## 1. The Concept of Discrimination




What is discrimination? More specifically, what does it mean to
discriminate *against* some person or group of persons? It
is best to approach this question in stages, beginning with an answer
that is a first approximation and then introducing additions,
qualifications, and refinements as further questions come into
view.


### 1.1 A First Approximation




In his review of the international treaties that outlaw discrimination,
Wouter Vandenhole finds that "[t]here is no universally accepted
definition of discrimination" (2005: 33). In fact, the core
human rights documents fail to define discrimination at all, simply
providing non-exhaustive lists of the grounds on which discrimination
is to be prohibited. Thus, the International Covenant on Civil
and Political Rights declares that "the law shall prohibit any
discrimination and guarantee to all persons equal and effective
protection against discrimination on any ground such as race, color,
sex, language, religion, political or other opinion, national or social
origin, property, birth or other status" (Article 26). And
the European Convention for the Protection of Human Rights declares,
"The enjoyment of the rights and freedoms set forth in this
Convention shall be secured without discrimination on any ground such
as sex, race, color, language, religion, political or other opinion,
national or social origin, association with a national minority,
property, birth or other status" (Article 14). Left
unaddressed is the question of what discrimination itself is.




Standard accounts hold that discrimination consists of actions,
practices, or policies that are--in some appropriate
sense--based on the (perceived) social group to which those
discriminated against belong and that the relevant groups must be
socially salient in that they structure interaction in important
social contexts (cf. Lippert-Rasmussen 2006: 169, and Holroyd 2018:
384). Thus, groups based on race, religion and gender qualify as
potential grounds of discrimination in any modern society, but groups
based on the length of a person's toenails would typically not
qualify. However, Eidelson has challenged the social salience
requirement (2015: 28-30), and a sound understanding of what makes
discrimination wrongful might depend on how the challenge is resolved.
Eidelson's view is examined in section 4.1 below. In the
meantime, the analysis of discrimination presented here will proceed
on the basis of the social salience requirement.




Discrimination against persons, then, is necessarily oriented toward
them based on their membership in a certain type of social group. But
it is also necessary that the discriminatory conduct impose some kind
of disadvantage, harm, or wrong on the persons at whom it is
directed. In this connection, consider the landmark opinion of the
U.S. Supreme Court in *Brown v. Board of Education,* holding
that *de jure* racial segregation in public schools is
unconstitutional. The Court writes, "Segregation with the
sanction of law ... has a tendency to [retard] the educational
and mental development of negro children and to deprive them of some
of the benefits they would receive in a racial[ly] integrated school
system" (1954: 495). Thus, the court rules that segregation
amounts to illegal discrimination against black children because it
imposes on them educational and psychological disadvantages.




Additionally, as *Brown* makes clear, the disadvantage imposed
by discrimination is to be determined relative to some appropriate
comparison social group. This essential reference to a comparison
group explains why duties of non-discrimination are "duties to
treat people in certain ways defined by reference to the way that
others are treated" (Gardner 1998: 355). Typically, the
relevant comparison group is part of the same society as the
disadvantaged group, or at least it is governed by the same overarching
political structure. In *Brown*, the relevant comparison
group consisted of white citizens. Accordingly, it would be
mistaken to think that the black citizens of Kansas who brought the
lawsuit were not discriminated against because they were treated no
worse than blacks in South Africa were being treated under
apartheid. Blacks in South Africa were not the proper comparison
class.




The appropriate comparison class is determined by normative
principles. American states are obligated to provide their black
citizens an education that is no worse than what they provide to their
white citizens; any comparison with the citizens or subjects of other
countries is beside the point. It should also be noted that,
whether or not American states have an obligation to provide an
education to any of their citizens, if such states provide an education
to their white citizens, then it is discriminatory for the states to
fail to provide an equally good education to their black
citizens. And if states *do* have an obligation to provide
an education to all their citizens, then giving an education to whites
but not blacks would constitute a double-wrong against blacks: the
wrong of discrimination, which depends on how blacks are treated in
comparison to whites, and the wrong of denying blacks an education,
which does not depend on how whites are treated.




Discrimination is necessarily comparative, and the *Brown* case
seems to suggest that what counts in the comparison is not how well or
poorly a person (or group) is treated on some absolute scale, but
rather how well she is treated relative to some other person. But an
important element of the court's reasoning in *Brown*
suggests that the disadvantage or wrong imposed by a discriminatory
act can encompass more than the harmful downstream causal consequences
of the act. Thus, the Court famously writes, "Separate
educational facilities are inherently unequal" (1954: 495). The
Court can be construed as saying that, apart from the harmful
educational and psychological consequences for black children, the Jim
Crow segregation of public schools stamps those children with a badge
of inferiority and thereby treats them unfavorably in comparison to
white children.




It is important to recognize that discrimination, in the morally and
socially relevant sense, is not simply differential treatment.
Differential treatment is symmetrical: if blacks are treated
differently from whites, then whites must be treated differently from
blacks. But it is implausible to hold that Jim Crow and South Africa's
apartheid system discriminated against whites. The system arguably
held back economic progress for everyone in the South, but that point
is quite different from the implausible claim that everyone was a
victim of discrimination. Accordingly, it is better to think of
discrimination in terms of disadvantageous treatment rather than
simply differential treatment. Discrimination imposes a disadvantage
on certain persons relative to others, and those who are treated more
favorably are not to be seen as victims of discrimination.




An act can both be discriminatory and, simultaneously, confer an
absolute benefit on those discriminated against, because the conferral
of the benefit might be combined with conferring a greater benefit on
the members of the appropriate comparison group. In such a case,
the advantage of receiving an absolute benefit is, at the same time, a
*relative* disadvantage or deprivation. For example,
consider the admissions policy of Harvard University in the early
twentieth century, when the university had a quota on the number of
Jewish students. Harvard was guilty of discriminating against all
Jewish applicants on account of their religion. Yet, the
university still offered the applicants something of substantial value,
viz., the opportunity to compete successfully for admission. What
made the university's offer of this opportunity discriminatory
was that the quota placed (potential and actual) Jewish applicants at a
disadvantage, due to their religion, relative to Christian ones.




One might think that it downplays the harm done by discrimination to
say that the disadvantage it imposes only need be a relative
disadvantage. However, the *Brown* case shows how the
imposition of even a "merely" relative disadvantage can
have extremely bad and unjust consequences for persons, especially
when the relevant comparison class consists of one's fellow
citizens. Disadvantages relative to fellow citizens, when those
disadvantages are severe and concern important goods such as education
and social status, can make persons vulnerable to domination and
oppression at the hands of their fellow citizens (Anderson 1999). The
domination and oppression of American blacks by their fellow citizens
under Jim Crow was made easier by the relative disadvantage imposed on
blacks when it came to education. Norwegians might have had an even
better education than southern whites, but Norwegians posed little
threat of domination to southern whites or blacks, because they lived
under an entirely separate political structure, having minimal
relations to American citizens. Matters are different in today's
globalized world, where an individual's disadvantage in access
to education relative to persons who live in other countries could
pose a threat of oppression. Accordingly, one must seriously consider
the possibility that children from poor countries are being
discriminated against when they are unable to obtain the education
routinely available to children in affluent societies. 




The relative nature of the disadvantage that discrimination imposes
explains the close connection between discrimination and
inequality. A relative disadvantage necessarily involves an
inequality with respect to persons in the comparison class.
Accordingly, antidiscrimination norms prohibit certain sorts of
inequalities between persons in the relevant comparison classes (Shin
2009). For example, the U.S. Civil Rights Act of 1866 requires
that all citizens "shall have the same right, in every State and
Territory in the United States, to make and enforce contracts, to sue,
be parties, and give evidence, to inherit, purchase, lease, sell, hold,
and convey real and personal property, and to full and equal benefit of
all laws and proceedings for the security of person and property, as is
enjoyed by white citizens" (Civil Rights Act 1866). And the
international convention targeting discrimination against women
condemns "any distinction, exclusion or restriction made on the
basis of sex which has the effect or purpose of impairing or nullifying
the recognition, enjoyment or exercise by women ... on a basis of
equality of men and women, of human rights and fundamental
freedoms" (CEDAW, Article 1).




To review: as a reasonable first approximation, we can say that
discrimination consists of acts, practices, or policies that impose a
relative disadvantage on persons based on their membership in a salient
social group. But notice that this account does not make
discrimination morally wrong as a conceptual matter. The
imposition of a relative disadvantage might, or might not, be
wrongful. In the next section, we will see how the idea of moral
wrongfulness can be introduced to form a moralized concept of
discrimination.




In recent years, some thinkers have rejected the view that
discrimination is an essentially comparative concept that looks to how
certain persons are treated relative to others. For example,
Reaume argues against the view by invoking the
"leveling-down objection." She points out that, if there
is an inequality in the distribution of some benefit between two
persons or groups, then we need to ask "whether leveling up or
leveling down are, other things held constant, regarded as equally
attractive solutions" (2013: 8). The comparative view seems to
entail that the two solutions are equally attractive, but,
Reaume points out, plaintiffs in discrimination cases who are
demanding equal treatment "rarely put their claim this
way" (8) and would not be satisfied with the leveling-down
solution: "they ask to vote as well, not that voting be
abolished, or that a pension scheme include them, not that it be
repealed." Reaume continues, "To level down would
deprive everyone of something all are properly entitled to, and thus
exacerbate rather than solve the problem" (11).




