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Routledge Encyclopedia of Philosophy, E. Craig ed., Version 1.0, London and New York: Routledge (1998)

DiscriminationJAMES W. NICKEL

A principle forbidding discrimination is widely used to criticize and prohibit actions and policies that disadvantage racial, ethnic and religious groups, women and homosexuals. Discriminatory actions often rely on unfavourable group stereotypes and the belief that members of certain groups are not worthy of equal treatment. A prohibition of discrimination applies to the distribution of important benefits such as education and jobs, and says that people are not to be awarded or denied such benefits on grounds of characteristics such as race, ethnicity, religion or gender. Attempts have been made to expand this principle to cover institutional discrimination. Discrimination is morally wrong because its premise that one group is less worthy than another is insulting to its victims, because it harms its victims by reducing their self-esteem and opportunities, and because it is unfair.

1 The anti-discrimination principle

Prejudice and ethnic hostility, and the discrimination and other forms of intolerance that they generate, are found in all parts of the world. Prejudice typically involves a negative attitude towards a group based on a belief that members of the group are undeserving of equal treatment because they are somehow inferior or morally deficient. Prejudice often relies on stereotypes - simplified and negatively slanted conceptions of the typical characteristics and activities of members of the group. Racism is one species of prejudice; other species include bigotry, sexism, extreme nationalism and homophobia.

The moral norm that makes discrimination wrong can be formulated as follows:

The anti-discrimination principle. When distributing educational opportunities and jobs [list of items], never exclude whole groups of persons or choose one person over another on grounds of race, ethnicity, religion, or race [list of excluded characteristics] unless the use of these characteristics in particular circumstances is demonstrably legitimate and important.

This anti-discrimination norm is presupposed by most condemnations of discrimination, and is found in most civil rights legislation (Brest 1976). It rejects ways of thinking that assume the inferiority or depravity of certain groups, and forbids some of the most important ways of acting and deliberating that flow from such assumptions. Because it is concerned with the grounds on which decisions are made (and thus with people’s reasons and intentions), proving that discrimination has occurred is often difficult.

The anti-discrimination principle forbids those distributing certain benefits and burdens to ‘choose … on the basis of …’ certain excluded characteristics. This regulates the process of selection, but only indirectly regulates its outcomes. It does not forbid an employer to deny employment to a Muslim, if that is the

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outcome of a non-discriminatory selection process, but it blocks the employer from using an applicant’s Muslim beliefs as a reason in deciding whether or not to employ the applicant. Formal or informal statements of qualifications cannot mention religion or other excluded characteristics. The anti-discrimination principle says how not to allocate certain important benefits, but it does not say how they should be allocated. It does not, for example, prescribe that these benefits should be allocated in accordance with competency or qualifications. Goldman (1979) has defended the additional principle that employment and selection for advanced education should always be on the basis of competence.

The formulation of the anti-discrimination principle given above is too narrow. The two bracketed clauses (the ‘list of items’ and the ‘list of excluded characteristics’) mark slots that need to be filled in more adequately. The list of items could be expanded by listing, along with educational opportunities and jobs, matters such as housing, public accommodation, legal rights, opportunities for political participation, public assistance and military service. Perhaps the underlying idea here is to focus on benefits and burdens that have a major impact on people’s prospects, long-term welfare and self-respect, and whose distribution can be regulated without deeply invading people’s liberties. The anti-discrimination principle does not apply to the distribution of all benefits and burdens. It does not forbid, for example, choosing someone who shares one’s religion as a friend, or using gender as a factor in choosing a spouse.

The list of excluded characteristics could be expanded beyond race, ethnicity, religion and gender to include national origin, political beliefs, being a non-citizen, sexual orientation, income and age. It is sometimes suggested that an anti-discrimination principle should exclude reliance on characteristics that are ‘irrelevant’ or ‘arbitrary’. What makes this plausible is the fact that one’s religious beliefs, for example, have little bearing on one’s qualifications to work in a construction company. Choosing people for construction work on the basis of their religion just seems irrational. But if the owners of a large construction company seek to employ only fellow Christians because they think they are more likely to be honest and hard-working, or because they want to create a certain religious atmosphere within the company, they cannot be faulted for making arbitrary choices or using irrelevant criteria. The problem is rather that these selection procedures are inappropriate for a large company in a diverse country because they are unfair to non-Christians.

2 Institutional discrimination

The anti-discrimination principle is narrow in its scope and the occurrence of discrimination is often hard to prove. Thus it is unlikely that widespread acceptance and legal enforcement of the principle will quickly stop discrimination or eliminate the consequences of past discrimination. Affirmative action programmes, which go beyond anti-discrimination, are intended to do these things more rapidly (see Affirmative action). But many have attempted to expand the scope of the anti-discrimination principle to cover institutional discrimination (Banton 1991; Ezorsky 1991). There are at

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least five sorts of phenomena that a norm addressing institutional discrimination might cover.

(1) Unconscious discrimination. To engage in discriminatory behaviour one does not have to be aware that one is doing so. One can discriminate by relying on stereotypes one is unaware of or by unconsciously following old customs. This sort of discrimination can be brought under the anti-discrimination principle by defining ‘choose … on grounds of …’ in a broad enough way to cover decisions that unconsciously rely on stereotypes and discriminatory customs.

