This essay was the winner in the Undergraduate Category of the Oxford Uehiro Prize in Practical Ethics 2017

Written by University of Oxford student, Paul de Font-Reaulx

What makes discrimination wrong?

Most of us intuitively take discrimination based on gender or ethnicity to be impermissible because we have strong rights to be treated on the basis of merit and capacity rather than e.g. ethnicity or gender. I argue that, despite how this suggestion seems intuitive to most of us with a humanist perspective, it is indefensible. I show that well-informed discrimination can sometimes be permissible, and even morally required, meaning we cannot have absolute rights not to be discriminated against. In the last part I suggest an alternative account, arguing that acts of discrimination are wrong because they violate individuals’ weak right to be treated fairly and create negative externalities which – analogously to pollution – there is a collective responsibility to minimize. These results are counterintuitive, and require further attention.

1. What is Discrimination?

I take discrimination to be to treat someone very differently based on an irrelevant trait. A trait is relevant if and only if it by itself provides reasons for different treatment in some instance, such as constituting a difference in merit or capacity. Otherwise it is irrelevant. For example, limiting someone’s right to vote on the basis of age is not an instance of discrimination, because age is a relevant trait for participation in democracy. Doing the same on the basis of ethnicity is however, because ethnicity is not a relevant trait[1].

Discrimination based on bigotry such as racism is often indefensible simply because it rests on ungrounded beliefs about the relevance of traits such as ethnicity. Discrimination can be wrong even if it does not suffer from epistemic problems however. For this reason I consider what I call ‘epistemically grounded’ discrimination. By this I mean when different treatment is based on an irrelevant trait, but holding this trait makes it more likely that the same person holds another relevant trait. For example, ethnicity is not a relevant trait for performing a normal job. Criminality is however, and for various reasons (e.g. structural oppression and alienation) ethnicity can statistically correlate with criminality. In such cases different treatment based on ethnicity would constitute epistemically grounded discrimination.

2. Is Discrimination Impermissible?

I will now progress to consider what could make even epistemically grounded discrimination wrong. Here is a suggestion: We have the right to be judged based on individual merit and capacity rather than generalizations over traits we cannot control. Specifically, all individuals have an absolute right not to be judged or treated differently based on traits over which they have little control, unless those traits themselves constitute a relevant difference in capacity (e.g. the boxing case). Furthermore, it is impermissible to violate someone’s absolute rights. Discriminating based on e.g. ethnicity or gender is to violate someone’s rights in this way. For this reason it is impermissible. Let us call this the Strong Rights Account.

I believe the Strong Rights Account is highly intuitive, and corresponds well to a humanist conception of the ethics of discrimination which most of us share. This makes it worth studying in more detail. Let us test the suggestion by considering the following two examples:

Hiring: Harold is considering applicants for a position at his company. He knows that being a member of an ethnic minority strongly correlates with frequency of crime. Because of this he chooses not to consider applicants belonging to an ethnic minority.

Au Pair: Cassandra is considering hiring an au pair to take care of her children. She knows that being white and male strongly correlates with being inept at taking care of children. Because of this she chooses not to consider white male candidates.

These are both instances of epistemically grounded discrimination, and impermissible by the above suggestion. In their respective examples Harold and Cassandra both treat some group of individuals very differently based on an irrelevant trait over which they have little control. They do however have good reason to believe that these traits correlate with a relevant trait (criminality and child-caring respectively), and that therefore – ceteris paribus – someone with the irrelevant trait (e.g. being a white male) is more likely to possess the relevant trait (e.g. being inept with children) than someone lacking the irrelevant trait.

Most of us believe that Harold is acting impermissibly, and plausibly for the reasons above. He is treating individuals in a way which they have a right not to be treated by discriminating based on ethnicity. Many of us do not however find Cassandra’s action impermissible, and feel inclined to be more lenient in her case. In fact many ads for au pairs specify that they only consider females, and their owners are rarely considered to be violating absolute rights. This would suggest that our suggestion is too inclusive, making too many acts of discrimination impermissible. In order to still be able to consider Harold’s actions impermissible however, we need to find some further necessary condition which only rules out Hiring.

Here is a suggestion: Discrimination is only impermissible when the irrelevant trait (e.g. being a white male) constitutes the membership of an exposed group. By ‘exposed’ I mean a group which is generally considered to be at the receiving end of structural oppression, such as ethnic minorities or women. Cassandra’s discrimination is directed at white males, which are not an exposed group, while as Harold’s actions are directed at an ethnic minority, which is an exposed group. Therefore Harold’s discrimination is impermissible, but not Cassandra’s.

This condition captures a further intuition, but is insufficient. This is because sometimes it seems permissible, and even morally required, to discriminate even when the object of discrimination is a member of an exposed group. Consider the following example:

Alley: In order to get to the other side of town one needs to pass through either alley A or alley B. A tourist, who is internationally famous for spreading money around everywhere he goes, needs to get to the other side of town, and asks Pasha how to get there. Pasha knows only the following: (a) Passing through A is slightly quicker than B, (b) A is mainly populated with members of an ethnic minority and B by non-minorities and (c) being a member of the ethnic minority statistically correlates strongly with high propensity for violent crime, while there is no such correlation for non-minorities. The tourist will only understand a simple direction to A or B, and will then trust Pasha’s recommendation blindly.