Nonetheless, the leveling-down objection is problematic. That
plaintiffs in discrimination cases do not ask that voting be abolished
only shows that they know that they would be better off with everyone
having the right to vote than with no one having it. Moreover,
although leveling down would, in typical cases, deprive everyone of
something to which all are entitled, it does not follow that leveling
down would constitute discrimination. The universal denial of the
franchise would be a wrong, but not the wrong of
discrimination. Denial of the franchise amounts to discrimination only
when it is selectively directed at some salient group within the adult
population. Accordingly, Lippert-Rasmussen seems to be right when he
explains, "Unlike other prima facie morally wrong acts, such as
lying, hurting, or manipulating, one cannot discriminate against some
unless there are others who receive (or who would receive) better
treatment at one's hands .... I can rebut an accusation of
having discriminated against someone by saying that I would have
treated anyone else at least as badly in that situation" (2014:
16).


### 1.2 The Moralized Concept




The concept of discrimination is inherently normative to the extent
that the idea of disadvantage is a normative one. But it does not
follow from this point that discrimination is, by definition, morally
wrong. At the same time, many--or even most--uses of the
term 'discrimination' in contemporary political and legal
discussions do employ the term in a moralized sense. Wasserman is
using this moralized sense, when he writes that "[t]o claim that
someone discriminates is ... to challenge her for justification;
to call discrimination 'wrongful' is merely to add
emphasis to a morally-laden term" (1998: 805). We can, in fact,
distinguish a moralized from a non-moralized concept of
discrimination. The moralized concept picks out acts, practices or
policies insofar as they *wrongfully* impose a relative
disadvantage on persons based on their membership in a salient social
group of a suitable sort. The non-moralized concept simply dispenses
with the adverb 'wrongfully'.




Accordingly, the sentence 'Discrimination is wrong' can be
either a tautology (if 'discrimination' is used in its
moralized sense) or a substantive moral judgment (if
'discrimination' is used in its non- moralized
sense). And if one wanted to condemn as wrong a certain act or
practice, then one could call it 'discrimination' (in the
moralized sense) and leave it at that, or one could call it
'discrimination' (in the non-moralized sense) and then add
that it was wrongful. In contexts where the justifiability of an
act or practice is under discussion and disagreement, the moralized
concept of discrimination is typically the key one used, and the
disagreement is over whether the concept applies to the act.
Because of its role in such discussion and disagreement, the remainder
of this article will be concerned with the moralized concept of
discrimination, unless it is explicitly indicated otherwise.




There is an additional point that needs to be made in connection with
the wrongfulness of discrimination in its moralized sense. It is
not simply that such discrimination is wrongful as a conceptual
matter. The wrongfulness of the discrimination is tied to the
fact that the discriminatory act is based on the victim's
membership in a salient social group. An act that imposes a
relative disadvantage or deprivation might be wrong for a variety of
reasons; for example, the act might violate a promise that the agent
has made. The act counts as discrimination, though, only insofar
as its wrongfulness derives from a connection of the act to the
membership in a certain group(s) of the person detrimentally affected
by the act. Accordingly, we can refine the first-approximation
account of discrimination and say that the *moralized* concept
of discrimination is properly applied to acts, practices or policies
that meet two conditions: a) they wrongfully impose a relative
disadvantage or deprivation on persons based on their membership in
some salient social group, and b) the wrongfulness rests (in part) on
the fact that the imposition of the disadvantage is on account of the
group membership of the victims.


## 2. Types of Discrimination (in its Moralized Sense)




Legal thinkers and legal systems have distinguished among a bewildering
array of types of discrimination: direct and indirect, disparate
treatment and disparate impact, intentional and institutional,
individual and structural. It is not easy to make sense of the morass
of categories and distinctions. The best place to start is
with direct discrimination.


### 2.1 Direct Discrimination




Consider the following, clear instance of direct discrimination. In
2002, several men of Roma descent entered a bar in a Romanian town and
were refused service. The bar employee explained his conduct by
pointing out to them a sign saying, "We do not serve
Roma." The Romanian tribunal deciding the case ruled that the
Roma men had been the victims of unlawful direct
discrimination (Schiek, Waddington, & Bell 2007: 185). The
bar's policy, as formulated in its sign, explicitly and
intentionally picked out the Roma qua Roma for disadvantageous
treatment. It was those two features--explicitness and
intention--that made the Roma case a paradigmatic example of
direct discrimination. Such examples of discrimination are cases in
which the agent acts with the aim of imposing a disadvantage on
persons for being members of some salient social group. In the Roma
case, the bartender and bar owner aimed to exclude Roma for being
Roma, and so both the owner's policy and the bartender's
maxim of action explicitly referred to the exclusion of Roma. It is
clear that the policy of the bar was wrong, but the question of what
makes the policy and other instances direct discrimination wrongful
will be put on hold until section 4.1 below.




In some cases, a discriminator will adopt a policy that, on its face,
makes no explicit reference to the group that he or she aims to
disadvantage. Instead, the policy employs some facially-neutral
surrogate that, when applied, accomplishes the discriminator's
hidden aim. For example, during the Jim Crow era, southern states
used literacy tests for the purpose of excluding African-Americans from
the franchise. Because African-Americans were denied adequate
educational opportunities and because the tests were applied in a
racially-biased manner, virtually all of the persons disqualified by
the tests were African-Americans, and, in any given jurisdiction, the
vast majority of African-American adults seeking to vote were
disqualified. The point of the literacy tests was precisely such
racial exclusion, even though the testing policy made no explicit
reference to race.




Notwithstanding the absence of an explicit reference to race in the
literacy tests themselves, their use was a case of direct
discrimination. The reason is that the persons who formulated,
voted for, and implemented the tests acted on maxims that *did*
make explicit reference to race. Their maxim was something along
the lines of: 'In order to exclude African-Americans from the
franchise and do so in a way that appears consistent with the U.S.
Constitution, I will favor a legal policy that is racially-neutral on
its face but in practice excludes most African-Americans and leaves
whites unaffected.' As with the Roma case, there were
agents whose aim was to disadvantage persons for belonging to a certain
social group.




However, it is too simple to say that direct discrimination
simply *is* intentional discrimination. Lippert-Rasmussen
rightly points out that there can be cases of direct discrimination
not involving the intention to disadvantage anyone on account of her
group membership (2014: 59-60). A disadvantage might, instead,
be imposed as a result of a general indifference toward the interests
and rights of the members of a certain group. Thus, an employer might
use hiring criteria that unfairly disadvantages women, not because the
employer intends to disadvantage women, but because the criteria are
easy to use and he simply does not care that women are unfairly
disadvantaged as a result. Such instances of discrimination might not
have the paradigmatic status that an example like the Roma case has,
but they should be counted as forms of direct discrimination, because
the disadvantageous treatment derives from an objectionable mental
state of the agent. The same goes for disadvantageous treatment that
is the product of bias against a certain group, even when the bias
does not involve an intention to treat the group disadvantageously. A
paternalistic employer might intend to help women by hiring them only
for certain jobs in his company, but, if the employer is motivated by
unwarranted views about the capabilities of women, he is guilty of
direct discrimination.




Acts of direct discrimination can be unconscious in that the agent is
unaware of the discriminatory motive behind them. It is plausible to
think that in many societies, unconscious prejudice is a factor in a
significant range of discriminatory behavior, and a viable
understanding of the concept of discrimination must be able to
accommodate the possibility. In fact, there is growing evidence that
unconscious discrimination exists (Jost et al. 2009; Payne and Cameron
2010; and Brownstein and Saul 2016). And as Wax has noted, even the
intention to disadvantage persons on account of their group
affiliation can be unconscious (2008: 983).


### 2.2 Indirect Discrimination




Under many legal systems, an act that imposes a disproportionate
disadvantage on the members of a certain group can count as
discriminatory, even though the agent has no intention to disadvantage
the members of the group and no other objectionable mental state, such
as indifference or bias, motivating the act. This form of
discriminatory conduct is called "indirect discrimination"
or, in the language of American doctrine, "disparate
impact" discrimination. Thus, the European Court of Human Rights
(ECHR) has held that "[w]hen a general policy or measure has
disproportionately prejudicial effects on a particular group, it is
not excluded that this may be considered as discriminatory
notwithstanding that it is not specifically aimed or directed at that
group" (Shanaghan v. U.K. 2001: para. 129).




It should be noted that the ECHR says that policies with
disproportionate effects *may* be discriminatory even if that is
not the aim of the policies. So what criterion determines when a
policy with disproportionately worse effects on a certain group
actually counts as indirect discrimination? There is no agreed
upon answer.




