Balkinization: When is Discrimination Wrong?

When is Discrimination Wrong?

Guest Blogger

Deborah Hellman

Laws, policies and actions by individuals routinely draw distinctions among people on the basis of all sorts of traits. This distinction drawing is sometimes a grave moral wrong (state segregation of African-Americans), sometimes clearly permissible (requiring that children must be 5 years old by a certain date to start kindergarten) and sometimes controversial – affirmative action, genetic discrimination in insurance, mandatory retirement ages, single-sex public education. The list goes on and on. How can we determine which is which? When is discrimination wrong? The term “discrimination” itself suggests wrongfulness but of course sometimes discrimination is a good thing – discrimination between the sound and unsound investment, the high and low quality wine, etc. Even discriminating between people is important. Think of insurance: Insurance is the very business of discrimination. The insurer distinguishes between potential insurance purchasers and charges each a rate that reflects the likelihood that each will make a claim against the insurer during the policy period. Schools and businesses discriminate as well, in good ways as well as bad. The university admissions office uses all sorts of criteria to determine which applicants to admit. In other words, the university discriminates between applicants on the basis of grades, test scores, involvement in extra-curricular activities and much else. Discrimination is a fact of life – necessary to the attainment of all sorts of ends.

Yet discrimination is also sometimes deeply morally wrong. What makes it wrong? In six posts on this blog, I will sketch my answer to this question. A more detailed account can be found in my book When is Discrimination Wrong? (just released from Harvard University Press). The first three (including this one) will describe my own view and the second three will argue against three prominent alternative accounts.

To begin to answer the question of when discrimination is wrong, it is helpful to reflect on why differentiating among people may be troubling. It is not, as the old shibboleth would have it, because “like cases should be treated alike.” Putting aside the complex question of who is relevantly like whom, even so, we need not always treat likes alike. I might well acknowledge that other children are relevantly like mine yet still maintain that I may distinguish between other children and my own in all sorts of contexts. Yet distinguishing between people on the basis of that trait (being my child) as well as many, many others is morally wrong in many contexts. The reasons this is so is because people are equally important and this fact limits the way that we may treat others. Each person is of equal worth. We matter equally. This is a bedrock moral principle that underlies conflicting philosophical and other moral views. Differentiating among people is potentially morally problematic then because of the important worry that in treating people differently we may fail to treat them as moral equals.

Thus the question that must guide our inquiry is when does differentiation fail to treat the people affected as people of equal worth? The answer, in my view, is this: discrimination is wrong when it is demeaning and not wrong when it is not demeaning. This clean and simple formulation clearly raises many questions and likely engenders much disagreement. In the next two posts, I will explore some of the questions: looking at what demeaning is and what expected disagreement about which practices demean augurs for this account.

But why think demeaning is the key to what makes discrimination wrong? To demean someone is to treat that person as a person of lesser worth. Demeaning has both an expressive dimension and a power dimension. To demean is both to express that the other is less worthy and to do so in a way that has the ability to put the other down. Demeaning discrimination is thus differentiation that fails to treat those affected as moral equals. Demeaning is the key to what makes discrimination wrong because it responds to the moral concern that animates worries about differentiation in the first place. Note that discrimination is wrong when it demeans and not wrong when it does not demean whether or not the actor intends to demean or not. In the last post of this series, I will argue specifically against the view that an actor’s intention is morally relevant to whether differentiation constitutes wrongful discrimination. Note also that discrimination is wrong when it demeans whether or not the person affected feels demeaned or stigmatized. In other words, this account of wrongful discrimination is grounded in the wrong that discrimination sometimes is rather than the harm that it may cause.

A timely example will illustrate this view. This past Monday (June 16th), California began issuing marriage licenses to same-sex couples in response to a California Supreme court case which held that laws restricting marriage to opposite-sex couples violate California’s state constitution. The California law struck down in In re Marriage Cases clearly distinguished among people – here on the grounds of sex or sexual orientation. In that sense, it was clearly discrimination, if we simply use the term in the descriptive rather than the normative sense. But then so are single sex education, single sex bathrooms and much else. The relevant question is whether distinguishing on grounds of sex in the marriage context is wrongful discrimination. Many states have established “civil unions” as an alternative to marriage – a status that grants same-sex couples the same legal rights and obligations as married couples. But this alternative has seemed inadequate to same sex couples for obvious reasons. Civil unions seem like a poor relation to marriage, a second-class status for second class citizens. Just as schools for African-Americans in the pre-Brown era were not equal to schools for white children, even where they had equal financial and other resources, so too civil unions are inferior to marriage. Brown famously said that separate is inherently unequal. But that is false. Segregation (meaning separating people on the basis of some trait) isn’t inherently unequal. Whether a particular sort of segregation is unequal depends on contingent historical facts. Sometimes singles sex education is morally permissible. Age segregation in public schools surely is. Classes are often tracked by ability but usually not in a way that violates the equal moral worth of all people. What Brown should have said was this: given the history of separating people on the basis of race in our culture, racial segregation of public schools expresses the inferiority of African-American school children in a manner that has the power or capacity to cause a significant harm. In short, it demeans.