In this case it seems to me that Pasha is not only permitted to direct the tourist to B despite A being the quicker path, but is also morally required to do so. The tourist is left at Pasha’s mercy, and directing him to A would likely put him at great risk. Doing so would however imply discriminating against the individuals in A which are members of an exposed group, because Pasha would treat them very differently by recommending the tourist to avoid them only on the basis of their ethnicity, thereby robbing them of the chance to receive some of his significant spending. If this is correct, it cannot be impermissible or even always morally wrong to discriminate on the basis of irrelevant traits which constitute membership of an exposed group. If correct this implies that the Strong Rights Account cannot be correct, and that discrimination based on e.g. ethnicity is sometimes permissible.

3. Fairness and Externalities

We might find it surprising that we cannot defend the suggestion that discrimination is impermissible. This does not mean that epistemically grounded discrimination is always permissible however; most often it is not. To determine when this is the case we need an account of what makes discrimination wrong in those cases when it is wrong. Below I sketch a short suggestion, arguing that the wrongness of discrimination comes from two independent and defeasible effects.

Here is my suggestion, which I elaborate on below:

Fairness: Discriminating against an individual is unfair to that individual, and individuals have a weak right to be treated fairly.

Negative Externalities: Discriminating against an individual produces negative externalities for individuals sharing the trait which has been the grounds for discrimination.

Fairness is being treated in proportion to one’s desert and capacity. When someone is not selected for a job because of their ethnicity, this is unfair to them, because they have ceteris paribus equal desert and capacity to perform the job to other applicants. For this reason both Harold and Cassandra are acting unfairly. To be treated fairly is however not an absolute right, and sometimes we are permitted to treat people unfairly when it is required for overriding reasons. An example of this is might be collective punishment of a platoon for the mistake of an individual, when it is required for discipline. When there are no such overriding considerations it is wrong to treat individuals unfairly. This effect varies only with desert and capacity, and not with e.g. whether the objects of discriminations are members of an exposed group.

When a group is discriminated against on the basis of being a member of that group, this can produce negative externalities for that group by reducing opportunities or solidifying alienation. For example, when Harold systematically disregards an exposed group, he is reducing its members’ chances for jobs relative to non-minorities, which constitutes a harm to members of that group. In other words, the harm of the act of discrimination can extend beyond the target of discrimination to others who share her traits. The harm constituting these negative externalities varies with the objects of discrimination, and is more significant for e.g. exposed groups than white males. This is why Harold’s actions are wrong while Cassandra’s are plausibly permissible, because discriminating against an ethnic minority produces more harm than discriminating against white males.

Why are Fairness and Negative Externalities the criteria that should be posited to capture the ethics of discrimination, rather than a more parsimonious suggestion? Firstly, there is a strong sense in which discrimination constitutes a violation of someone’s rights, and I believe unfairness is the most intuitive concept to capture this violation. Secondly the wrongness of discrimination seems to vary with its objects (e.g. it’s worse to discriminate against ethnic minorities than while males) and I find no other way to account for this variation but in the effects produced for members of the discriminated group. For these reasons a combination of (1) and (2) is the most parsimonious way to account for our intuitions regarding discrimination. There are however other implications:

Firstly, the nature of externalities is such that it affects large groups, and they are often produced collectively by many individuals (e.g. pollution). The responsibility not to produce such externalities is collective, meaning that the wrongness of discrimination is largely made up of a failure to live up to one’s part in the collective responsibility not to e.g. perpetuate alienating stereotypes. Specifically, any further wrongness to discriminating against an exposed group relative to white males is fully constituted by one’s marginal contribution to negative externalities for that group. This is counterintuitive, because discrimination is intuitively thought of wronging someone, not as – like driving an SUV – contributing to the production of negative effects for a group.

Secondly, like with pollution there can sometimes be overriding reasons to disregard this collective responsibility when the marginal harm produced is significantly outweighed by the harm of alternative actions. This is what happens in Alley, where there the risk to the tourist outweighs the harm caused to the individuals in alley A. Because both Fairness and Negative Externalities are then defeasible, this means that discrimination is permissible when counterweighed by independent considerations. For a counterintuitive example of this, it seems that Harold might be allowed to discriminate based on ethnicity if his business was extremely sensitive to criminality and the correlation between ethnicity and criminality sufficiently strong, which is highly counterintuitive.

I have argued that absolute rights are not sufficient to explain the wrongness of discrimination, and that it should instead be explained by unfairness and negative externalities. If correct then this means we should shift our view of the wrongness of discrimination as largely being a failure of a collective responsibility, and that we have to consider for each case whether there a sufficient independent considerations as to make discrimination permissible (e.g. how sensitive does Harold’s business need to be?). I believe this is counterintuitive, and indicates that the ethics of discrimination is more complicated than it might first appear and deserves further attention.

[1] We might use the word ’discrimination’ as simply referring to different treatment based on some trait. I will reserve the term for this ‘problematic’ sense, requiring selection based on an irrelevant trait. I also believe this definition corresponds closely to how most people use the word.