discrimination definition essay

11.3 Prejudice, Discrimination, and Racism

Learning objectives.

By the end of this section, you should be able to:

• Explain the difference between stereotypes, prejudice, discrimination, and racism
• Identify different types of discrimination
• View racial tension through a sociological lens

It is important to learn about stereotypes before discussing the terms prejudice, discrimination, and racism that are often used interchangeably in everyday conversation. Stereotypes are oversimplified generalizations about groups of people. Stereotypes can be based on race, ethnicity, age, gender, sexual orientation—almost any characteristic. They may be positive (usually about one’s own group) but are often negative (usually toward other groups, such as when members of a dominant racial group suggest that a subordinate racial group is stupid or lazy). In either case, the stereotype is a generalization that doesn’t take individual differences into account.

Where do stereotypes come from? In fact, new stereotypes are rarely created; rather, they are recycled from subordinate groups that have assimilated into society and are reused to describe newly subordinate groups. For example, many stereotypes that are currently used to characterize new immigrants were used earlier in American history to characterize Irish and Eastern European immigrants.

Prejudice refers to the beliefs, thoughts, feelings, and attitudes someone holds about a group. A prejudice is not based on personal experience; instead, it is a prejudgment, originating outside actual experience. Recall from the chapter on Crime and Deviance that the criminalization of marijuana was based on anti-immigrant sentiment; proponents used fictional, fear-instilling stories of "reefer madness" and rampant immoral and illegal activities among Spanish-speaking people to justify new laws and harsh treatment of marijuana users. Many people who supported criminalizing marijuana had never met any of the new immigrants who were rumored to use it; the ideas were based in prejudice.

While prejudice is based in beliefs outside of experience, experience can lead people to feel that their prejudice is confirmed or justified. This is a type of confirmation bias. For example, if someone is taught to believe that a certain ethnic group has negative attributes, every negative act committed someone in that group can be seen as confirming the prejudice. Even a minor social offense committed by a member of the ethnic group, like crossing the street outside the crosswalk or talking too loudly on a bus, could confirm the prejudice.

While prejudice often originates outside experience, it isn't instinctive. Prejudice—as well as the stereotypes that lead to it and the discrimination that stems from it—is most often taught and learned. The teaching arrives in many forms, from direct instruction or indoctrination, to observation and socialization. Movies, books, charismatic speakers, and even a desire to impress others can all support the development of prejudices.

Discrimination

While prejudice refers to biased thinking, discrimination consists of actions against a group of people. Discrimination can be based on race, ethnicity, age, religion, health, and other categories. For example, discrimination based on race or ethnicity can take many forms, from unfair housing practices such as redlining to biased hiring systems. Overt discrimination has long been part of U.S. history. In the late nineteenth century, it was not uncommon for business owners to hang signs that read, "Help Wanted: No Irish Need Apply." And southern Jim Crow laws, with their "Whites Only" signs, exemplified overt discrimination that is not tolerated today.

Discrimination also manifests in different ways. The scenarios above are examples of individual discrimination, but other types exist. Institutional discrimination occurs when a societal system has developed with embedded disenfranchisement of a group, such as the U.S. military's historical nonacceptance of minority sexualities (the "don't ask, don't tell" policy reflected this norm).

While the form and severity of discrimination vary significantly, they are considered forms of oppression. Institutional discrimination can also include the promotion of a group's status, such in the case of privilege, which is the benefits people receive simply by being part of the dominant group.

Most people have some level of privilege, whether it has to do with health, ability, race, or gender. When discussing race, the focus is often on White privilege , which is the societal privilege that benefits White people, or those perceived to be White, over non-White people in some societies, including the United States. Most White people are willing to admit that non-White people live with a set of disadvantages due to the color of their skin. But until they gain a good degree of self-awareness, few people are willing to acknowledge the benefits they themselves receive by being a part of the dominant group. Why not? Some may feel it lessens their accomplishments, others may feel a degree of guilt, and still others may feel that admitting to privilege makes them seem like a bad or mean person. But White (or other dominant) privilege is an institutional condition, not a personal one. It exists whether the person asks for it or not. In fact, a pioneering thinker on the topic, Peggy McIntosh, noted that she didn't recognize privilege because, in fact, it was not based in meanness. Instead, it was an "invisible weightless knapsack full of special provisions" that she didn't ask for, yet from which she still benefitted (McIntosh 1989). As the reference indicates, McIntosh's first major publication about White privilege was released in 1989; many people have only become familiar with the term in recent years.