(2) Statistical discrimination. Characteristics that are relevant to selection for a position often are statistically correlated to some degree with characteristics such as race, ethnicity and gender. An employer may refuse, for example, to employ a woman in a warehouse because they believe correctly that most women are unable to lift the heavy boxes stored in the warehouse. Although the likelihood that one can do a certain kind of job is generally an appropriate basis for selection, it is discriminatory to exclude all women from jobs requiring heavy lifting on the grounds that most women are unable to do it. Lifting abilities are easy to test on an individual basis, and hence it is fairer to require that people be selected as individuals rather than on the basis of some class to which they belong. Statistical discrimination can be excluded by the anti-discrimination principle if we specify that ‘choose … on the basis of …’ covers and thus forbids using the excluded characteristics as statistical indicators of the presence or absence of qualifications.

(3) Reaction qualifications. When the customers of a business are prejudiced it may be rational for the business to conform to those prejudices in choosing its employees. It is not in general wrong to select people for positions on the basis of the preferences of the people they will serve. If customers like travel agents with pleasant personalities there is nothing wrong with making the possession of such a personality a job qualification for travel agents. Thus we cannot say that it is arbitrary to select people on the basis of reaction qualifications, but in some contexts it is discriminatory to do so. Wertheimer (1983) argues that relying on reaction qualifications based on race and gender often leads to injustices. It may be possible to bring reaction qualifications under the anti-discrimination principle by extending ‘choose … on the grounds of …’ to cover choosing on the basis of one’s customers’ prejudices.

(4) Personal connections. Ezorsky (1991) argues that finding new employees by word-of-mouth advertising within the social networks of one’s present employees is discriminatory towards blacks in contexts where blacks have been excluded from employment by past discrimination and where residential segregation persists. Although this method of recruiting employees might be unobjectionable in some circumstances, it is discriminatory in societies with a history of racism. To prohibit this sort of discrimination we probably have to go beyond the negative anti-discrimination principle to a supplementary requirement that jobs be advertised publicly and that employment through personal connections be avoided.

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(5) Legacy of discrimination. Allocative decisions can transmit a legacy of discrimination even though they themselves are not discriminatory in the standard sense. Black people growing up in the southern states of the USA in the 1950s were likely to have had educational opportunities inferior to those of whites and to have faced substantial discrimination in seeking employment when they left school. Thirty years later, when such a person sought a job from a company that had fully non-discriminatory hiring policies, they could well have had a less good record of work experience than a white who was not disadvantaged early on by discrimination in education and employment. Choosing a white person because of better work experience in such a case would not be directly discriminatory, but it would transmit the legacy of discrimination. How to address this sort of case seems more a matter of affirmative action than anti-discrimination.

3 What makes discrimination wrong?

Consider a clear violation of the anti-discrimination principle, such as an employer prejudicially refusing to hire or even consider blacks for work in a restaurant. What is wrong with such an action? First, it is insulting to blacks because of its underlying premise that some racial groups are less worthy than others. Second, it is harmful to blacks because it often reduces self-esteem and produces a sense of inferiority, and because it deprives people of opportunities that would have allowed them to live better lives and make greater contributions to society. Discrimination in education and employment will tend to reduce a group’s aspirations and productivity by reducing the payoff of investments in education and work experience. Third, discrimination is often irrational. It frequently relies on unjustified beliefs and stereotypes, and selects people on irrelevant and arbitrary grounds. Although it is not in general morally wrong to act irrationally, irrational actions that distribute important goods in ways that harm and disadvantage other people may indeed be wrong because they are unfair. Finally, the most important reason why discrimination is wrong is that it is unfair. Victims of racial discrimination in employment, for example, can legitimately complain that as full members of society who have done their part in preparing to participate in and contribute to society it is unfair for them to be handicapped in areas such as education, employment and politics by discrimination flowing from other people’s prejudices.See also: Linguistic discrimination

References and further reading

Alexander, L. (1992) ‘What Makes Wrongful Discrimination Wrong?: Biases, Preferences, Stereotypes, and Proxies’, University of Pennsylvania Law Review 141 (November): 149-219.(A clear but complicated exploration of the morality of various types of discriminatory preferences.)

Banton, M. (1992) ‘The Nature and Causes of Racism and Racial Discrimination’, International Sociology 7 (1): 69-84.(Contrasts discrimination, which is ‘universal and normal’, with racism, which is ‘historically and

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geographically specific’. Also discusses the United Nations 1965 Convention on the Elimination of all Forms of Racial Discrimination.)

Boxill, B. (1984) Blacks and Social Justice, Totowa, NJ: Rowman & Allenheld (Chapter one criticizes views that equate non-discrimination with colour blindness.)

Brest, P. (1976) ‘Foreward: In Defense of the Anti-discrimination Principle’, Harvard Law Review 90 (2): 1.(An attempt to define, limit and defend a principle prohibiting discrimination based on race.)

Ezorsky, G. (1991) Racism and Justice: The Case for Affirmative Action, Ithaca, NY: Cornell University Press. (Chapter one contains a good discussion of ‘overt and institutional racism’.)

Goldman, A. (1979) Justice and Reverse Discrimination, Princeton, NJ: Princeton University Press.(Chapter two constructs a philosophical defence of awarding positions by competence.)

King, M. (1969) ‘Letter from Birmingham City Jail’, in H. Bedau (ed.) Civil Disobedience, New York: Pegasus. (The late civil rights leader’s indictment of racism and racial discrimination.)

Thomas, L. (1980) ‘Sexism and Racism: Some Conceptual Differences’, Ethics 90 (2): 239-50.(Argues that racist attitudes are ‘relatively easier to give up’ than sexist ones.)

Wertheimer, A. (1983) ‘Jobs, Qualifications, and Preferences’, Ethics 94 (2): 99-112.(A thorough discussion of qualifications based on client preferences.)