The ECHR has laid down the following criterion: a policy with
disproportionate effects counts as indirect discrimination "if
it does not pursue a legitimate aim or if there is not a reasonable
relation of proportionality between means and aim" (Abdulaziz et
al. v. U.K., 1985: para. 721). The Human Rights Committee of the
United Nations has judged that a policy with disproportionate effects
is discriminatory "if it is not based on objective and
reasonable criteria" (Moucheboeuf 2006: 100). Under the British
Race Relations Act, such a policy is discriminatory if the policymaker
"cannot show [the policy] to be justifiable irrespective of the
... race ... of the person to whom it is applied"
(Osin and Porat 2005: 900). And in its interpretation of the Civil
Rights Act of 1964, the U.S. Supreme Court has held that, in judging
whether the employment policies of private businesses are (indirectly)
discriminatory, "[i]f an employment practice which operates to
exclude Negroes cannot be shown to be related to job performance, the
practice is prohibited" (*Griggs v. Duke Power* 1971:
431). Despite the differences, these criteria have a common thought
behind them: a disproportionately disadvantageous impact on the
members of certain salient social groups must not be written off as
morally or legally irrelevant or dismissed as mere accident, but
rather stands in need of justification. In other words, the impact
must not be treated as wholly inconsequential, as if it were
equivalent, for example, to a disproportionate impact on persons with
long toe nails. Toe-nail group impact would require no justification,
because it would simply be an accidental and morally inconsequential
feature of the act, at least in all actual societies. In contrast, the
thought behind the idea of indirect discrimination is that, if an act
has a disproportionately disadvantageous impact on persons belonging
to certain types of salient social groups, then the act is morally
wrong and prohibited by anti-discrimination law unless it can meet
some suitable standard of justification.




To illustrate the idea of indirect discrimination, we can turn to the
U.S. Supreme Court case, *Griggs v. Duke Power* (1971). A
company in North Carolina used a written test to determine
promotions. The use of the test had the result that almost all black
employees failed to qualify for the promotions. The company was not
accused of direct discrimination, i.e., there was no claim that a
racially discriminatory attitude was behind the decision of the
company to use the written test. But the court found that the test did
not measure skills essential for the jobs in question and that the
state of North Carolina had a long history of deliberately
discriminating against blacks by, among other things, providing
grossly inferior education to them. The state had only very recently
begun to rectify that situation. In ruling for the black plaintiffs,
the court reasoned that the policy of using the test was racially
discriminatory, because of the test's disproportionate racial
impact combined with the fact that it was not necessary to use the
test to determine who was best qualified for promotion.


### 2.3 Organizational, Institutional, and Structural Discrimination




In many cases, acts of discrimination are attributed to collective
agents, rather than to natural persons acting in their individual
capacities. Accordingly, corporations, universities, government
agencies, religious bodies, and other collective agents can act in
discriminatory ways. This kind of discrimination can be called
"organizational," and it cuts across the direct-indirect
distinction. Confusion sometimes arises when it is mistakenly believed
that organizations cannot have intentions and that only indirect
discrimination is possible for them. As collective agents,
organizations do have intentions, and those intentions are a function
of who the officially authorized agents of the institution are and
what they are trying to do when they act as their official powers
enable them. Suppose that the Board of Trustees of a university votes
to adopt an admissions policy that (implicitly or explicitly) excludes
Jews, and the trustees vote that way precisely because they believe
that Jews are inherently more dishonest and greedy than other
people. In such a cases, *the university* is deliberately
excluding Jews and is guilty of direct discrimination. Individual
trustees acting in their private capacity might engage in other forms
of discriminatory conduct; for example, they might refuse to join
clubs that have Jewish members. Such a refusal would not count as
organizational discrimination. But any discriminatory acts
attributable to individual board members in virtue of some official
power that they hold would count as organizational discrimination.




Structural discrimination--sometimes called
"institutional" (Ture and Hamilton 1992 [1967]:
4)--should be distinguished from organizational: the structural
form concerns the rules that constitute and regulate the major sectors
of life such as family relations, property ownership and exchange,
political powers and responsibilities, and so on (Pogge 2008: 37). It
is true that when such rules are discriminatory, they are
often--though not always--the deliberate product of some
collective or individual agent, such as a legislative body or
executive official. In such cases, the agents are guilty of direct
discrimination. But the idea of structural discrimination is an effort
to capture a wrong distinct from direct discrimination. Thus, Fred
Pincus writes that "[t]he key element in structural
discrimination is not the intent but the effect of keeping minority
groups in a subordinate position" (1994: 84). What Pincus and
others have in mind can be explained in the following way.




When the rules of a society's major institutions reliably
produce disproportionately disadvantageous outcomes for the members of
certain salient social groups and the production of such outcomes is
unjust, then there is structural discrimination against the members of
the groups in question, apart from any direct discrimination in which
the collective or individual agents of the society might engage.
This account does not mean that, empirically speaking, structural
discrimination stands free of direct discrimination. It is highly
unlikely that the reliable production of unjust and
disproportionately disadvantageous effects would be a chance
occurrence. Rather, it is (almost) always the case that, at some
point(s) in the history of a society in which there is structural
discrimination, important collective agents, such as governmental ones,
intentionally created rules with the aim of disadvantaging the members
of the groups in question. It is also likely that some collective
and individual agents continue to engage in direct discrimination in
such a society. But by invoking the idea of structural
discrimination and attributing the discrimination to the rules of a
society's major institutions, we are pointing to a form of
discrimination that is conceptually distinct from the direct
discrimination engaged in by collective or individual agents. Thus
understood, structural discrimination is, as a conceptual matter,
necessarily indirect, although, as an empirical matter, direct
discrimination is (almost) always part of the story of how structural
discrimination came to be and continues to exist.




Also note that the idea of structural discrimination does not
presuppose that, whenever the rules of society's major
institutions consistently produce disproportionately disadvantageous
results for a salient group such as women or racial minorities,
structural discrimination thereby exists. Because our concern is
with the moralized concept of discrimination, one might think that
disproportionate outcomes, by themselves, entail that an injustice has
been done to the members of the salient group in question and that
structural discrimination thereby exists against the group.
However, on a moralized concept of structural discrimination, the
injustice condition is distinct from the disproportionate outcome
condition. Whether a disproportionate outcome is sufficient for
concluding that there is an injustice against the members of the group
is a substantive moral question. Some thinkers might claim that
the answer is affirmative, and such a claim is consistent with the
moralized concept of structural discrimination. However, the
claim is not presupposed by the moralized concept, which incorporates
only the conceptual thesis that a pattern of disproportionate
disadvantage falling on the members of certain salient groups does not
count as structural discrimination unless the pattern violates sound
principles of distributive justice.


## 3. Challenging the Concept of Indirect Discrimination




The distinction between direct and indirect discrimination plays a
central role in contemporary thinking about discrimination. However,
some philosophers hold that talking about indirect discrimination is
confused and misguided. For these philosophers, direct discrimination
is the only genuine form of discrimination. Examining their challenge
to the very concept of indirect discrimination is crucial in
developing a philosophical account of what discrimination is.


### 3.1 Is Indirect Discrimination Really Discrimination?




Young argues that the concept of discrimination should be limited to
"intentional and explicitly formulated policies of exclusion or
preference." She holds that conceiving of discrimination in
terms of the consequences or impact of an act, rather than in terms of
its intent, "confuses issues" by conflating discrimination
with oppression. Discrimination is a matter of the intentional conduct
of particular agents. Oppression is a matter of the outcomes routinely
generated by "the structural and institutional framework"
of society (1990: 196).




Cavanagh holds a position similar to Young's, writing that
persons "who are concerned primarily with how things like race
and sex show up in the overall distributions [of jobs] have no
business saying that their position has anything to do with
discrimination. It is not discrimination they object to, but its
effects; and these effects can equally be brought about by other
causes" (2002: 199). On Cavanagh's view, then, if one finds it
inherently objectionable for political officeholders to be
predominantly male, then one can sensibly charge that such a
disproportion is unjust but cannot coherently claim that it is, in
itself, discriminatory.




Along the same lines, Eidelson contends that
"'indirect' discrimination is not usefully thought
of as a distinct form of discrimination at all, except as a piece of
legal jargon" (2015: 19). He writes, "Precisely because
the connotation of 'discrimination' as an act ... in
which an agent is sensitive to some feature of the discriminatee, and
engages in some manner of differential treatment, is inescapable,
describing indirect discrimination as discrimination is a serious
obstacle to clear communication" (56).




The arguments of Cavanagh, Eidelson and Young raise a question that is not easy
to answer, viz., why can indirect and direct discrimination be
legitimately considered as two subcategories of one and the same
concept? In other words, what do the two supposed forms of
discrimination really have in common that make them forms of the same
type of moral wrong? Direct discrimination is essentially a
matter of the reasons or motives that guide the act or policy of a
particular agent, while indirect discrimination is not about such
reasons or motives. Even conceding that acts or policies of
each type can be wrong, it is unclear that the two types are each
species of one and the same kind of moral wrong, i.e., the wrong of
discrimination. And if cases of direct discrimination are
paradigmatic examples of discrimination, then a serious question arises
as to whether the concept of discrimination properly applies to the
policies, rules, and acts that are characterized as
"indirect" discrimination.




Moreover, there is a crucial ambiguity in how discrimination is
understood that lends itself to conflating direct discrimination with
the phenomena picked out by 'indirect
discrimination'. Direct discrimination involves the
imposition of disadvantages "based on" or "on account
of" or "because of" membership in some salient social
group. Yet, these phrases can refer either to a) the reasons that
guide the acts of agents or to b) factors that do not guide agents but
do help explain why the disadvantageous outcomes of certain acts and
policies fall disproportionately on certain salient groups (Cf. Shin
2010). In the Roma case, the disadvantage was "because
of" ethnicity in the former sense: the ethnicity of the
Roma was a consideration that guided the acts of the bar owner and
bartender. In the Griggs case, the disadvantage was
"because of race" in the latter sense: race did not
guide the acts of the company but neither was it an accident that the
disadvantages of the written test fell disproportionately on
blacks. Rather, race, in conjunction with the historical
facts about North Carolina's educational policies, explained why
the disadvantage fell disproportionately on black employees.