Prejudice and discrimination can overlap and intersect in many ways. To illustrate, here are four examples of how prejudice and discrimination can occur. Unprejudiced nondiscriminators are open-minded, tolerant, and accepting individuals. Unprejudiced discriminators might be those who unthinkingly practice sexism in their workplace by not considering women or gender nonconforming people for certain positions that have traditionally been held by men. Prejudiced nondiscriminators are those who hold racist beliefs but don't act on them, such as a racist store owner who serves minority customers. Prejudiced discriminators include those who actively make disparaging remarks about others or who perpetuate hate crimes.

Racism is a stronger type of prejudice and discrimination used to justify inequalities against individuals by maintaining that one racial category is somehow superior or inferior to others; it is a set of practices used by a racial dominant group to maximize advantages for itself by disadvantaging racial minority groups. Such practices have affected wealth gap, employment, housing discrimination, government surveillance, incarceration, drug arrests, immigration arrests, infant mortality and much more (Race Forward 2021).

Broadly, individuals belonging to minority groups experience both individual racism and systemic racism during their lifetime. While reading the following some of the common forms of racism, ask yourself, “Am I a part of this racism?” “How can I contribute to stop racism?”

• Individual or Interpersonal Racism refers to prejudice and discrimination executed by individuals consciously and unconsciously that occurs between individuals. Examples include telling a racist joke and believing in the superiority of White people.
• Systemic Racism , also called structural racism or institutional racism, is systems and structures that have procedures or processes that disadvantages racial minority groups. Systemic racism occurs in organizations as discriminatory treatments and unfair policies based on race that result in inequitable outcomes for White people over people of color. For example, a school system where students of color are distributed into underfunded schools and out of the higher-resourced schools.
• Racial Profiling is a type of systemic racism that involves the singling out of racial minorities for differential treatment, usually harsher treatment. The disparate treatment of racial minorities by law enforcement officials is a common example of racial profiling in the United States. For example, a study on the Driver's License Privilege to All Minnesota Residents from 2008 to 2010 found that the percentage of Latinos arrested was disproportionally high (Feist 2013). Similarly, the disproportionate number of Black men arrested, charged, and convicted of crimes reflect racial profiling.
• Historical Racism is economic inequality or social disparity caused by past racism. For example, African-Americans have had their opportunities in wealth, education and employment adversely affected due to the mistreatment of their ancestors during the slavery and post-slavery period (Wilson 2012).
• Cultural Racism occurs when the assumption of inferiority of one or more races is built into the culture of a society. For example, the European culture is considered supposedly more mature, evolved and rational than other cultures (Blaut 1992). A study showed that White and Asian American students with high GPAs experience greater social acceptance while Black and Native American students with high GPAs are rejected by their peers (Fuller-Rowell and Doan 2010).
• Colorism is a form of racism, in which someone believes one type of skin tone is superior or inferior to another within a racial group. For example, if an employer believes a Black employee with a darker skin tone is less capable than a Black employee with lighter skin tone, that is colorism. Studies suggest that darker skinned African Americans experience more discrimination than lighter skinned African Americans (Herring, Keith, and Horton 2004; Klonoff and Landrine 2000).
• Color-Avoidance Racism (sometimes referred to as "colorblind racism") is an avoidance of racial language by European-Americans that ignores the fact that racism continues to be an issue. The U.S. cultural narrative that typically focuses on individual racism fails to recognize systemic racism. It has arisen since the post-Civil Rights era and supports racism while avoiding any reference to race (Bonilla-Silva 2015).

How to Be an Antiracist

Almost all mainstream voices in the United States oppose racism. Despite this, racism is prevalent in several forms. For example, when a newspaper uses people's race to identify individuals accused of a crime, it may enhance stereotypes of a certain minority. Another example of racist practices is racial steering , in which real estate agents direct prospective homeowners toward or away from certain neighborhoods based on their race.

Racist attitudes and beliefs are often more insidious and harder to pin down than specific racist practices. They become more complex due to implicit bias (also referred to as unconscious bias) which is the process of associating stereotypes or attitudes towards categories of people without conscious awareness – which can result in unfair actions and decisions that are at odds with one’s conscious beliefs about fairness and equality (Osta and Vasquez 2021). For example, in schools we often see “honors” and “gifted” classes quickly filled with White students while the majority of Black and Latino students are placed in the lower track classes. As a result, our mind consciously and unconsciously starts to associate Black and Latino students with being less intelligent, less capable. Osta and Vasquez (2021) argue that placing the student of color into a lower and less rigorous track, we reproduce the inequity and the vicious cycle of structural racism and implicit bias continues.

