Professional Documents
Culture Documents
DISCRIMINATION AND
NON-DISCRIMINATION
Iain Brassington
CSEP/ iSEI/ School of Law
iain.brassington@manchester.ac.uk
19.iii 23.iv.15
A Starting Point
Lets take as a starting point that
discrimination is wrong.
That is, treating people differently because of
their sex/ ethnicity/ sexual orientation &c is not
morally defensible.
Discrimination
However, it may be easy enough to pick
holes in this basic account.
Go to any public building: there will be places
where men cant go, and places where
women cant go.
Is this discriminatory?
In one sense, perhaps.
But not in another sense. It would seem strange to
say that there is anything wrong with such a policy.
Discrimination (2)
So maybe we need to refine our definition
a little.
Maybe we could distinguish between just and
unjust discrimination.
Discrimination (3)
On this understanding, sex-segregated
changing rooms may be justified.
Race-segregated changing rooms wouldnt
be.
Neither would sex-segregated equipment in
the gym.
Discrimination (4)
Take it as read that there is a moral
obligation not to discriminate, then.
Back to the question: does it follow that the
law ought to enforce non-discrimination after
all?
It might have a reason to do so, but it might
have a reason not to, too.
There might be concerns about liberty: the
law also has a reason to protect that.
Millian concerns
Discrimination (5)
Imagine that I own a fish-and-chip shop.
Imagine also that I happen to be racist.
I make it known that I will not serve or employ
members of some particular ethnic group.
Should a member of that group attempt to buy
food from me, I (politely) refuse, and ask them
to leave.
Analogies
Would there be an
analogy in this reallife case?
Sincere belief on the
part of the B&B
owners
No right to access
B&Bs
No harm done
Private property
etc, etc
Legal Intervention
The fact that the law might intervene in
cases like this isnt going to tell us that the
law ought to intervene.
So weve still got that question to answer.
Positive Discrimination
What, then, are we to say about positive
discrimination?
These are policies that, in the context of a
given decision, engineer advantage to Smith
over Jones.
This may be because Smith is a member of
some historically marginalised group.
Still: is this unjust? (Jones might think so!)
The Puzzle
So heres a question.
Granted a supposition that a just law
would be colour and sex blind (in most
cases), is it ever compatible with justice
for certain people to benefit from unequal
treatment?
If so, under what circumstances?
Tokenism
Another worry: might laws designed to
promote members of some disadvantaged
group lead to tokenism?
Might we end up staffing boardrooms with
women/ ethnic minority candidates because
theyre women or members of ethnic
minorities, rather than because theyre any
good?
Tokenism (2)
Indeed, this might undermine the
desirable end were trying to achieve, no?
For example, it might create resentment.
And a person who is wholly a token might
make the world less good than it could be.
Would you want to be operated on by a
tokenistically-chosen surgeon, or the best
surgeon?
Tokenism (3)
This is possible, but not a certainty.
Take the low number of women represented
in boardrooms or the judiciary, for example.
It is possible that there simply arent any
suitably able women out there
but it hardly seems likely.
Tokenism (4)
If the reason why members of group x do
not feature in profession y is partially
attributable to discriminatory traditions,
then members of x may suffer an injustice.
Thus even if (mirabile dictu) there are simply
very few women able of presiding over the
Supreme Court at the moment
we might still have a moral reason to invest
in programmes to correct this.
Tokens, or Figureheads?
Theres also a concern about the power of
stereotyping.
Theres a number of stereotypes that help
form our mental image of what a particular
role demands, and what a person filling that
role is like.
Often, these are quite rigid and value laden.
Chefs and doctors are male, cooks and nurses
female; chief executives are white, athletes
black
Tokens, or Figureheads?
The problem with this is that people may
begin to internalise those stereotypes, and
then to live up to them
Cordelia Fine gives examples of women being
turned away from STEM subjects because
theyre not feminine and so their being a
male domain becomes a self-fulfilling
prophecy.
Institutional -isms
This might be an important consideration
when it comes to problems of how to solve
institutional racism/ sexism/ classism etc.
Social or internalised pressures might lead
certain groups to be disadvantaged at time t;
The absence of members of those groups
might help reenforce those pressures at t+1,
thereby generating a circle.
PD might help break that.
PART 2
In Real Life
Suppose that members of some group G
are underrepresented in some forum.
Eg black South Africans in important public
roles post-Apartheid
BEM people or women in Parliament
Women in academia
Equal Protection
What does the equal protection clause
actually demand?
Equal treatment or treatment as an equal?
DeFunis did suffer from the Washington policy
more than those majority applicants who were
accepted. But that discrimination was not
arbitrary; it was a consequence of the
meritocratic standards he approves. The Equal
Protection Clause gives constitutional standing
to the right to be treated as an equal, but he
cannot find, in that right, any support for his
claim that the clause makes all racial
classifications illegal. (TRS, 9.2; modified)
Ideal Arguments
The UT cannot make an appeal to an ideal
argument to defend its policy of
discrimination.
It does not serve any plausible theory of
justice.
Utilitarian Arguments
Utilitarian arguments could shake out in a
number of ways.
For Dworkin, the most plausible route is to
talk in terms of preference satisfaction: a
policy is justified if it satisfies the collection of
(reasonably-inferred) preferences better than
would an alternative arrangement. (TRS, 9.4)
On the face of it, this satisfies treating people
as equals, since their preferences will all be
measured by the same standard.
External Preferences
Dworkin thinks that an appeal to external
preferences is fatal to the utilitarian claim.
If a utilitarian argument counts external preferences
along with personal preferences, then the egalitarian
character of that argument is corrupted, because the
chance that anyones preferences have to succeed
will then depend, not only on the demands that the
personal preferences of others make on scarce
resources, but on the respect and affection that they
have for his way of life (ibid)
Suggested Reading
Fine, C, Delusions of Gender (London: Icon, 2010)
Lippert-Rasmussen, K, Born Free and Equal? (Oxford: Oxford UP,
2014)
Kolers, A, The Priority of Solidarity to Justice Journal of Applied
Philosophy, 31(4), 2014
Dworkin, R, Taking Rights Seriously (London: Bloomsbury, 1997)
Young, IM, Justice and the Politics of Difference (Princeton:
Princeton UP, 1990)
Useful chapters in part III of LaFollette, H (ed), The Oxford
Handbook of Practical Ethics (Oxford: Oxford UP, 2005); see also
45-47 of LaFollette (ed), Ethics in Practice: An Anthology
(Chichester: Wiley, 2014)