The thought that the policy of the company in Griggs is a kind of
discrimination, viz., indirect discrimination, seems to trade on the
ambiguity in the meanings of the locutions 'based on',
'because of', 'on account of', and so on.
The state of North Carolina's policy of racial segregation in
education imposed disadvantages based on/because of/on account of race,
in one sense of those terms. The company's policy of using
a written test imposed disadvantages based on/because of/on account of
race, in a different sense. Even conceding that both the state
and the company wronged blacks on the basis of their race, it appears
that the two cases present two different kinds of wrong.



Nonetheless, the idea of indirect discrimination can help to highlight
how the wrongful harms of direct discrimination are capable of
ramifying via acts and policies that are not directly discriminatory
and would be entirely innocent but for the link between them and acts
of direct discrimination. In the Griggs case, direct discrimination
had harmed blacks by putting them at an educational disadvantage.
Even if the direct discrimination had ceased at some prior point, the
policy of the company enabled the educational disadvantage to branch
into an employment disadvantage, thereby amplifying and perpetuating
the wrongful harms of the original direct discrimination. The
language of indirect discrimination can spotlight the link between the
two forms of disadvantage and capture the idea that the wrongful harms
of direct discrimination should not be allowed to extend willy-nilly
across time and domains of life via otherwise innocent acts. 



However, it is also true that the idea of indirect discrimination is
typically understood in a broader way that does not require any
connection to direct discrimination. Accordingly, in his discussion
of how persons adhering to certain religious beliefs or practices
might be put at an unjust disadvantage by an employer's dress
code, Jones writes, "Indirect discrimination law aims ...
to eliminate inequalities of opportunity arising from religion or
belief" (170). For example, if a code excludes a form of dress
that persons adhering to a particular religion regard as
theologically-favored, such as head coverings or veils, then the
British law of indirect discrimination requires that the company grant
an exemption to those persons, unless it can show that the code is a
proportionate means for achieving a legitimate aim. On Jones's
view, the law thereby counters, albeit in a limited way, an unjust
burden placed on certain religious adherents and promotes equal
employment opportunity.



The critics of the idea of indirect discrimination think that Jones is
conflating distinct wrongs: the right of equal opportunity can be
violated by discrimination, but it can also be violated by other sorts
of wrongs. Even if certain dress codes violate the right and do so in
a way that tracks a particular religious identity, it does not follow
that the codes are cases of wrongful discrimination. But Jones can
respond that, as long as the wrongful treatment tracks salient social
categories, differentially disadvantaging persons belonging to such a
category, then characterizing the treatment as discrimination is in
order.




Still, critics will contend that the concept of indirect
discrimination is problematic, because its use mistakenly presupposes
that the wrongfulness of discrimination can lie ultimately in its
*effects* on social groups. Certainly, bad effects can be
brought about by discriminatory processes, but critics argue that the
wrongfulness lies in what brings about the effects, i.e., in the
unfairness or injustice of those acts or policies that generate the
effects, and does not reside in the effects themselves. Addressing
this argument requires a closer examination of why discrimination is
wrong, the topic of section 4. Before turning to that section, it
would be helpful to address a suspicion that might arise in the course
of pondering whether indirect discrimination really is a form of
discrimination.


### 3.2 Is the Dispute Merely Terminological?




One might suspect that any disagreement over whether indirect
discrimination is really a form of discrimination is only a
terminological one, devoid of any philosophical substance and capable
of being adequately settled simply by the speaker stipulating how she
is using the term 'discrimination' (Cavanagh 2002:
199). One side in the disagreement could, then, stipulate that, as it
is using the term, 'discrimination' applies only to direct
discrimination, and the other side could stipulate that
'discrimination', as it is using the term, applies to
direct and indirect discrimination alike. However, the choice of
terminology is not always philosophically innocent or unproblematic. A
poor choice of terminology can lead to conceptual confusions and
fallacious inferences. Cavanagh argues that precisely these sorts of
infelicities are fostered when 'discrimination' is used to
refer to a wrong that essentially depends on certain effects being
visited upon the members of a social group (2002: 199). Moreover, the
critics and the defenders of the term 'indirect
discrimination' presumably agree with one another that the
concept of discrimination possesses a determinate meaning that either
admits, or does not admit, of an indirect form of discrimination. So
it seems that the disagreement over indirect discrimination has
philosophical significance.




The possibility should be acknowledged that the concept of
discrimination is insufficiently determinate to dictate an answer to
the question of whether there can be an indirect form of
discrimination. In that case, any disagreement over the possibility of
such discrimination would be devoid of philosophical substance and
should be settled by speaker stipulation. However, it would be hasty
to arrive at the conclusion that there is no answer before a thorough
examination of the concept of discrimination is completed and some
judgment is made about what the best account is of the concept. And a
thorough examination must take up the question of why discrimination
is wrong.


## 4. Why Is Discrimination Wrong?



In examining the question of why discrimination is wrongful, let us
begin with direct discrimination and then turn to the indirect
form. This approach will help shed some light on whether the wrongs
involved in the two forms are sufficiently analogous to consider them
as two types of one and the same kind of wrong.


### 4.1 The Wrongs of Direct Discrimination




Specifying why direct discrimination is wrongful has proved to be a
surprisingly controversial and difficult task. There is general
agreement that the wrong concerns the kind of reason or motive that
guides the action of the agent of discrimination: the agent is acting
on a reason or motive that is in some way illegitimate or morally
tainted. But there are more than a half-dozen distinct views about
what the best principle is for drawing the distinction between acts of
direct discrimination (in the moralized sense) and those acts that are
not wrongful even though the agent takes account of another's
social group membership.




One popular view is that direct discrimination is wrong because the
discriminator treats persons on the basis of traits that are immutable
and not under the control of the individual possessing them. Thus,
Kahlenberg asserts that racial discrimination is unjust because race
is such an immutable trait (1996: 54-55). And discrimination
based on many forms of disability would seem to fit this view. But
Boxill rejects the view, arguing that there are instances in which it
is justifiable to treat persons based on features that are beyond
their control (1992: 12-17). Denying blind people a
driver's license is not an injustice to them. Moreover, Boxill
notes that, if scientists developed a drug that could change a
person's skin color, it would still be unjust to discriminate
against people because of their color (1992: 16). Additionally, a
paradigmatic ground of discrimination, a person's religion, is
not an immutable trait, nor are some forms of disability. Thus, there
are serious problems with the popular view that direct discrimination
is wrong due to the immutable nature of the traits on the basis of
which the discriminator treats the persons whom he wrongs.



A second view holds that direct discrimination is wrong because it
treats persons on the basis of inaccurate stereotypes. When the state
of Virginia defended the male-only admissions policy of the Virginia
Military Institute (VMI), it introduced expert testimony that there
was a strong correlation between sex and the capacity to benefit from
the highly disciplined and competitive educational atmosphere of the
school: those who benefited from such an atmosphere were, for the most
part, men, while women had a strong tendency to thrive in a quite
different, cooperative educational environment. This defense involved
the premise that the school's admissions policy was not
discriminatory because the policy relied on accurate generalizations
about men and women. And in its ruling against VMI, the Supreme Court
held that a public policy "must not rely on overbroad
generalizations about the different talents, capacities, or
preferences of males and females" (*U.S. v. Virginia*
1996: 533). But the Court went on to argue that "generalizations
about 'the way women are', estimates of what is
appropriate for *most women*, no longer justify denying
opportunity to women whose talent and capacity place them outside the
average description" (550; *ital.* in original). 




The Court's reasoning implies that, even if gender were a very good
predictor of the qualities needed to benefit from and be successful at
the school, VMI's admissions policy would still be
discriminatory (Schauer 2003: 137-141). Accordingly, on the
Court's view, direct discrimination based on largely accurate
gender generalizations can still be wrongful. For example, consider a
fire department whose policy is to reject all women applicants for the
job of fire fighter, on the grounds that the vast majority of persons
having the requisite physical strength for the job are men and that
the policy saves the department the time and expense of testing
persons unlikely to meet the requirement. Even if the gender
generalization underlying the policy is accurate, it is clear that the
policy amounts to wrongful discrimination against women, depriving
them of their right to equal employment opportunity. Thus, the
wrongfulness cannot be explained simply by saying that the
generalization is inaccurate. 




A third view is that direct discrimination is wrong because it is an
arbitrary or irrational way to treat persons. In other words, direct
discrimination imposes a disadvantage on a person for a reason that is
not a good one, viz., that the person is a member of a certain salient
social group. Accordingly, Cotter argues that such discrimination
treats people unequally "without rational justification"
(2006: 10). Kekes expresses a similar view in condemning race-based
affirmative action as "arbitrary" (1995: 200), and, in the
same vein, Flew argues that racism is unjust because it treats persons
on the basis of traits that "are strictly superficial and
properly irrelevant to all, or almost all, questions of social status
and employability" (1990: 63-64).