If everyone becomes antiracist, breaking the vicious cycle of structural racism and implicit bias may not be far away. To be antiracist is a radical choice in the face of history, requiring a radical reorientation of our consciousness (Kendi 2019). Proponents of anti-racism indicate that we must work collaboratively within ourselves, our institutions, and our networks to challenge racism at local, national and global levels. The practice of anti-racism is everyone’s ongoing work that everyone should pursue at least the following (Carter and Snyder 2020):

• Understand and own the racist ideas in which we have been socialized and the racist biases that these ideas have created within each of us.
• Identify racist policies, practices, and procedures and replace them with antiracist policies, practices, and procedures.

Anti-racism need not be confrontational in the sense of engaging in direct arguments with people, feeling terrible about your privilege, or denying your own needs or success. In fact, many people who are a part of a minority acknowledge the need for allies from the dominant group (Melaku 2020). Understanding and owning the racist ideas, and recognizing your own privilege, is a good and brave thing.

We cannot erase racism simply by enacting laws to abolish it, because it is embedded in our complex reality that relates to educational, economic, criminal, political, and other social systems. Importantly, everyone can become antiracist by making conscious choices daily. Being racist or antiracist is not about who you are; it is about what you do (Carter and Snyder 2020).

What does it mean to you to be an “anti-racist”? How do see the recent events or protests in your community, country or somewhere else? Are they making any desired changes?

Big Picture

Racial tensions in the united states.

The death of Michael Brown in Ferguson, Missouri on August 9, 2014 illustrates racial tensions in the United States as well as the overlap between prejudice, discrimination, and institutional racism. On that day, Brown, a young unarmed Black man, was killed by a White police officer named Darren Wilson. During the incident, Wilson directed Brown and his friend to walk on the sidewalk instead of in the street. While eyewitness accounts vary, they agree that an altercation occurred between Wilson and Brown. Wilson’s version has him shooting Brown in self-defense after Brown assaulted him, while Dorian Johnson, a friend of Brown also present at the time, claimed that Brown first ran away, then turned with his hands in the air to surrender, after which Wilson shot him repeatedly (Nobles and Bosman 2014). Three autopsies independently confirmed that Brown was shot six times (Lowery and Fears 2014).

The shooting focused attention on a number of race-related tensions in the United States. First, members of the predominantly Black community viewed Brown’s death as the result of a White police officer racially profiling a Black man (Nobles and Bosman 2014). In the days after, it was revealed that only three members of the town’s fifty-three-member police force were Black (Nobles and Bosman 2014). The national dialogue shifted during the next few weeks, with some commentators pointing to a nationwide sedimentation of racial inequality and identifying redlining in Ferguson as a cause of the unbalanced racial composition in the community, in local political establishments, and in the police force (Bouie 2014). Redlining is the practice of routinely refusing mortgages for households and businesses located in predominately minority communities, while sedimentation of racial inequality describes the intergenerational impact of both practical and legalized racism that limits the abilities of Black people to accumulate wealth.

Ferguson’s racial imbalance may explain in part why, even though in 2010 only about 63 percent of its population was Black, in 2013 Black people were detained in 86 percent of stops, 92 percent of searches, and 93 percent of arrests (Missouri Attorney General’s Office 2014). In addition, de facto segregation in Ferguson’s schools, a race-based wealth gap, urban sprawl, and a Black unemployment rate three times that of the White unemployment rate worsened existing racial tensions in Ferguson while also reflecting nationwide racial inequalities (Bouie 2014).

This situation has not much changed in the United States. After Michael Brown, dozens of unarmed Black people have been shot and killed by police. Studies find no change to the racial disparity in the use of deadly force by police (Belli 2020). Do you think that racial tension can be reduced by stopping police action against racial minorities? What types of policies and practices are important to reduce racial tension? Who are responsible? Why?

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Discrimination

Discrimination is prohibited by six of the core international human rights documents. The vast majority of the world’s states have constitutional or statutory provisions outlawing discrimination (Osin and Porat 2005). And most philosophical, political, and legal discussions of discrimination proceed on the premise that discrimination is morally wrong and, in a wide range of cases, ought to be legally prohibited. However, co-existing with this impressive global consensus are many contested questions, suggesting that there is less agreement about discrimination than initially meets the eye. What is discrimination? Is it a conceptual truth that discrimination is wrong, or is it a substantive moral judgment? What is the relation of discrimination to oppression and exploitation? What are the categories on which acts of discrimination can be based, aside from such paradigmatic classifications as race, religion, and sex? These are some of the contested issues.