Using this example, what can we say of laws that restrict marriage to opposite sex couples while offering so-called “civil unions” to others as an alternative? It isn’t that there is something inherently wrong with civil unions. Rather, given our culture and history, restricting marriage to opposite-sex couples expresses the inequality of same sex couples in a powerful manner and as such demeans them. For this reason, marriage laws that distinguish between same sex and opposite sex couples demean same sex couples and therefore wrongfully discriminate.
In the history of writing about the meaning of the Equal Protection Clause, there has been a recurring debate about whether the clause protects individuals or groups. On the side of the individual conception is the intuition that wrongful discrimination is a wrong done to an individual. On the side of the group-based understanding, is the insight that the history of the mistreatment of groups is relevant to the question of whether a policy constitutes wrongful discrimination. After all, separating school children by the letter that begins their last names seems quite different than separating school children by race. The account of wrongful discrimination I propose here has the virtue of accommodating both insights. Wrongful discrimination is a wrong done to an individual. A policy that separates people in a manner than demeans an individual thereby wrongfully discriminates against her. But group status matters because whether a particular policy is demeaning is powerfully affected by the meaning of drawing a distinction on the basis of the particular trait, in the particular context, in our culture, at this time. Alphabetic segregation of school children is not demeaning, racial segregation might well be (we would need to know more about the context). Limiting marriage (as offered by the state) to opposite sex couples is demeaning. Limiting marriage to persons over 18 is not.

Posted 10:30 AM by Guest Blogger [link]

Comments:

Discrimination is wrong when the trait you're discriminating on the basis of isn't relevant. Sometimes discrimination can be "demeaning" and right, because the reality is that not everybody, by their own acts and character, merits not being demeaned. I wouldn't have the least qualms about demeaning a rapist, for instance.

# posted by

Brett : 11:16 AM

Brett's comment captures part of it. But I would argue that there are sometimes social policy reasons to prohibit even relevant discrimination.

For instance there is certainly some evidence correlating race with the crime rate, or gender with the likelihood that an employee will leave the workplace to take care of children, or religion with the likelihood to impose the death penalty in a case where it is warranted. In the past, there was surely some correlation between sexual orientation and the likelihood of a male having health care costs relating to the detection and treatment of the HIV virus.

The bare standard of "relevance" captures part of the issue-- we certainly don't want to permit the use of these attributes when they are irrelevant-- but for various reasons, we forbid some "relevant" discrimination as well; those reasons include (1) the difficulty of determining the relevance of discrimination and the danger that our own prejudices might make us overestimate that relevance (this is at play in a lot of gender discrimination cases, where many people tend to think that gender is more relevant than it often is); (2) the unfairness and social breakdown that occurs if certain burdens fall disproportionately on one group (think racial profiling by the police); and (3) the superiority of turning to nondiscriminatory means of solving social problems when they are available and effective.

# posted by

Dilan : 1:59 PM

Somehow I get the feeling that this definition has been jury-rigged so as to provide a justification for affirmative action.

# posted by

Asher : 4:33 PM

"for once, i find i am in total agreement with brett.

discrimination should be legally impermissible when based on irrational, or irrelevant, reasons."

Well, then you're not in total agreement with me, because I don't think the fact that something is "wrong" is enough to justify outlawing it. Frown on it? Yes. Shun people who do it? Yes. But it takes a bit more than falling short of being a candidate for sainthood to justify having the hobnailed boot of the government come down on you.

Just as there are things, such as charity, which are admirable, but which should not be compelled, there are things, like private discrimination, which are despicable, but should not be forbidden. We don't want a society where all that's not mandatory is prohibited, do we?

# posted by

Brett : 4:38 PM

"In the past, there was surely some correlation between sexual orientation and the likelihood of a male having health care costs relating to the detection and treatment of the HIV virus."

In the past? LOL! In the present, too, and in all likelihood, into the future.

# posted by

Brett : 4:39 PM

I am not following you. Wouldn't discrimination on the basis of ability be "demeaning" under your definition? Wouldn't laws that prevent registered sex offenders from teaching children likewise be demeaning?

# posted by

mls : 5:06 PM

Your account, as presented so far, is missing the two most important elements: a conception of "discrimination" and some considerable elaboration on what it means to be "demeaning." The point about what "discrimination" is is probably the more important, since there are live disputes about whether things constitute "discrimination" or "equal treatment."

