What Is Discrimination?

Philosophy and Public Affairs

Volumn 38, Issue 2, 2010, Pages 143-179

  Moreau, Sophia ^a  

^a UNIVERSITY OF TORONTO   (Canada)

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EID: 77954235489     PISSN: 00483915     EISSN: 10884963     Source Type: Journal    
DOI: 10.1111/j.1088-4963.2010.01181.x     Document Type: Article

References (50)

1. Some central examples of anti-discrimination legislation in the United States are Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§2000E (2003), the Age Discrimination in Employment Act of 1967, 29 U.S.C. 621-34, and the Fair Housing Act and Fair Housing Amendments Act, 42 U.S.C. §§ 3601-19. In Canada, each province has its own anti-discrimination legislation covering all of the above contexts: see, for a representative example, the Ontario Human Rights Code, R.S.O. 1990, c.H.19. The United Kingdom has recently introduced the Equality Bill (April 24, 2009), a single piece of legislation aimed at harmonizing anti-discrimination laws in the United Kingdom. When passed, it will replace the United Kingdom's current subject-specific anti-discrimination laws, such as the Sex Discrimination Act of 1975 (c.65), the Race Relations Act of 1976 (c.74), and the Disability Discrimination Act of 1995 (c.50).
2. All of the legislation cited above in note 1 also prohibits this second form of discrimination. This form of discrimination does not necessarily involve an exclusionary motive; but the countries cited in note 1 differ somewhat in the ways in which they draw the distinction between it and the kind of discrimination that does. In the United States, the distinction is between "disparate treatment," which necessarily involves an exclusionary motive, and "disparate impact," which does not, and can be proven simply by adducing statistical evidence that the rule or practice disproportionately burdens the claimant's group. In Canada and the United Kingdom, the distinction is between "direct discrimination," which may or may not involve an exclusionary motive but must involve a rule that explicitly draws a prohibited distinction, and "adverse effect discrimination" or "indirect discrimination," which involves facially neutral rules or practices that have the effect of disadvantaging some individuals based on a prohibited ground. My argument does not depend on our drawing the distinction in one of these ways rather than another. Indeed, as I shall argue later in the article, my account of discrimination implies that these distinctions are not deep. It is largely irrelevant from the standpoint of justice whether discrimination has been intentional or non-intentional, direct or indirect; although, as I shall explain, the presence of a discriminatory motive may have bearing on whether the claimant is owed additional damages for mental suffering.
3. Americans with Disabilities Act of 1990, as amended by the ADA Amendments Act of 2008, 42 U.S.C. c.126, 47 U.S.C. c.5. See also the Family and Medical Leave Act of 1993, 29 U.S.C. §§ 2601-54 (1994 & Supp. III 1997). In the United Kingdom, the Disability Discrimination Act of 1995 imposed similar accommodation requirements, note 1 above. All of the provincial human rights codes in Canada cited in note 1 impose accommodation requirements with respect to all of the grounds of discrimination. Indeed, the Canadian Supreme Court has defined discrimination in the private sector as the failure to provide reasonable accommodation to those disadvantaged by one's policies on the basis of a prohibited ground of discrimination: see British Columbia (Public Service Employee Relations Commission) v. BCGSEU, [1999] 3 S.C.R. 3 (the "Meiorin" case).
4. Those who claim that accommodation requirements impose more onerous obligations than the rest of anti-discrimination law include Samuel Issacharoff and Justin Nelson, "Discrimination with a Difference: Can Employment Discrimination Law Accommodate the Americans with Disabilities Act?" North Carolina Law Review 79 (2001): 307-58
5. Pamela Karlan and George Rutherglen, "Disabilities, Discrimination and Reasonable Accommodation," Duke Law Journal 46 (1996): 1-41
6. Mark Kelman, "Market Discrimination and Groups," Stanford Law Review 53 (2001): 833-96
7. J. H. Verkerke, "Disaggregating Antidiscrimination and Accommodation," William and Mary Law Review 44 (2003): 1385-1419