1.1 A First Approximation

1.2 the moralized concept, 2.1 direct discrimination, 2.2 indirect discrimination, 2.3 organizational, institutional, and structural discrimination, 3.1 is indirect discrimination really discrimination, 3.2 is the dispute merely terminological, 4.1 the wrongs of direct discrimination, 4.2 the wrongs of indirect discrimination, 5. which groups count, 6. what good is the concept of discrimination, 7. intersectionality, 8. religious liberty and antidiscrimination laws, 9. conclusion, legal cases and documents, other internet resources, related entries, 1. the concept of discrimination.

What is discrimination? More specifically, what does it mean to discriminate against some person or group of persons? It is best to approach this question in stages, beginning with an answer that is a first approximation and then introducing additions, qualifications, and refinements as further questions come into view.

In his review of the international treaties that outlaw discrimination, Wouter Vandenhole finds that “[t]here is no universally accepted definition of discrimination” (2005: 33). In fact, the core human rights documents fail to define discrimination at all, simply providing non-exhaustive lists of the grounds on which discrimination is to be prohibited. Thus, the International Covenant on Civil and Political Rights declares that “the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status” (Article 26). And the European Convention for the Protection of Human Rights declares, “The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, color, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status” (Article 14). Left unaddressed is the question of what discrimination itself is.

Standard accounts hold that discrimination consists of actions, practices, or policies that are—in some appropriate sense—based on the (perceived) social group to which those discriminated against belong and that the relevant groups must be socially salient in that they structure interaction in important social contexts (cf. Lippert-Rasmussen 2006: 169, and Holroyd 2018: 384). Thus, groups based on race, religion and gender qualify as potential grounds of discrimination in any modern society, but groups based on the length of a person’s toenails would typically not qualify. However, Eidelson has challenged the social salience requirement (2015: 28–30), and a sound understanding of what makes discrimination wrongful might depend on how the challenge is resolved. Eidelson’s view is examined in section 4.1 below. In the meantime, the analysis of discrimination presented here will proceed on the basis of the social salience requirement.

Discrimination against persons, then, is necessarily oriented toward them based on their membership in a certain type of social group. But it is also necessary that the discriminatory conduct impose some kind of disadvantage, harm, or wrong on the persons at whom it is directed. In this connection, consider the landmark opinion of the U.S. Supreme Court in Brown v. Board of Education, holding that de jure racial segregation in public schools is unconstitutional. The Court writes, “Segregation with the sanction of law … has a tendency to [retard] the educational and mental development of negro children and to deprive them of some of the benefits they would receive in a racial[ly] integrated school system” (1954: 495). Thus, the court rules that segregation amounts to illegal discrimination against black children because it imposes on them educational and psychological disadvantages.

Additionally, as Brown makes clear, the disadvantage imposed by discrimination is to be determined relative to some appropriate comparison social group. This essential reference to a comparison group explains why duties of non-discrimination are “duties to treat people in certain ways defined by reference to the way that others are treated” (Gardner 1998: 355). Typically, the relevant comparison group is part of the same society as the disadvantaged group, or at least it is governed by the same overarching political structure. In Brown , the relevant comparison group consisted of white citizens. Accordingly, it would be mistaken to think that the black citizens of Kansas who brought the lawsuit were not discriminated against because they were treated no worse than blacks in South Africa were being treated under apartheid. Blacks in South Africa were not the proper comparison class.

The appropriate comparison class is determined by normative principles. American states are obligated to provide their black citizens an education that is no worse than what they provide to their white citizens; any comparison with the citizens or subjects of other countries is beside the point. It should also be noted that, whether or not American states have an obligation to provide an education to any of their citizens, if such states provide an education to their white citizens, then it is discriminatory for the states to fail to provide an equally good education to their black citizens. And if states do have an obligation to provide an education to all their citizens, then giving an education to whites but not blacks would constitute a double-wrong against blacks: the wrong of discrimination, which depends on how blacks are treated in comparison to whites, and the wrong of denying blacks an education, which does not depend on how whites are treated.