However, many thinkers reject this third view of the wrongness of
direct discrimination. Gardner argues that there is no
"across-the-board-duty to be rational, so our irrationality
as such wrongs no one." Additionally, Gardner contends that
"there patently *can* be reasons, under some conditions,
to discriminate on grounds of race or sex," even though the
conduct in question is wrongful (1998: 168). For example, a
restaurant owner might rationally refuse to serve blacks if most of his
customers are white racists who would stop patronizing the
establishment if blacks were served (1998: 168 and 182). The
owner's actions would be wrong and would amount to a rational
form of discrimination. Additionally, Wasserstrom argues
that the principle that persons ought not to be treated on the basis of
morally arbitrary features cannot grasp the fundamental wrong of direct
racial discrimination, because the principle is "too contextually
isolated" from the actual features of a society in which many
people have racist attitudes (1995: 161). For Wasserstrom,
the wrong of racial discrimination cannot be separated from the fact
that such discrimination manifests an attitude that the members of
certain races are intellectually and morally inferior to the rest of
the population. 




A fourth view is that direct discrimination is wrong because it fails
to treat individuals based on their merits. Thus, Hook argues that
hiring decisions based on race, sex, religion and other social
categories are wrong because such decisions should be based on who
"is best qualified for the post" (1995: 146). In a similar
vein, Goldman argues that discriminatory practices are wrong because
"the most competent individuals have prima facie rights to
positions" (1979: 34).




Opponents of this merit-based view note that it is often highly
contestable who the "best qualified" really is, because
the criteria determining qualifications are typically vague and do not
come with weights attached to them (Wasserman 1998: 807).
Additionally, Cavanagh suggests that "hiring on merit has more
to do with efficiency than fairness" (2002: 20). Cavanagh also
notes that a merit principle cannot explain what is distinctively
wrong about an employer who discriminates against blacks because the
employer thinks that they are morally or intellectually inferior. The
merit approach "makes [the employer's] behavior look the
same as any other way of treating people ...
non-meritocratically" (2002: 24-25).




A fifth view, defended by Arneson and Lippert-Rasmussen, explains the
wrongfulness of discrimination in terms of a certain consequentialist
moral theory. The theory rests on the principle that every action
ought to maximize overall moral value and incorporates the idea that
benefits accruing to persons who are at a lower level of well-being
count more toward overall moral value than benefits to those at a
higher level. Additionally, the view holds that benefits to persons
who are more deserving of them count more than benefits to those who
are less deserving (Arneson 1999: 239-40 and Lippert-Rasmussen
2014: 165-83). This approach holds that discrimination is wrong
because it violates a rule that would be part of the social morality
that maximizes overall moral value. Thus, Arneson writes that his
view "can possibly defend nondiscrimination and equal
opportunity norms as part of the best consequentialist public
morality" (2013: 99). However, for many thinkers, the view will
fail to adequately capture a key aspect of discrimination, viz., that
discrimination is not simply wrong but that it is a wrong *to the
persons who are discriminated against*. One might argue in
defense of Arneson that those who are victimized by discrimination can
claim that they deserve the opportunity that is denied them, but
philosophers like Cavanagh, who object to the merit approach, will
have the same objections to such a defense (Cavanagh 2002: 20 and
24-25).


 

A sixth view, developed by Moreau, regards direct discrimination as
wrong because it violates the equal entitlement each person has to
freedom. In particular, she contends that "the interest that is
injured by discrimination is our interest in ...
*deliberative freedoms:* that is, freedoms to have our decisions
about how to live insulated from the effects of normatively extraneous
features of us, such as our skin color or gender" (2010:
147). Normatively extraneous features are "traits that we
believe persons should not have to factor into their deliberations
...*as costs*." For example,
"people should not be constrained by the social costs of being
one race rather than another when they deliberate about such questions
as what job to take or where to live" (2010:
149).




Yet, it is unclear that Moreau's account gets to the bottom of
what is wrong with discrimination. One might object, following the
criticisms leveled by Wasserstrom and Cavanagh at the arbitrariness
and merit accounts, respectively, that the idea of a normatively
extraneous feature is too abstract to capture what makes racial
discrimination a paradigmatic form of direct discrimination. There
are reasons that justify our belief "that persons should not
have to factor [race] into their deliberations ...*as
costs*," and those reasons seem to be connected to the idea
that racial discrimination treats persons of a certain race as having
a diminished or degraded moral status as compared to individuals
belonging to other races. The wrong of racial and other forms of
discrimination seems better illuminated by understanding it in terms
of such degraded status than in terms of the idea of normatively
extraneous features.




A seventh view, developed by Hellman, holds that "discrimination
is wrong because it is demeaning" (2018: 99). On her account, an
act that is demeaning in the relevant way is one that "expresses
that a person or group is of lower [moral] status" and is
performed by an agent who has "sufficient social power for the
expression to have force" (2018: 102). For example, it is
demeaning, she argues, for an employer to require female employees to
wear cosmetics because such a requirement "conveys the idea that
a woman's body is for adornment and enjoyment by others"
(2008: 42). Shin proposes a similar account in his discussion of equal
protection, arguing that "to characterize an action as unequal
treatment is to register a certain objection as to what, in view of
its rationale, the action expresses" (2009: 170). Offending
actions are ones that treat a person "as though that individual
belonged to some class of individuals that was less entitled to right
treatment than anyone else" (2009:169). And this seventh view
of what makes discrimination wrongful is reflected in the legal
case *Obergefell v. Hodges*, decided by the U.S. Supreme Court
and declaring unconstitutional laws prohibiting same-sex marriage. In
his opinion for the Court, Justice Kennedy wrote that "the
necessary consequence [of such laws] is to put the imprimatur of the
State itself on an exclusion that soon demeans or stigmatizes those
whose own liberty is then denied. Under the Constitution, same-sex
couples seek in marriage the same legal treatment as opposite-sex
couples, and it would disparage their choices and diminish their
personhood to deny them this right" (2015: Slip Opinion at
19).




Closely related to Hellman's account is an eighth view, holding
that direct discrimination is wrong on account of its connection to
prejudice, where prejudice is understood as an attitude that regards
the members of a salient group, *qua* members, as not entitled
to as much respect or concern as the members of other salient
groups. Prejudice can involve feelings of hostility, antipathy, or
indifference, as well as a belief in the inferior morals, intellect,
or skills of the targeted group. Returning to the case of the Roma who
were excluded by the policy of a bar, we could say that the policy was
discriminatory because it was the expression of prejudice against the
Roma, whereas a bar's policy of excluding men from the
women's restroom would fail to be discriminatory because it
would not be an expression of prejudice.




Ely defends a version of this eighth view, holding that discriminatory
acts are those that are *motivated* by prejudice (1980:
153-159). Dworkin has formulated an alternative version, arguing
that discriminatory acts are those that could be
*justified* only if some prejudiced belief were correct.
The absence of a "prejudice-free justification" thus makes
a law or policy discriminatory (1985: 66).



The eighth view, along with the accounts of Hellman and Shin, rest on
the intuitively attractive idea that the wrongfulness of direct
discrimination is tied to its denial of the equal moral status of
persons. The idea is at the center of Eidelson's account, which
holds that "acts of discrimination are intrinsically wrong when
and because they manifest a failure to show the discriminatees the
respect that is due them as persons" (2015: 7). Eidelson then
disaggregates two dimensions of personhood: all persons are 1)
"of [intrinsic] value and equally so" and 2)
"autonomous agents" (2015: 79), shaping their own lives
through their choices. Discrimination can violate either or both of
these dimensions, leading Eidelson to describe his account as a
"pluralistic view" (2015: 19; cf. Beeghly on "hybrid"
theories, 2018: 95). Thus, a physician who refuses to treat would-be
patients due to their race fails to recognize and appropriately
respond to their equal intrinsic value, and a fire department that
automatically rejects women who apply to be fire fighters violates the
women's autonomy by failing to make reasonable efforts to
determine whether they have endeavored to develop the requisite
physical strength.



Eidelson's account explicitly dispenses with the social salience
requirement, instead requiring only that the discriminator be
responding to some perceived difference of whatever kind between the
victim and other people. However, it is not clear that this approach
can draw a viable line between wrongful acts of discrimination, on the
one hand, and wrongful acts not helpfully characterized as
"discrimination," on the other. Murderers fail to respect
the personhood of their victims, and most murders involve some
perception of difference between the victim and others. But murders
are typically regarded as acts of discrimination only when they are
"hate crimes" connected to the victim's membership
in some salient social group. So Eidelson's account seems
overinclusive. Yet, Eidelson can reply that any account that
incorporates the social salience requirement will be underinclusive,
because it will fail to count as discrimination the actions of an
employer who hires workers on the basis of hair color in a society
where hair color is not socially salient (2018: 28-30).



At this point, we should step back and ask: Why do we need the
(moralized) idea of discrimination in the first place? What is the
value of having it? For Eidelson, its value seems to reside in
picking out certain wrongs, quite apart from any connection those
wrongs might, or might not, have to socially systemic injustices. But
we have concepts for murder and other wrongs against personhood, and,
if we abstract from socially systemic considerations, the fact that
the wrongs involve distinguishing among persons does not appear to
carry much moral significance in typical cases. If I steal from you
rather than your neighbor because you have taken fewer precautions
against theft, then I have wrongfully shown disrespect for your
autonomy, but my having discriminated between you and your neighbor
seems beside the point, morally speaking. 