8. Some prominent legal scholars have contested this view: see the articles cited in note 7. The account of discrimination that I shall defend in this article implies that accommodation requirements are not normatively different from the rest of anti-discrimination law. I discuss this point in more detail in Section IV of the article.
9. For instance, Owen Fiss has argued that anti-discrimination law is based upon a "group-disadvantaging principle," which prohibits action that aggravates or perpetuates the already subordinate status of certain groups, such as blacks and women: "Groups and the Equal Protection Clause," Philosophy & Public Affairs 5 (1976): 107-77
10. And Cass Sunstein has defended the view that anti-discrimination law expresses an "anticaste principle," according to which we must not disadvantage or stigmatize particular groups because of a visible but yet morally irrelevant group-based characteristic: "The Anticaste Principle," Michigan Law Review 92 (1994): 2410-55
11. Robert Post, "Prejudicial Appearances: The Logic of American Anti-Discrimination Law," California Law Review 88 (2000): 1-40.
12. John Gardner has argued that they can: "Liberals and Unlawful Discrimination," Oxford Journal of Legal Studies 9 (1989): 1-22
13. "Discrimination as Injustice," Oxford Journal of Legal Studies 16 (1996): 353-67
14. Denise Reaume, "Harm and Fault in Discrimination Law: The Transition from Intentional to Adverse Effect Discrimination," Theoretical Inquiries in Law 2 (2001): 349-85.
15. Interestingly, this is a largely U.S. debate: in Canada, as I shall explain later in the article, all of anti-discrimination law is conceptualized in terms of a "duty to accommodate." In the United States, those who have argued that "accommodation requirements" do not impose obligations of any different or more onerous kind than are already imposed on us by prohibitions on indirect discrimination or disparate impact include Christine Jolls, "Accommodation Mandates," Stanford Law Review 53 (2000): 223-306
16. "AntiDiscrimination and Accommodation," Harvard Law Review 115 (2001): 642-99
17. Samuel R. Bagenstos, " 'Rational Discrimination', Accommodation and the Politics of (Disability) Civil Rights," Virginia Law Review 89 (2003): 825-923>/pg
18. Sharon Rabin-Margalioth, "Anti-Discrimination, Accommodation and Universal Mandates - Aren't They All the Same?" Berkeley Journal of Employment and Labor Law 24 (2003): 111-52
19. For those who have argued the contrary, see the authors cited in note 4.
20. I do not here take up the suggestion that there should actually be a tort of discrimination, because I take it that this question raises complex issues of institutional design that are not relevant to the more basic philosophical question of what discrimination consists in. It may be, for instance, that given that we already have human rights legislation that prohibits private sector discrimination, it would be confusing and even unjust to permit claimants also to bring tort actions for discrimination.
21. See, for such an argument, the Canadian case of Board of Governors of Seneca College of Applied Arts and Technology v. Bhadauria (1981) 124 D.L.R. (3d) 193 (S.C.C.). For discussion of whether there should be a tort of discrimination, see Amnon Reichman, "Professional Status and the Freedom to Contract: Toward a Common Law Duty of Non-Discrimination," Canadian Journal of Law and Jurisprudence 14 (2001): 79-132
22. Honorable Louis LeBel, "La protection des droits fondamentaux et la responsabilité civile," McGill Law Journal 49 (2004): 231-54.
23. For instance, the Ontario Human Rights Code allows for "compensation for injury to dignity, feelings and self-respect," R.S.O. 1990, c.H.19, ss.46(1)1.
24. As should be clear, this paragraph uses the term "accommodation" simply to refer to the fit between certain rules and practices and the needs or abilities of certain groups, and not to refer only to the subset of anti-discrimination laws that in the United States are known as "accommodation requirements."
25. See the "social model" of disability first popularized by Michael Oliver in The Politics of Disablement (London: Macmillan, 1990)
26. Michael Ashley Stein, "Disability Human Rights," California Law Review 95 (2007): 75-121
27. Anita Silvers, "Formal Justice," in Disability, Difference, Discrimination: Perspectives on Justice in Bioethics and Public Policy, ed. Anita Silvers, David Wasserman, and Mary B. Mahowald (Lanham, Md.: Rowman & Littlefield, 1998); and many of the essays in Critical Disability Theory, ed. Diane Pothier and Richard Devlin (Vancouver: University of British Columbia Press, 2006).