Discrimination is necessarily comparative, and the Brown case seems to suggest that what counts in the comparison is not how well or poorly a person (or group) is treated on some absolute scale, but rather how well she is treated relative to some other person. But an important element of the court’s reasoning in Brown suggests that the disadvantage or wrong imposed by a discriminatory act can encompass more than the harmful downstream causal consequences of the act. Thus, the Court famously writes, “Separate educational facilities are inherently unequal” (1954: 495). The Court can be construed as saying that, apart from the harmful educational and psychological consequences for black children, the Jim Crow segregation of public schools stamps those children with a badge of inferiority and thereby treats them unfavorably in comparison to white children.

It is important to recognize that discrimination, in the morally and socially relevant sense, is not simply differential treatment. Differential treatment is symmetrical: if blacks are treated differently from whites, then whites must be treated differently from blacks. But it is implausible to hold that Jim Crow and South Africa’s apartheid system discriminated against whites. The system arguably held back economic progress for everyone in the South, but that point is quite different from the implausible claim that everyone was a victim of discrimination. Accordingly, it is better to think of discrimination in terms of disadvantageous treatment rather than simply differential treatment. Discrimination imposes a disadvantage on certain persons relative to others, and those who are treated more favorably are not to be seen as victims of discrimination.

An act can both be discriminatory and, simultaneously, confer an absolute benefit on those discriminated against, because the conferral of the benefit might be combined with conferring a greater benefit on the members of the appropriate comparison group. In such a case, the advantage of receiving an absolute benefit is, at the same time, a relative disadvantage or deprivation. For example, consider the admissions policy of Harvard University in the early twentieth century, when the university had a quota on the number of Jewish students. Harvard was guilty of discriminating against all Jewish applicants on account of their religion. Yet, the university still offered the applicants something of substantial value, viz., the opportunity to compete successfully for admission. What made the university’s offer of this opportunity discriminatory was that the quota placed (potential and actual) Jewish applicants at a disadvantage, due to their religion, relative to Christian ones.

One might think that it downplays the harm done by discrimination to say that the disadvantage it imposes only need be a relative disadvantage. However, the Brown case shows how the imposition of even a “merely” relative disadvantage can have extremely bad and unjust consequences for persons, especially when the relevant comparison class consists of one’s fellow citizens. Disadvantages relative to fellow citizens, when those disadvantages are severe and concern important goods such as education and social status, can make persons vulnerable to domination and oppression at the hands of their fellow citizens (Anderson 1999). The domination and oppression of American blacks by their fellow citizens under Jim Crow was made easier by the relative disadvantage imposed on blacks when it came to education. Norwegians might have had an even better education than southern whites, but Norwegians posed little threat of domination to southern whites or blacks, because they lived under an entirely separate political structure, having minimal relations to American citizens. Matters are different in today’s globalized world, where an individual’s disadvantage in access to education relative to persons who live in other countries could pose a threat of oppression. Accordingly, one must seriously consider the possibility that children from poor countries are being discriminated against when they are unable to obtain the education routinely available to children in affluent societies.

The relative nature of the disadvantage that discrimination imposes explains the close connection between discrimination and inequality. A relative disadvantage necessarily involves an inequality with respect to persons in the comparison class. Accordingly, antidiscrimination norms prohibit certain sorts of inequalities between persons in the relevant comparison classes (Shin 2009). For example, the U.S. Civil Rights Act of 1866 requires that all citizens “shall have the same right, in every State and Territory in the United States, to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property, and to full and equal benefit of all laws and proceedings for the security of person and property, as is enjoyed by white citizens” (Civil Rights Act 1866). And the international convention targeting discrimination against women condemns “any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women … on a basis of equality of men and women, of human rights and fundamental freedoms” (CEDAW, Article 1).

To review: as a reasonable first approximation, we can say that discrimination consists of acts, practices, or policies that impose a relative disadvantage on persons based on their membership in a salient social group. But notice that this account does not make discrimination morally wrong as a conceptual matter. The imposition of a relative disadvantage might, or might not, be wrongful. In the next section, we will see how the idea of moral wrongfulness can be introduced to form a moralized concept of discrimination.

In recent years, some thinkers have rejected the view that discrimination is an essentially comparative concept that looks to how certain persons are treated relative to others. For example, Réaume argues against the view by invoking the “leveling-down objection.” She points out that, if there is an inequality in the distribution of some benefit between two persons or groups, then we need to ask “whether leveling up or leveling down are, other things held constant, regarded as equally attractive solutions” (2013: 8). The comparative view seems to entail that the two solutions are equally attractive, but, Réaume points out, plaintiffs in discrimination cases who are demanding equal treatment “rarely put their claim this way” (8) and would not be satisfied with the leveling-down solution: “they ask to vote as well, not that voting be abolished, or that a pension scheme include them, not that it be repealed.” Réaume continues, “To level down would deprive everyone of something all are properly entitled to, and thus exacerbate rather than solve the problem” (11).