# posted by

Unknown : 9:19 PM

"might well acknowledge that other children are relevantly like mine yet still maintain that I may distinguish between other children and my own in all sorts of contexts"

The fact they are your children make them different in a core fashion.

As to "demeaning" rapists, I think the matter like "relevant" (some of Dilan's other reasons seem in some fashion related to relevance; others seem to do in a de facto sense) is one of definition.

We have certain limits on treatment of criminals. For instance, the 8A. But, we do punish them. This in some ways "demeans" them, but not in a broad sense -- they committed an offense and a penalty is justified.

When we do something wrong, we sometimes "take our medicine" and provide some restitution. Many don't feel "demeaned" by doing so, even if it can be embarassing. This includes many prisoners, if they feel they were treated fairly.

# posted by

Joe : 11:38 PM

Discrimination is wrong only when done by government. May be stupid or "illegal" when done by individuals or private institutions, but only government has the legal authority to use force to uphold it's decisions.

Want a white only restaurant - do it
Black only - why not
No Jews allowed - ok
Catholic's only - sure
Won't rent to unmarried couples - works for me
Won't hire gays because it violates your religious principles & freedom of association - yup
Only want to hire gorgeous women as sales reps - more power to you

Dumb?
Stupid?
Bad for business?
Probably
But that's the price of freedom and individual liberty

But when government uses its monopoly use of force to back up it's discrimination or prohibit people from exercising their judgement, that's tyranny.

# posted by

Mitch : 11:28 AM

Professor Hellman,

I'm wondering if you could expand a bit on how the appropriateness of treating one's own child differently than others (in many contexts) undermines the view that, roughly, discrimination is wrong when it distinguishes along irrelevant dimensions.

After all, it seems natural to think that it's often appropriate to treat one's own child differently than others precisely because in many contexts a person's being one's own child is a relevant difference between this person and others.

And similarly, it's natural to think that when it's wrong to treat one's own child differently than others, this is because being one's child is not a relevant distinguishing feature in the context. For example, it's wrong for a teacher who ends up with her son in her class to grade his work differently, because in this context being her son is not a relevant distinction between him and the other students in the class.

So I'm curious how you think this example undermines the view you leverage it against.

# posted by

bme : 4:49 PM

As to Mitch's reply, it wishes to erase the limitations (as Harlan noted in 1883, having a long history) placed on public accomodations. IOW, in some fashion governmental in nature.

Stores and such are not simply private residences in which selective ingress and egress is legitimate. You can date or have friends or invite into your home who you want. But, stores are different. They have special privileges and limitations.

This is partially a commercial matter. The state can regulate public accomodations as part of its commerce power. Discrimination makes it quite irregular and problematic.

The first Justice Harlan also argued discrimination in public accomodations (and federal law in housing also matters here) is a badge of slavery. Freedom included equality in PUBLIC areas.

Finally, when you enforce many of these things in the courts, the government is involved. When done to keep truly private areas private, fine, but not public ones.

# posted by

Joe : 6:32 PM

Joe, I believe your post is next to the phrase "begging the question" in the dictionary. Why can't I declare your home -- which is just as much private property as a store is -- public?

# posted by

David Nieporent : 11:25 AM

You said [quote] “To begin to answer the question of when discrimination is wrong, it is helpful to reflect on why differentiating among people may be troubling. It is not, as the old shibboleth would have it, because “like cases should be treated alike.” Putting aside the complex question of who is relevantly like whom, even so, we need not always treat likes alike. I might well acknowledge that other children are relevantly like mine yet still maintain that I may distinguish between other children and my own in all sorts of contexts. Yet distinguishing between people on the basis of that trait (being my child) as well as many, many others is morally wrong in many contexts. The reasons this is so is because people are equally important and this fact limits the way that we may treat others. Each person is of equal worth. We matter equally. This is a bedrock moral principle that underlies conflicting philosophical and other moral views. Differentiating among people is potentially morally problematic then because of the important worry that in treating people differently we may fail to treat them as moral equals.

Thus the question that must guide our inquiry is when does differentiation fail to treat the people affected as people of equal worth? The answer, in my view, is this: discrimination is wrong when it is demeaning and not wrong when it is not demeaning.” [end quote]

You set up the “old shibboleth” that “like cases should be treated alike” and dismiss it. The shibboleth dates at least from Aristotle’s discussion of justice in the Nicomachean Ethics, and I think it underlies much of what you say. It is the 14th Amendment’s mandate that the state shall not “deny to any person within its jurisdiction [the primary class of likes] the equal protection of the laws [which create other classes of likes].”

You refer to the shibboleth as a reason why “differentiating among people may be troubling.” However, the shibboleth is not a reason why such distinctions may be troubling at the level into which you inquire. It is a neutral principle for distinguishing among people. The moral work is in the reasons why such and such an characteristic on which to measure equality is chosen. Therefore, the shibboleth appears to have been thoughtlessly used as a straw-horse, when it could have done a lot of work for your analysis.

