Dissecting "discrimination"

Cambridge Quarterly of Healthcare Ethics

Volumn 14, Issue 4, 2005, Pages 455-463

  Halldenius, Lena ^a,b  

^a LUND UNIVERSITY   (Sweden)

^b UNIVERSITY OF CAMBRIDGE   (United Kingdom)

Author keywords

[No Author keywords available]

Indexed keywords

ANALYTICAL APPROACH; ARTICLE; BIOETHICS AND PROFESSIONAL ETHICS; CIVIL RIGHTS; HUMAN; LEGAL ASPECT; MORALITY; SOCIAL JUSTICE; SOCIAL PSYCHOLOGY; STANDARD; UNITED STATES;

ANALYTICAL APPROACH; BIOETHICS AND PROFESSIONAL ETHICS;

CIVIL RIGHTS; HUMANS; MORAL OBLIGATIONS; PREJUDICE; SOCIAL JUSTICE; UNITED STATES;

EID: 33644615024     PISSN: 09631801     EISSN: 14692147     Source Type: Journal    
DOI: 10.1017/S0963180105050619     Document Type: Review

References (12)

1. Needless to say, an action can be unfair for other reasons too. Discrimination is merely one form of unfairness.
2. Reed v. Reed 404 U.S. 71; 1971.
3. Conaghan J. Feminism and labour law: Contesting the terrain. In: Morris A, O'Donnell T, eds. Feminist Perspectives on Employment Law. London: Cavendish Publishing; 1999:31.
4. Kymlicka W. Contemporary Political Philosophy. Oxford: Oxford University Press; 1990:240.
5. Compare the distinction between locution (meaning) and illocution (force) in Austin JL. How to Do Things with Words. Oxford: Oxford University Press; 1975:94, 98, 109.
6. When John Rawls talks about "things that are irrelevant from the standpoint of justice" (A Theory of Justice. Oxford: Oxford University Press; 1971:18f), he is referring to morally irrelevant factors.
7. Narveson J. Moral Matters. Peterborough, Ontario: Broadview Press; 1993:243.
8. European Council Directive 97/80/EC on The Burden of Proof in Cases of Discrimination Based on Sex, Article 2. Official Journal of the European Community 20.1.98.
9. It might be argued, not unreasonably, that the best solution to this problem is a general public health insurance rather than regulation of the private sector. Indeed, the effects of an unregulated private insurance market may not be very serious in welfare states where there is protection available for everyone. This is a consideration applicable to that variety of the Standard View that includes a condition of nontrivial negative effects (see item a). However, the intuition feeding the Standard View still stands. If I want to top up my public health insurance with private insurance, then fairness requires that decisions taken in my case, as well as in others', should be taken on context-relevant grounds.
10. Because discrimination applies only where fairness applies, it is possible to argue against regulation on the libertarian grounds that private companies are not constrained by considerations of fairness. If so, one would, of course, have to argue against all discrimination laws that apply outside of the narrow sector that libertarianism recognizes as public.
11. See Radcliffe Richards J. The Sceptical Feminist. A Philosophical Enquiry, new ed. London: Penguin; 1994:152. See also the Swedish court case Midwife v. Örebro County Council (Labour Court, AD 1996 no. 41). The court argued that a wage difference between a female midwife and a male hospital engineer was not discrimination because the man's qualifications had wider labor-market appeal.
12. See Bradley H. Gender & Power in the Workplace. Analysing the Impact of Economic Change. Basingstoke: MacMillan; 1999:ch. 5, for how inequalities are attributed to "natural" features, like female domesticity, and therefore not discriminatory. On background inequalities making differences relevant: "the assumption [is] that where such differences [in productivity enhancing characteristics] do exist and, howsoever derived (for example, as a consequence of unequal access to educational or training opportunities, or the gendered allocation of labour in the home) they are relevant to decision making, regardless of the gendered consequences which may flow from them." See note 3, Conaghan 1999:31-2.