Nonetheless, the leveling-down objection is problematic. That plaintiffs in discrimination cases do not ask that voting be abolished only shows that they know that they would be better off with everyone having the right to vote than with no one having it. Moreover, although leveling down would, in typical cases, deprive everyone of something to which all are entitled, it does not follow that leveling down would constitute discrimination. The universal denial of the franchise would be a wrong, but not the wrong of discrimination. Denial of the franchise amounts to discrimination only when it is selectively directed at some salient group within the adult population. Accordingly, Lippert-Rasmussen seems to be right when he explains, “Unlike other prima facie morally wrong acts, such as lying, hurting, or manipulating, one cannot discriminate against some unless there are others who receive (or who would receive) better treatment at one’s hands …. I can rebut an accusation of having discriminated against someone by saying that I would have treated anyone else at least as badly in that situation” (2014: 16).

The concept of discrimination is inherently normative to the extent that the idea of disadvantage is a normative one. But it does not follow from this point that discrimination is, by definition, morally wrong. At the same time, many—or even most—uses of the term ‘discrimination’ in contemporary political and legal discussions do employ the term in a moralized sense. Wasserman is using this moralized sense, when he writes that “[t]o claim that someone discriminates is … to challenge her for justification; to call discrimination ‘wrongful’ is merely to add emphasis to a morally-laden term” (1998: 805). We can, in fact, distinguish a moralized from a non-moralized concept of discrimination. The moralized concept picks out acts, practices or policies insofar as they wrongfully impose a relative disadvantage on persons based on their membership in a salient social group of a suitable sort. The non-moralized concept simply dispenses with the adverb ‘wrongfully’.

Accordingly, the sentence ‘Discrimination is wrong’ can be either a tautology (if ‘discrimination’ is used in its moralized sense) or a substantive moral judgment (if ‘discrimination’ is used in its non- moralized sense). And if one wanted to condemn as wrong a certain act or practice, then one could call it ‘discrimination’ (in the moralized sense) and leave it at that, or one could call it ‘discrimination’ (in the non-moralized sense) and then add that it was wrongful. In contexts where the justifiability of an act or practice is under discussion and disagreement, the moralized concept of discrimination is typically the key one used, and the disagreement is over whether the concept applies to the act. Because of its role in such discussion and disagreement, the remainder of this article will be concerned with the moralized concept of discrimination, unless it is explicitly indicated otherwise.

There is an additional point that needs to be made in connection with the wrongfulness of discrimination in its moralized sense. It is not simply that such discrimination is wrongful as a conceptual matter. The wrongfulness of the discrimination is tied to the fact that the discriminatory act is based on the victim’s membership in a salient social group. An act that imposes a relative disadvantage or deprivation might be wrong for a variety of reasons; for example, the act might violate a promise that the agent has made. The act counts as discrimination, though, only insofar as its wrongfulness derives from a connection of the act to the membership in a certain group(s) of the person detrimentally affected by the act. Accordingly, we can refine the first-approximation account of discrimination and say that the moralized concept of discrimination is properly applied to acts, practices or policies that meet two conditions: a) they wrongfully impose a relative disadvantage or deprivation on persons based on their membership in some salient social group, and b) the wrongfulness rests (in part) on the fact that the imposition of the disadvantage is on account of the group membership of the victims.

2. Types of Discrimination (in its Moralized Sense)

Legal thinkers and legal systems have distinguished among a bewildering array of types of discrimination: direct and indirect, disparate treatment and disparate impact, intentional and institutional, individual and structural. It is not easy to make sense of the morass of categories and distinctions. The best place to start is with direct discrimination.