Equality is a matter of justice. Systems of justice are represented in constitutional orders. That is, the US Constitution establishes a system of justice. In that system of justice the presumption is that all citizens are equal in rights, privileges, immunities, duties, etc. Therefore, the shibboleth is an underlying principle of all subsidiary reasoned distinctions or groupings among citizens.

In a sovereign entity, or system of justice, political theory generally distinguishes several different classes of actors or objects: the government or state itself; civil society; families; individuals; and business (when not considered as civil society). As someone else pointed out, the issue here is treatment by the state of the other actors. Thus, your use of family dynamics to illustrate why the shibboleth does not work is not relevant. Justice within a family, if there can be said to be such a thing, certainly does not rest primarily on the idea that each person in the family is a citizen (the basic and flat equality). Rather, it is grounded in other principles of family organization and values; for Christians of a certain type, their brand of Christianity; for orthodox Jews, their brand; for secularists, the Episcopalian creed (just joking!); and so on.

The tension you address in general can be exactly described by the shibboleth. When a statute is passed that unfairly distinguishes a group, the moral/legal pressure is to dissolve the group into the whole again exactly because the members of the group are [like] full citizens; they deserve to be treated like others in their group; it is unfair to be treated as though they were not members. Likes *ought* to be treated as likes. Your concern is not the shibboleth, but the moral reasoning by which the shibboleth is invoked and justified. That is, the shibboleth is also central to your case, but as the structure, not the moral content.

Although the US Constitution appears to be our basic law, that is not the whole normative picture. Therefore normative analyses that assume the Constitution establishes the only legal context that matters (or that ad hoc norms can be utilized) will be skewed because the Constitution floats in a sea of other relevant, important and active norms: the moral order; natural law; international law; ius gentium and so on. These other systems of law are those within which the image of justice represented in our Constitution must be understood. I think discussions about equality have to be grounded in a theory of justice in the first place, before the particular way justice gets worked out under our Constitution can make sense. That grounding has to be articulated and rationally developed because it is exactly that normative discourse, or set of norms, by which the Constitutional problems can be judged. If we argue the Constitution ought to be understood in such and such a way, or the cases ought to have gone this way or that, we are directly referencing those other norms. If they remain unarticulated then the arguments remain incomplete. The so-called shibboleth is a structural principle in all equality analyses.

In your analyses, as presented in the blog, you use the other norm “demeaning” to distinguish between acceptable and unacceptable discrimination. I suppose you have had to address concerns that this is too subjective or psychological of a standard to do long-term work, but that is tangential to another point. One of the reasons that standard seems subjective and weak is that it is not linked [in the blog] to a theory of justice. It appears to be a psychological standard, rather than a political standard. It is essential to use political standards though, because the subject of justice (equality) is political. I would think the political cognate for discourse about “demeaning” is discourse about dignity. The word dignity is a highly politicized word (not in the biased sense) that references any one of a number of theories of justice, and plainly locates the issue in the proper context. It has a history in Supreme Court jurisprudence. One way to incorporate or assimilate that context would be to define “demeaning” as content for dignity discourse. That would add philosophical, political and practical depth to your argument, especially by the linkage to the many arguments justifying dignity. Why reinvent the wheel?

If the wheel is broken of course, then reinventing it would be important. But there is no evidence dignity discourse is outdated or weak in any way. In fact, it seems to continue to gather strength as the general justification for asserting rights, many of which are based in equality, and as a right in and of itself. Grounding moral arguments is not easy. The facile dismissal of a fundamental principle of equality analyses and the absence of dignity discourse suggest the grounding could be better developed.

# posted by

philiatros : 1:05 PM

Discrimination is wrong when you don't like it and you can get enough people to agree with you. It's a political decision, and therefore depends on the views of the people in the polis. So the notion that it depends on someone being demeaned identifies nothing without knowing who is to decide the point, and the search for a universal truth as a basis for discriminating between good and bad discrimination is stupid and futile. Take Helleman for example. She's obviously a political feminist, so her ideas of what is demeaning accord with what she sees as antithetical to the interests of her political group (what are those interests? Getting an equal share of the pie which men create the biggest part of, of course. Women expect to just walk into equal jobs and equal pay without buying into equity even though the whole industry has been created by men. Women expect to get half the property on separation even though the men normally have paid for far more of it during the course of the relationship. etc etc). It's a competitive life baby. You have no fundamental rights to anything except what you can get your society to agree to or what the laws of physics dictate. What I suggest is that you stop whining about how people are being mean to you and get on with creating your own wealth if the nasty discriminators wont just give it to you despite your "equal dignity as a human being".

# posted by

Blind Chicken : 9:43 PM