For defenders of the social salience requirement, the value of the
idea of discrimination is that it can be used to pick out and
highlight injustices that track socially salient categories. And a
strong reason for having a concept that captures such injustices is
that they are the among the most widespread and serious over the
course of history (see section 6 below). From this perspective,
Eidelson's hypothetical case of the idiosyncratic employer who
discriminates on the basis of hair color should not dictate how the
core of the moralized concept of discrimination is constructed or
construed but rather should be regarded as peripheral to the central
reason for having a concept of discrimination. Additionally, as we
will see in the next section, this perspective casts light on why the
idea of indirect discrimination is a valuable part of our moral
thinking.


### 4.2 The Wrongs of Indirect Discrimination




The most egregious forms of indirect discrimination are typically
structural, due to the pervasive impact of a society's basic
institutions on the life-prospects of its members (Rawls 1971:
7). Indirect discrimination is structural when the rules and norms
of society consistently produce disproportionately disadvantageous
outcomes for the members of a certain group, relative to the other groups
in society, the outcomes are unjust to the members of the disadvantaged
group, and the production of the outcomes is to be explained by the
group membership of those individuals. Cass Sunstein nicely captures the
wrong of this form of indirect discrimination in the course of
explaining his antidiscrimination principle, which he calls the
"anticaste principle." He writes, "The
motivating idea [for the anticaste principle] is that without good
reason, social and legal structures should not turn differences that
are both highly visible and irrelevant from the moral point of view
into systematic social disadvantages. A systematic disadvantage is one
that operates along standard and predictable lines in multiple and
important spheres of life" (1994: 2429). In a similar vein,
Catharine MacKinnon finds structural discrimination against women to be
intolerable because it consists of "the systematic
relegation of an entire group of people to a condition of
inferiority" (1987: 41).




Two related wrongs belonging to structural discrimination can be
distinguished. First is the wrong that consists of society's major
institutions imposing, without adequate justification, relative
disadvantages on persons belonging to certain salient social
groups. Accordingly, it is wrong for society's basic rules to deny to
women or to racial or religious minorities opportunities for personal
freedom, development, and flourishing equal to those that men or
racial and religious majorities enjoy. Second is the wrong of placing
the members of a salient social group in a position of vulnerability
to exploitation and domination as a result of the denial of equal
opportunities and the imposition of other kinds of relative
disadvantage. Accordingly, it is wrong for a society to make women
vulnerable to sexual exploitation and domination at the hands of men
by the imposition of various economic and social disadvantages
relative to men.




In contrast, the wrongs of non-structural forms of indirect
discrimination seem to be dependent on structural (or direct)
discrimination. Consider the *Griggs* case. The
company's promotion policy was not part of the wrong involved in
society's basic institutions imposing relative disadvantages on
blacks. But the policy did have some connection to structural
racial discrimination and to the widespread direct discrimination
against blacks that existed prior to and contemporaneous with the
policy. The policy helped to perpetuate the unjust disadvantages
that were due to such structural and direct discrimination, even though
the policy was not needed to serve any legitimate business purpose, and
that was why the policy was wrong. Or at least that is what the
proponents of the idea of indirect discrimination appear to have in
mind when they talk about non-structural forms of indirect
discrimination.




Are the wrongs of indirect discrimination sufficiently similar to the
wrongs of direct discrimination that it is reasonable to say that they
are, in fact, two different types of one and the same wrong? We have
seen that the accounts of the wrong of direct discrimination are many
and various. But abstracting from those differences, critics of the
idea of indirect discrimination might argue that discrimination is
essentially a process-based wrong, rather than an outcome-based one,
and that only direct discrimination is process-based. In other words,
only with direct discrimination is there a defect in how some outcome
is brought about, rather than in what the outcome itself is. On this
view, discriminating against people is similar to having someone who
has been bribed serve as a judge in an ice-skating competition: just
as the biased judging taints the process by which places are awarded
in the competition, discrimination taints the process by which
opportunities and other social goods get distributed among the members
of society.




However, one can understand indirect discrimination as involving
process-based wrongs, although the wrongs do not necessarily occur at
the retail level of the practical reasoning of specific agents.
Consider the structural form of indirect discrimination.
Disproportionately disadvantageous outcomes do not, by
themselves, amount to structural discrimination, even when those
outcomes fall on the shoulders of the members of a salient social group
such as women or racial or religious minorities. There must also
be a linkage between membership in the group and the disadvantageous
outcomes: group membership must help explain why the disproportionately
disadvantageous outcomes fall where they do. This explanation
will proceed at the wholesale level of macro-social facts about the
population and the various groups that constitute it. But the
requirement of a linkage shows that how the disproportionate outcomes
are brought about is essential to the existence of structural
discrimination. There must be social processes at work that, as
Sunstein puts its, "turn differences that are both highly visible
and irrelevant from the moral point of view into systematic social
disadvantages" (1994: 2429). It is true that the
differences do not need to be literally visible; they need only be
socially salient. But the main point is that there is something
morally wrong with social processes that consistently but avoidably
turn such differences into relative disadvantages for the members of
salient groups, such as women or racial or religious groups. A
parallel is thereby established with direct discrimination, in which
there is something morally wrong with a practical-reasoning process
that treats sex, race, or religion as grounds for treating persons as
having a degraded or diminished moral status.




With the non-structural form of indirect discrimination, the parallel
to the wrong of direct discrimination is even stronger, because the
morally flawed process does occur at the retail
level. In *Griggs*, the company's decision to use certain
exams to determine promotions contributed to the unjust disadvantages
suffered by blacks from structural and direct discrimination. Yet,
the use of the exams was apparently not necessary to determine who
could best perform the jobs in question or to meet any other
legitimate purpose of the business. It is plausible to say, then, that
the company's decision process wrongly counted for nothing the
promotion policy's contribution to the perpetuation and even
exacerbation of unjust disadvantages from which blacks already
suffered. This process-based wrong is at the level of a specific
agent, albeit a collective agent. The difference with direct
discrimination is that it is a moral failure of omission, i.e.,
failing to take appropriate account of the impact of the promotion
policy on blacks, rather than a failure of commission, such as
deliberately excluding blacks from better-paying positions. In either
case, though, an agent has engaged in a morally flawed process of
practical reasoning in which the flaw concerns the role that
considerations of salient group membership play. 




There is a case to be made, then, that the wrongs of indirect
discrimination, structural and non-structural, are importantly
parallel to those of direct discrimination. The case will look less
convincing to Eidelson (2015: 28-30) and others who think of
(moralized) discrimination as fundamentally a retail-level wrong with
no necessary connection to socially-salient groups. For those
thinkers, it might be an injustice if the basic structure of a society
operates so that certain socially-salient groups lack equality of
opportunity, but the injustice is not necessarily a matter of
discrimination. Yet, for thinkers who would contend that the value of
the idea of discrimination derives from the fact that it can pick out
systemic wrongs linked in a certain way to socially-salient groups,
then direct and indirect discrimination represent distinct but
parallel versions of the same type of wrong, and the term
'indirect discrimination' is not simply "a piece of
legal jargon" (Eidelson 2015: 19) but a valuable term in our
moral lexicon. 


## 5. Which Groups Count?




According to the account on offer in this entry, discrimination
wrongfully imposes relative disadvantages or deprivations on persons
based on their membership in some salient social group. But which
salient groups count for the purpose of determining whether an act is
an act of discrimination? This question is at the heart of many heated
political and legal disputes, such as the controversies over the
rights of gays and trans persons. The question is also central to a
matter that is less politically prominent than such disputes but which
has important political and philosophical implications. The question
is whether or not the members of socially dominant groups can, in
principle, be victims of discrimination. It is sometimes said that, in
the United States and other Western countries, whites cannot really be
discriminated against on account of their race, because whites are the
socially dominant racial group whose members are systematically
advantaged by their being white. Thus, in his account of racial
discrimination, Scanlon acknowledges that his view entails that, in
the U.S., at least, whites can discriminate against blacks but not
vice-versa. He holds that discrimination is "unidirectional,
[applying] only to actions that disadvantage members of a group that
has been subject to widespread denigrations and exclusion." This
implication derives from his claim that it is "crucial to racial
discrimination ... that the prejudicial judgments it involves are
not just the idiosyncratic attitudes of a particular agent but are
widely shared in the society in question and commonly expressed and
acted on in ways that have serious consequences" (2008:
73-74). The idea that discrimination is unidirectional is also
implied by Fiss's understanding of discrimination in terms of
"the perpetual subordination" of "specially
disadvantaged groups ...[whose] political power is severely
circumscribed" (1976: 154-155).



Although is it undeniable that the members of socially dominant groups
typically enjoy a host of unfair advantages, it might be a mistake to
hold that such persons cannot be victims of discrimination. Belief in
the moral inferiority of the members of other racial groups is not
exclusive to dominant groups. Although he subsequently repudiated the
view, Malcolm X famously regarded whites as a race of devils, and the
belief was not some idiosyncrasy of his but rather a doctrine of the
Nation of Islam. Moreover, subordinate group members are sometimes in
position to deny members of a dominant group employment or other
valuable opportunities. When such opportunities are denied based on a
belief in the moral inferiority of the dominant group, it would seem
that the dominant group members have been discriminated against.