28. As mentioned previously, Canada prohibits these types of discrimination, but does not treat them as deeply different.
29. For examples of legislation prohibiting the first two types of discrimination, see the anti-discrimination laws cited in note 1 above. For examples of the third type of anti-discrimination law, that is, accommodation requirements, see the laws cited in note 3 above.
30. R.S.Q. C-12, c. I.1., s.10.
31. I am grateful to Seana Shiffrin for pressing this objection.
32. Many of the Canadian provincial human rights codes have explicit exceptions carved out for special interest organizations that serve the needs of a particular group identified by one of the prohibited grounds: see, for instance, s.18 of the Ontario Human Rights Code, note 1 above, and s. 41 of the British Columbia Human Rights Code, R.S.B.C. 1996, c.210.
33. Vancouver Rape Relief Society v. Nixon, 262 D.L.R. (4th) 360 (B.C.C.A.).
34. See, for instance, s.20(3) of the Ontario Human Rights Code, note 1 above.
35. How strict an interpretation of "necessary" is used here depends on the jurisdiction and sometimes on the ground of discrimination at issue. I cannot enter into a detailed discussion of these differences here; but I shall try to show below how my account might explain some of them. (Note that this defense is sometimes referred to as the "Bona Fide Occupational Qualification" defense, or BFOQ; but since "Bona Fide Requirement" is a broader term that encompasses contexts beyond the employment context, I shall use this broader term.) For one example of a provision laying out this defense, see sec. 2000E-2(e) of Title VII of the Civil Rights Act of 1964.
36. I am not claiming here that this is the only reason why a rule could constitute a BFR; I am arguing that it is one such reason, and that in such cases, there is no need to engage in any balancing of the claimant's interests against others' interests. I shall go on to consider a different kind of reason for recognizing a rule as a BFR below, one which does require us to engage in this kind of balancing exercise. There too, my claim is not that these are the only kinds of reasons for recognizing a rule, or that these are the only interests relevant in the balancing process.
37. See, for example, s. 2000E-2(k)(1)(A) of Title VII of the Civil Rights Act of 1964.
38. See the "Meiorin" case, note 3 above, and the Ontario Human Rights Code, ss. 11(1) and 11(2).
39. "English-only" workplace policies are quite common, and they have been the source of much litigation and considerable media attention in the United States. U.S. courts are divided on whether and when they amount to disparate impact discrimination, although the U.S. Equal Employment Opportunity Commission has issued a guideline explicitly prohibiting rules that require English spoken at all times. See, for two examples: EEOC v. Premier Operator Servs., Inc., 113 F. Supp. 2d 1066, 1073 (N.D. Tex. 2000), in which the court found that a rule requiring all employees to speak English at all times disproportionately burdened Latino employees; and Garcia v. Spun Steak Co., 998 F.2d 1480, 1487-89 (9th Cir. 1993), in which the court found that bilingual employees were not disproportionately burdened.
40. See the Americans with Disabilities Act, note 3 above, 12112(B)(5)A.
41. This case is based upon the many recent incidents involving Muslim taxi drivers refusing to carry passengers with guide dogs: see, for instance, "Unclean Guide Dog Banned by Muslim Driver," Report in The Daily Mail (U.K.), October 6, 2006; and "Taxi Firm Pays Blind Man after Dog Refused," Report in The National Post (Canada), August 16, 2007.
42. I owe this example to Marshall Cohen.
43. Larry Alexander, "What Makes Wrongful Discrimination Wrong?" University of Pennsylvania Law Review 149 (1992): 141-219
44. Matt Cavanagh, Against Equality of Opportunity (Oxford: Oxford University Press, 2002)
45. Gardner, "Liberals and Unlawful Discrimination"; and Richard Primus, "Equal Protection and Disparate Impact: Round Three," Harvard Law Review 117 (2003): 493-587.
46. See Gardner, "Liberals and Unlawful Discrimination."
47. See the articles cited in note 7.
48. Deborah Hellman, When Is Discrimination Wrong? (Cambridge, Mass.: Harvard University Press, 2008)
49. "The Expressive Dimension of Equal Protection," Minnesota Law Review 85 (2000): 1-70
50. Elizabeth Anderson and Richard H. Pildes, "Expressive Theories of Law: A General Restatement," University of Pennsylvania Law Review 148 (2000): 1503-75.