Defining and Differentiating Discrimination
Generic discrimination entails that X discriminates against Y in relation to Z if and only if X treats Y worse than Z. Generic discrimination implies a negative differential treatment. Whereas irrelevance discrimination means X discriminates against Y in relation to Z if and only if 1) X treats Y worse than Z, and 2) X does this for reasons that are irrelevant to how Y should be treated in relation to Z. An example is when men and women receive different wages for the same work.
Legal discrimination, on the other hand, means "X discriminates against Y in relation to Z if and only if 1) X treats Y worse than Z, and 2) 1) is against the law." For discrimination to be considered legal, a person must not only be treated worse but the action must also be illegal. The problem with this argument is that the law does not necessarily dictate morality; for example, there have been laws against homosexuality.
The moralized concept of discrimination means X discriminates against Y in relation to Z if and only if 1) X treats Y worse than Z, and 2) it is unjust for X to treat Y worse than Z. Here, discrimination is understood as inherently unjust. A weakness of this approach is that it can be difficult to judge when discrimination occurs and whether it is unjust. For example, organ donation in healthcare might discriminate against older patients in favor of younger ones.
Group discrimination involves X discriminates against Y in relation to Z if and only if 1) X treats Y worse than Z, and 2) this is because Y belongs to a different socially prominent group than Z. Group discrimination is often studied or discussed in modern political discourse. This can include discrimination based on religion, gender, ethnicity, sexuality, disability, and more. Some might also argue social class.
Direct discrimination occurs on an explicit basis. An example of direct discrimination is signage such as "we do not serve Roma people" at a bar. Indirect discrimination can be exemplified by the U.S. Supreme Court case Griggs v. Duke Power (1971). The requirement for promotion was a high school diploma and tests, and it was argued that African American employees had significantly lower chances of promotion. The argument here is that a rule indirectly affects African Americans, even if there is no explicit basis for discrimination, and not necessarily any underlying intention, but the consequences are decisive.
Indirect discrimination can be defined as: X discriminates indirectly against Y in relation to Z if and only if 1) X treats Y worse than Z, and 2) this is because Y belongs to a different socially prominent group than Z, 3) but not in a way where the explanation is that X intends to treat Y worse than Z, and 4) the worse treatment is not proportional to the benefits achieved by the discriminatory practice.
Sophia Moreau believes that direct and indirect discrimination can be described as different on the surface. Benjamin Eidelson, however, argues that describing indirect discrimination as discrimination presents a problem in clearly communicating about discrimination. Eidelson argues that discrimination should be understood as an action where an agent is sensitive to a particular trait that the discriminated person has, leading to differential treatment. In the Southern United States, for example, literacy requirements for voting were imposed. This rule affected many African Americans. The rule was formulated "neutrally," but there was no doubt about its purpose in discriminating against a specific group. Likewise, the ban on masking in Denmark, although framed as a neutral rule, appears to be motivated by an intent to impact specific individuals within a particular religious group, such as Muslims.
Not only can we speak of discrimination, but also requirements. The accommodation requirement, for instance, necessitates that it is not sufficient to refrain from treating someone worse; it is necessary to accommodate others, such as people with disabilities. This is known as the accommodation requirement. There are also many added layers to discrimination in praxis. As an example, economic theory or statistics can be instrumentalized to discriminate when there is a lack of information, but if one has information about a social group, decisions can be made based on that.
Mortgage institutions in the USA, for instance, have discriminated against African Americans, arguing that statistically as a group, they are less likely to repay their loans compared to other populations. This statistical discrimination can be said to unfairly discriminate against African American homebuyers, as quantitative datasets are instrumentalized to discriminate against people on an individual level. Statistical discrimination can be defined as: X engages in statistical discrimination against Y with respect to Z if and only if 1) X treats Y worse than Z, and 2) this is because Y belongs to a socially prominent group different from Z, and 3) the basis for 1) is X's statistical assumption that members of Y's group statistically differ in a relevant way from members of Z. Non-statistical discrimination can, on the other hand, involve discrimination without any statistical basis. For example, a person may simply choose to discriminate against people from China based on "personal taste" or beliefs.
But what makes discrimination unfair? The absence of control argument states that discrimination is unfair because and only because discrimination involves negative differential treatment based on characteristics that the discriminated person has no control over. The opportunity inequality argument states that discrimination is unfair because and only because discrimination increases inequality of opportunity between different individuals. The disrespect argument states that discrimination is unfair because and only because discrimination expresses disrespect towards the discriminated party. Moreau presents two goals: to explain what discrimination is and why it is wrong, and to give meaning to anti-discrimination legislation, explaining why anti-discrimination laws in the English-speaking world are as they are. The law provides insight into "institutionalized collective ethics." Moreau's basic idea is that when looking at the law, discrimination is treated as if the discriminator harms the discriminated person. However, Moreau points out that the legal perspective does not really address structural problems and questions of redistribution concerning discrimination. Instead, there is a strong focus on harm between two parties: the discriminator and the discriminated. Moreau defines deliberative freedom as 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.
For example, a woman in a sexist culture may find her opportunities to get a managerial position diminished because she is a woman. Conversely, a man may be affected by whether he wants to take a caregiving job in a sexist culture. Deliberative freedom can be restricted by 1) changing a person's assumptions about whether they can make a given choice, and 2) regardless of what the person believes, they actually cannot achieve a given opportunity that is available to others. Thus, not all citizens have deliberative freedom, but Moreau argues that the law should "step in" and ensure that all citizens have deliberative freedom.
Moreau formulates it as follows: In order for to have a particular deliberative freedom with respect to a certain decision, it has to be true (1) not just that I believe I can make that decision without having to worry about pressures from a certain extraneous trait, (2) but that I really am free from those pressures. It is not enough for a woman to believe that she can get a managerial position with the same opportunities as men. It must be a real social reality that the person has this deliberative freedom. However, Moreau does not have a systematic answer to which groups should be protected and why. It can also be difficult to say when discrimination occurs based on traits, and this requires a "case-by-case assessment."
Not all restrictions on deliberative freedom are discrimination. For example, Moreau would argue that autonomy to choose one’s relationships is relevant. Thus, the law should not interfere with who people choose to be friends with, as this comes at the expense of the ability to form meaningful relationships. According to Moreau's logic, it could also be argued that it is not discrimination if a family invests more money in the daughter's education versus the son’s. This is a controversial position for many, but Moreau would argue that the state should not interfere in these private matters. It is also not necessarily relevant for a Catholic charity to include everyone in their organization; here, there is a purpose-driven exclusion.
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