cis-gender men and women, this does not preclude that this way of organizing the facilities simultaneously discriminates against other groups, e.g., by disadvantaging transgender persons.

A second and important clarification is the baseline issue, which consists in determining what it means for treatment to be worse for the discriminatee. We fudged this issue in the above by saying merely that the treatment was worse than the treatment was for the non-discriminated group, but for a clear understanding of the concept of discrimination we require a more precise account. That is, what is the baseline against which we measure whether treatment is good/better or bad/worse? (Lippert-Rasmussen 2007a; Chapter 12).

A clear, simple, and mistaken baseline is the interpersonal comparison of outcomes, that is, how well off the different treatments leave discriminatees and non-discriminatees relative to one another with respect to the good in question. This view is mistaken because it entails that treatment is worse for a person if she ends up worse off than others, no matter what her position was prior to treatment, and whether and to what degree her position was improved by treatment. This would require us to say counterintuitively, e.g., that we treat cancer patients worse than others by giving them chemotherapy (unless, implausibly, the therapy can make the patient as well off with respect to health as people without cancer).

We can solve the problem above by looking not at where treatment leaves the discriminatee, but at how it affects her. However, a strictly intrapersonal baseline runs against the notion that discrimination is concerned with comparing discriminatees with non...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Table of Contents
• List of contributors
• Acknowledgements
• The Philosophy of Discrimination
• Part I Conceptual issues
• Part II The wrongness of discrimination
• Part III Groups of discriminatees
• Part IV Sites of discrimination
• Part V Causes and means
• Part VI History
• Index