Consider the following, clear instance of direct discrimination. In 2002, several men of Roma descent entered a bar in a Romanian town and were refused service. The bar employee explained his conduct by pointing out to them a sign saying, “We do not serve Roma.” The Romanian tribunal deciding the case ruled that the Roma men had been the victims of unlawful direct discrimination (Schiek, Waddington, & Bell 2007: 185). The bar’s policy, as formulated in its sign, explicitly and intentionally picked out the Roma qua Roma for disadvantageous treatment. It was those two features—explicitness and intention—that made the Roma case a paradigmatic example of direct discrimination. Such examples of discrimination are cases in which the agent acts with the aim of imposing a disadvantage on persons for being members of some salient social group. In the Roma case, the bartender and bar owner aimed to exclude Roma for being Roma, and so both the owner’s policy and the bartender’s maxim of action explicitly referred to the exclusion of Roma. It is clear that the policy of the bar was wrong, but the question of what makes the policy and other instances direct discrimination wrongful will be put on hold until section 4.1 below.

In some cases, a discriminator will adopt a policy that, on its face, makes no explicit reference to the group that he or she aims to disadvantage. Instead, the policy employs some facially-neutral surrogate that, when applied, accomplishes the discriminator’s hidden aim. For example, during the Jim Crow era, southern states used literacy tests for the purpose of excluding African-Americans from the franchise. Because African-Americans were denied adequate educational opportunities and because the tests were applied in a racially-biased manner, virtually all of the persons disqualified by the tests were African-Americans, and, in any given jurisdiction, the vast majority of African-American adults seeking to vote were disqualified. The point of the literacy tests was precisely such racial exclusion, even though the testing policy made no explicit reference to race.

Notwithstanding the absence of an explicit reference to race in the literacy tests themselves, their use was a case of direct discrimination. The reason is that the persons who formulated, voted for, and implemented the tests acted on maxims that did make explicit reference to race. Their maxim was something along the lines of: ‘In order to exclude African-Americans from the franchise and do so in a way that appears consistent with the U.S. Constitution, I will favor a legal policy that is racially-neutral on its face but in practice excludes most African-Americans and leaves whites unaffected.’ As with the Roma case, there were agents whose aim was to disadvantage persons for belonging to a certain social group.

However, it is too simple to say that direct discrimination simply is intentional discrimination. Lippert-Rasmussen rightly points out that there can be cases of direct discrimination not involving the intention to disadvantage anyone on account of her group membership (2014: 59–60). A disadvantage might, instead, be imposed as a result of a general indifference toward the interests and rights of the members of a certain group. Thus, an employer might use hiring criteria that unfairly disadvantages women, not because the employer intends to disadvantage women, but because the criteria are easy to use and he simply does not care that women are unfairly disadvantaged as a result. Such instances of discrimination might not have the paradigmatic status that an example like the Roma case has, but they should be counted as forms of direct discrimination, because the disadvantageous treatment derives from an objectionable mental state of the agent. The same goes for disadvantageous treatment that is the product of bias against a certain group, even when the bias does not involve an intention to treat the group disadvantageously. A paternalistic employer might intend to help women by hiring them only for certain jobs in his company, but, if the employer is motivated by unwarranted views about the capabilities of women, he is guilty of direct discrimination.

Acts of direct discrimination can be unconscious in that the agent is unaware of the discriminatory motive behind them. It is plausible to think that in many societies, unconscious prejudice is a factor in a significant range of discriminatory behavior, and a viable understanding of the concept of discrimination must be able to accommodate the possibility. In fact, there is growing evidence that unconscious discrimination exists (Jost et al. 2009; Payne and Cameron 2010; and Brownstein and Saul 2016). And as Wax has noted, even the intention to disadvantage persons on account of their group affiliation can be unconscious (2008: 983).

Under many legal systems, an act that imposes a disproportionate disadvantage on the members of a certain group can count as discriminatory, even though the agent has no intention to disadvantage the members of the group and no other objectionable mental state, such as indifference or bias, motivating the act. This form of discriminatory conduct is called “indirect discrimination” or, in the language of American doctrine, “disparate impact” discrimination. Thus, the European Court of Human Rights (ECHR) has held that “[w]hen a general policy or measure has disproportionately prejudicial effects on a particular group, it is not excluded that this may be considered as discriminatory notwithstanding that it is not specifically aimed or directed at that group” (Shanaghan v. U.K. 2001: para. 129).

It should be noted that the ECHR says that policies with disproportionate effects may be discriminatory even if that is not the aim of the policies. So what criterion determines when a policy with disproportionately worse effects on a certain group actually counts as indirect discrimination? There is no agreed upon answer.