Scanlon and others might argue that the unidirectional view fits
better than a bidirectional one with the main reason for having a
concept of discrimination, viz., to pick out systemic injustices
linked to membership in a socially salient group. The discriminatory
actions of dominant group members typically combine to create such
injustices, while actions of subordinate group members wrongly
disfavoring on the basis of prejudiced attitudes persons in the
dominant group fail to combine in that way.




However, history shows that there are certain kinds of social
identities on whose basis persons have often been condemned as moral
inferiors and victimized by serious systemic injustice. Those
identities are tied to race, religion, race, nationality, ethnicity,
and sexual orientation, among other social categories incorporated
into reasonable antidiscrimination principles. Wrongs done to persons
in a dominant group on the ground that their group consists of morally
inferior beings is not the same as the discriminatory wrongs that
combine to create serious systemic injustice, but there is more than a
passing resemblance between the two sets of wrongs. And shifts in the
relative power positions of groups in a society can readily transmute
wrongs against a dominant group into ones against a subordinate group,
especially when the wrongs are driven by beliefs about groups moral
inferiority/superiority. Perhaps, then, we should say that the central
cases of discrimination are ones perpetrated against subordinate group
members but that dominant groups members can also be discriminated
against, even though wrongs of the latter sort do not typically
combine to form systemic injustices at the broad social level.



Perhaps the most heated of contemporary debates over the question of
which social groups count for purposes of determining whether or not
an act is an act of discrimination are those concerning sexual
orientation and gender presentation. Many persons hold the view that
it is discrimination whenever LGBTQ persons are denied the same set of
legal rights and powers that heterosexual and cis-gender persons have,
but others reject such a view. Philosophers and political theorists
can be found on both sides of this divide, although the predominant
view among such thinkers is that it *is* discriminatory to deny
LGBTQ persons the same legal rights and powers that others enjoy
(Macedo 1996; Corvino 2017; Mikkola 2018; Brief of Philosophy
Professors 2019, and, dissenting, Finnis 1997 and Anderson and Girgis
2017). These debates are ultimately ones of moral principle, resting
on the question of whether government wrongs LGBTQ persons if it
denies them any such rights or powers. The concept of discrimination
cannot, by itself, settle the question, because the concept only tells
us that it is properly applied to the imposition of wrongful
disadvantages on account of salient group membership. The concept does
not specify whether it is wrongful to impose disadvantages on persons
on account of their sexual orientation, gender presentation, or any
other particular social category. Substantive moral reasoning is
needed to address the matter (see section 8 below).


## 6. What Good is the Concept of Discrimination?




The concept of discrimination picks out a kind of moral wrong that is
a function of the salient social group membership of the person
wronged: persons are treated as though they had diminished or degraded
moral status on account of their group membership, or they are,
because of their group membership and the relative disadvantages that
they suffer due to that membership, made vulnerable to domination and
oppression. But why have such a concept? Why not simply have the
concepts of domination, oppression, and degrading treatment,
abstracting from whether or not the reasons for such wrongs involve
group membership?




Until the middle of the 19th century, critical moral
reflection and discussion proceeded largely without the concept of
discrimination. But over the course of the first half of the 20th
century, moral reflection became increasingly sensitive to the fact
that many, even most, of the large-scale injustices in history had a
group-based structure: certain members of society were identified by
others as belonging to a particular salient group; the group members
were consistently denigrated and demeaned by the rest of society and
by its official organs; and many serious relative disadvantages
connected to this denigration and demeaning, such as material
deprivation and extreme restrictions on liberty, were imposed on the
members of the denigrated group. It is this historical reality,
apparently deeply rooted in human social life and in the tendency of
humans to form in-groups and out-groups, that gives the concept of
discrimination its point and its usefulness. The concept highlights
the group-structure of those unjust deprivations and
restrictions. 




At the same time, the group structure of these injustices does not
mean that the group *as such* is the party that is wronged;
rather, the wrongs are ultimately wrongs to the individual persons
making up the group. Accordingly, the concept of discrimination has
become a useful tool for representing many serious wrongs, while
avoiding the implication that these wrongs are ultimately done to the
groups as such.




However, this understanding of the significance of the concept of
discrimination is challenged by Young, who claims that the concept is
inadequate for capturing group-based wrongs. She argues that the
concept "tends to present the injustices groups suffer as
aberrant, the exception rather than the rule." Accordingly, she
contends that "[i]f one focuses on discrimination as the primary
wrong that groups suffer, then the more profound wrongs of
exploitation, marginalization, powerlessness, cultural imperialism,
and violence that we still suffer go undiscussed and
unaddressed." (1990: 196-97)



Nonetheless, *contra* Young's understanding,
discrimination against the members of a group can be, and often is,
systemic. The reason is that wrongs against individuals on account of
their group membership, especially when perpetrated by members of
dominant groups, are often not aberrant but form broad social
patterns. Accordingly, the idea of discrimination can capture the
systemic wrongs to which Young refers, while preserving the key moral
thought that the wrongs are done to individuals. Thus, discrimination
typically involves exploitation, marginalization, powerlessness and so
on, where those wrongs are perpetrated against individuals and, at the
same time, track salient social categories.




Yet, Young is right insofar as she is claiming that systemic wrongs
can persist even as direct discrimination recedes: indirect
discrimination can, as we have seen, amplify and perpetuate the
wrongful harms of diminishing direct discrimination. Additionally,
Young correctly suggests that the idea of discrimination is too weak
to adequately capture certain sorts of extreme systemic maltreatment
and abuse. When disadvantageous treatment exceeds a certain level of
severity, it is no longer suitable *simply* to speak of
discrimination. Enslavement and genocide are forms of wrongful
discrimination, but because of the extremity of the mistreatment they
involve, it would be morally obtuse to characterize them as
discrimination and leave the matter at that. Clear-headed moral
thinking demands that their extremity be registered in how they are
characterized, and the idea of discrimination is not, by itself,
equipped for the task. Accordingly, the invention of the term
'genocide' by Raphael Lemkin (1944 [1973: 79]) and the
opprobrium that later attached to it were important steps forward in
understanding the distinctions among the different ways in which
humans abuse one another on the basis of the salient groups to which
they belong.


## 7. Intersectionality




Kimberle Crenshaw (1998 [1989]) introduced the idea of
intersectionality in her account of the distinctive form of
discrimination faced by black women. Intersectionality refers to the
fact that one and the same person can belong to several distinct
groups, each of whose members are victimized by widespread
discrimination. This overlapping membership can generate experiences
of discrimination that are very different from those of persons who
belong to just one, or the other, of the groups. Thus, Crenshaw
argues that "any analysis that does not take intersectionality
into account cannot sufficiently address the particular manner in
which Black women are subordinated" (1998: 315).




Crenshaw's idea of intersectionality applies beyond race and
gender to cover any social groups against which discrimination is
directed: discrimination is inflected in different ways depending
on the particular combination of social groups to which those persons
discriminated against belong. And one implication of
intersectionality is that the disadvantages suffered by some persons
who are discriminated *against* on account of belonging to a
certain group might be offset, partially or fully, by advantages those
same persons gain by being discriminated *in favor of* due to
their belonging to other groups. As Crenshaw notes, women who are
wealthy and white are "race- and class-privileged," even as
they are disadvantaged by their gender (1998: 314).




The idea of intersectionality threatens to destabilize the concept of
discrimination. The idea highlights what is problematic about any
account of discrimination that abstracts from how different salient
identities converge to shape the experiences of persons. But, taken to
the hilt, the idea of intersectionality might appear to undermine any
feasible account of discrimination. Reflection on Crenshaw's own
intersectional account illustrates the point: she examines the
intersection of race and gender but abstracts from other salient
social identities, such as disability status, sexual orientation, and
religion. Any of those additional identities can and do converge with
race and gender to form distinctive experiences of discrimination, and
so abstracting from those identities seems problematic from the
perspective that the idea of intersectionality opens to us. Yet, no
feasible treatment can take into account all of those identities and
the many more socially salient identities that persons have in
contemporary societies.




Nonetheless, judgments about discrimination can and do reveal genuine
wrongs that persons suffer due to their salient group membership and
expose actual patterns of disadvantage and deprivation that amount to
systemic injustices against the members of certain salient
groups. It is not necessary to take account of everything
relevant to a phenomenon in order to understand and represent important
aspects of it. Thus, notwithstanding the complications introduced
by intersectionality, judgments about direct and indirect
discrimination can tell us something important about who is wrongfully
disfavored, and who is wrongfully favored, by the actions of individual
and collective agents and by the rules of society's major
institutions.


## 8. Religious Liberty and Antidiscrimination Laws



Like the right against discrimination, the right of religious liberty
is enshrined in many domestic and international legal documents. Yet,
the two rights often seem to be in conflict with each other. For
claims of religious liberty are frequently made by persons who wish to
engage in activities that appear to amount to discrimination. Of
particular importance are cases in which religious institutions and
religiously-motivated individuals claim to be exempt from the
requirements of antidiscrimination laws.


 

Claims of religious exemption to antidiscrimination laws have recently
become the center of political and legal controversy in the U.S. as a
result of the *Obergefell* case, in which the Supreme Court
found a constitutional right to same-sex marriage. However, questions
regarding the legal and moral validity of religious exemptions to such
laws extend well beyond the issue of same-sex marriage. Moreover,
many liberal thinkers who support antidiscrimination laws balk at the
idea that the laws ought to be applied willy-nilly to all religious
institutions and religiously-motivated persons (Barry 2001:
174-76; Eisgruber and Sager 2007: 65; Greenawalt 1998: 118;
Nussbaum 1999: 114; Galston 2002: 111; Laborde 2017: 175-90).



In the *Hosanna-Tabor* case (2012), the U.S. Supreme Court
unanimously held that, under the Constitution, there was a
"ministerial exception" immunizing religious organizations
from lawsuits brought against them by employees claiming that they had
been illegally discriminated against by the organization. The
exception applies in the paradigmatic case to employees who perform
religious functions, such as ministers and priests, but the Court
in *Hosanna-Tabor* ruled that the exception also applied in the
case of a church employee whose job was the teaching of secular
subjects. The employee had brought her lawsuit under a statute
prohibiting employment discrimination on the basis of disability. The
Court held that the church was immune to the suit. 




Chambers rejects the ministerial exception, even when it is limited to
employees who perform spiritual functions. Accordingly, she argues
that the Roman Catholic Church should be legally prohibited, on the
ground of "the fundamental value of gender equality"
(2008: 141), from ordaining only men. She points to the harms
suffered by women who wish to become priests but also the damage done
to children who are taught by their Church that "women are not
fit to lead their fellow worshippers" (141). And Chambers
contends that "gender equality is ... of sufficient importance
to merit [legal] intervention" (144) in a religious
organization's choice of spiritual leaders.



By contrast, Laborde contends that "the government cannot
[legitimately] force the Roman Catholic Church to ordain female
clergy, as long as the established doctrine of the church is that only
men can be priests" (2017: 180). She argues that, if a certain
group is a voluntary association "that individuals join to
pursue a conception of the good that is central to their
identity," then the group has a valid claim to "some
immunity from the reach of antidiscrimination legislation"
(174). Such immunity enables the members "to live with
integrity," i.e., to live in accordance with "their deep
commitments and beliefs" (174). Laborde adds that any group
claiming an exemption from antidiscrimination law can be legitimately
required to openly profess the discriminatory doctrine that is the
basis for its claim. 



At the same time, Laborde rejects the scope of the ministerial
exception as presented in *Hosanna-Tabor*. She contends that
the Court's ruling grants religious groups "an exorbitant
right" (177) that exceeds their valid moral claim to choose
their own leaders and members. *Contra* the ruling, Laborde
does not think that the claim holds against the teachers of secular
subjects at church schools or any other employees whose jobs do not
consist in religious work. Laborde agrees with the Court that the
secular judiciary should not address theological questions, but she
rejects the Court's view that it is beyond the jurisdiction of
the judiciary to examine whether a proffered non-discriminatory
theological reason for an employment decision is merely a pretext for
some hidden discriminatory motive.



Watson and Hartley also reject Chamber's view that the Catholic
Church should be legally forced to ordain women, arguing that her view
does not hold for a pluralist society in which a church that refuses
to ordain women is "one among many" (2018: 123), and
"varied views about sex and gender" (124) are held across
the society's religious institutions. Watson and Hartley write
that the doctrine of the male-only priesthood "is not benign
when it comes to the status of women as free and equal citizens, but
its affect is blunted in the background culture by various other views
" (124).



Claims for religious exemptions from antidiscrimination laws have also
been made, not just by organizations, but by individuals acting on the
basis of their faith. Watson and Hartley consider a case in which a
wedding vendor refuses her services to same-sex couples, invoking her
religious belief that same-sex relationships are inherently sinful
(cf. *Masterpiece Cakeshop*: 2018). The vendor claims an
exemption from a law that prohibits discrimination on the basis of
sexual orientation. Watson and Hartley argue that such an exemption
is illegitimate, even if same-sex couples can avail themselves of the
services of other vendors in the area. The vendor's claim to an
exemption is a violation of the reciprocal respect that each citizen
owes their fellow citizens, because the vendor is asking government to
act in a way that cannot be justified to persons in same-sex
relationships as equal citizens. In the view of Watson and Hartley,
the claim to an exemption rests on the premise that same-sex
relationships are inherently inferior to heterosexual ones. They
argue that such a premise is not admissible as a valid reason for the
policies of government, which, as a matter of justice, must justify
its actions to all its citizens in a way that respects their equality.
And it is not reasonable to think that anyone in a same-sex
relationship can accept the premise of inferiority. More generally,
Watson and Hartley contend that "allowing public discrimination
on the basis of factors such as sexual orientation, sex, or race
creates a kind of second-class citizenship" (2018: 117-118),
which violates the demands of justice. 



Vallier develops an approach that is more accommodating of religious
exemptions. He writes that exemptions are justified "in a wide
array of cases," perhaps including that of "bakers [of
wedding cakes] who wish to deny service to homosexual couples on
religious grounds" (2016: 17). Vallier explains that the bakers
have a reason, from their point of view, to oppose an
antidiscrimination law that protects same-sex couples. Moreover, the
reason is both intelligible to any reasonable member of the public,
and, because the reason is rooted in "projects and principles
that possess great normative weight" (14) for the bakers, it is
sufficient from their perspective to reject the law as applied to
them. On Vallier's account, the bakers, then, merit an
exemption, as long as the exemption "does not impose significant
costs on other parties that require redress" (3). 



Vallier understands that many people will argue that the exemption
does in fact impose significant harms on same-sex couples denied
services afforded heterosexual couples, but he responds to that
argument by citing "more traditional liberal views" on
which "a denial of service will not count as harmful because, in
nearly all of the relevant cases, gay and lesbian couples have dozens
of affordable alternative venues to purchase wedding cakes"
(18). 



Watson and Hartley reject the "more traditional liberal
views"on the ground that, even if there are alternative venues
at which same-sex couples can be served, the couples are still treated
as second-class citizens, because they are denied on grounds of the
alleged inferiority of their partnership the full range of services
offered to the public. Vallier might reply that equal citizenship is
secured as long as the couples have alternative venues, but it is not
clear how convincing such a reply is, given his admission that the
actions of the bakers "can stigmatize homosexual couples through
their denial of service" (17). It would seem that the stigma
amounts to a stamp of inferiority, publicly-enacted through
exclusionary actions and affixed to persons in same-sex partnerships,
regardless of the availability to them of alternative venues. 




At the same time, Vallier might argue that his analysis of the case of
the bakers is on all fours with Watson and Hartley's account of
the male-only priesthood case, in which they contend that an exemption
is legitimate: the effect of the bakers' views on same-sex
couples, he might say, "is blunted in the background culture by
various other views" (Watson and Hartley 2018: 124) and by the
availability of alternative venues for the couples. 




However, Watson and Hartley would reply that there is an important
distinction between a church, which is a "private association,
composed of individuals who affirm, roughly, the same doctrine,"
while a bake shop is a "business of public accommodation"
(125). Yet, the question arises: If the social effects on gender
inequality of the Catholic Church's male-only priesthood can be
sufficiently blunted by the background culture, why are the parallel
effects of anti-gay bake shops on the equal citizenship of gays not
likewise blunted? 




It seems that, for Watson and Hartley, the decisive consideration in
the bake shop/wedding vendor cases is not a matter of causal effects
on society but rather of how persons are treated in the public sphere,
where citizens owe one another treatment as free and equal persons.
Watson and Hartley regard the bake shop and all other commercial
enterprises that offer goods and services to the general public as
belonging to the public sphere, and they contend that the denial of
services on grounds of sexual orientation violates what citizens owe
one another in that sphere, because such a denial constitutes treating
citizens in same-sex partnerships as inferior to citizens in
heterosexual ones. 




Vallier's view requires a different account of what citizens owe
each other. The "more traditional liberal views" to which
he refers contend that commercial enterprises should be placed in the
private sphere and that antidiscrimination laws applying to
privately-owned businesses are thereby illegitimate (see Epstein 1995
and the Civil Rights Cases 1883). But Vallier does not appear to
embrace that aspect of the traditional liberal views, instead arguing
that the disparaging treatment of gays by the bakers is made
permissible (in part) by the fact that gays can receive service at
other bake shops. The underlying premise appears to be that it is not
really a duty of citizens to treat one another as equals, even in the
public sphere. For if the bakers did have a duty to treat all of their
fellow citizens, including gays, as equals in that sphere, then the
bakers could not be relieved of the duty on the ground that there were
other citizen-bakers who did treat gays as equals. I am not morally
licensed to treat you with disrespect if only there are many others
who treat you respectfully. So the disagreement between Vallier and
Watson/Hartley seems to come down to the issue of exactly what duties
citizens owe one another, which in turn rests on the large question of
what a society of free and equal citizens would look like.


## 9. Conclusion




The concept of discrimination provides a way of thinking about a
certain kind of wrong that can be found in virtually every society and
era. The wrong involves a group-based structure that works in
combination with relative deprivations built around the structure. The
deprivations are wrongful because they treat persons as having a
degraded moral status, but also because the deprivations tend to make
members of the group in question vulnerable to domination and
oppression at the hands of those who occupy positions of relative
advantage. It is true that there has been confusion attending the
concept of discrimination, and there will long be debates about the
best way to understand and apply it. However, the concept has proved
to be a useful one for representing in thought and combating in action
a kind of wrong that is deeply entrenched in human social
relations.