The ECHR has laid down the following criterion: a policy with disproportionate effects counts as indirect discrimination “if it does not pursue a legitimate aim or if there is not a reasonable relation of proportionality between means and aim” (Abdulaziz et al. v. U.K., 1985: para. 721). The Human Rights Committee of the United Nations has judged that a policy with disproportionate effects is discriminatory “if it is not based on objective and reasonable criteria” (Moucheboeuf 2006: 100). Under the British Race Relations Act, such a policy is discriminatory if the policymaker “cannot show [the policy] to be justifiable irrespective of the … race … of the person to whom it is applied” (Osin and Porat 2005: 900). And in its interpretation of the Civil Rights Act of 1964, the U.S. Supreme Court has held that, in judging whether the employment policies of private businesses are (indirectly) discriminatory, “[i]f an employment practice which operates to exclude Negroes cannot be shown to be related to job performance, the practice is prohibited” ( Griggs v. Duke Power 1971: 431). Despite the differences, these criteria have a common thought behind them: a disproportionately disadvantageous impact on the members of certain salient social groups must not be written off as morally or legally irrelevant or dismissed as mere accident, but rather stands in need of justification. In other words, the impact must not be treated as wholly inconsequential, as if it were equivalent, for example, to a disproportionate impact on persons with long toe nails. Toe-nail group impact would require no justification, because it would simply be an accidental and morally inconsequential feature of the act, at least in all actual societies. In contrast, the thought behind the idea of indirect discrimination is that, if an act has a disproportionately disadvantageous impact on persons belonging to certain types of salient social groups, then the act is morally wrong and prohibited by anti-discrimination law unless it can meet some suitable standard of justification.

To illustrate the idea of indirect discrimination, we can turn to the U.S. Supreme Court case, Griggs v. Duke Power (1971). A company in North Carolina used a written test to determine promotions. The use of the test had the result that almost all black employees failed to qualify for the promotions. The company was not accused of direct discrimination, i.e., there was no claim that a racially discriminatory attitude was behind the decision of the company to use the written test. But the court found that the test did not measure skills essential for the jobs in question and that the state of North Carolina had a long history of deliberately discriminating against blacks by, among other things, providing grossly inferior education to them. The state had only very recently begun to rectify that situation. In ruling for the black plaintiffs, the court reasoned that the policy of using the test was racially discriminatory, because of the test’s disproportionate racial impact combined with the fact that it was not necessary to use the test to determine who was best qualified for promotion.

In many cases, acts of discrimination are attributed to collective agents, rather than to natural persons acting in their individual capacities. Accordingly, corporations, universities, government agencies, religious bodies, and other collective agents can act in discriminatory ways. This kind of discrimination can be called “organizational,” and it cuts across the direct-indirect distinction. Confusion sometimes arises when it is mistakenly believed that organizations cannot have intentions and that only indirect discrimination is possible for them. As collective agents, organizations do have intentions, and those intentions are a function of who the officially authorized agents of the institution are and what they are trying to do when they act as their official powers enable them. Suppose that the Board of Trustees of a university votes to adopt an admissions policy that (implicitly or explicitly) excludes Jews, and the trustees vote that way precisely because they believe that Jews are inherently more dishonest and greedy than other people. In such a cases, the university is deliberately excluding Jews and is guilty of direct discrimination. Individual trustees acting in their private capacity might engage in other forms of discriminatory conduct; for example, they might refuse to join clubs that have Jewish members. Such a refusal would not count as organizational discrimination. But any discriminatory acts attributable to individual board members in virtue of some official power that they hold would count as organizational discrimination.

Structural discrimination—sometimes called “institutional” (Ture and Hamilton 1992 [1967]: 4)—should be distinguished from organizational: the structural form concerns the rules that constitute and regulate the major sectors of life such as family relations, property ownership and exchange, political powers and responsibilities, and so on (Pogge 2008: 37). It is true that when such rules are discriminatory, they are often—though not always—the deliberate product of some collective or individual agent, such as a legislative body or executive official. In such cases, the agents are guilty of direct discrimination. But the idea of structural discrimination is an effort to capture a wrong distinct from direct discrimination. Thus, Fred Pincus writes that “[t]he key element in structural discrimination is not the intent but the effect of keeping minority groups in a subordinate position” (1994: 84). What Pincus and others have in mind can be explained in the following way.

When the rules of a society’s major institutions reliably produce disproportionately disadvantageous outcomes for the members of certain salient social groups and the production of such outcomes is unjust, then there is structural discrimination against the members of the groups in question, apart from any direct discrimination in which the collective or individual agents of the society might engage. This account does not mean that, empirically speaking, structural discrimination stands free of direct discrimination. It is highly unlikely that the reliable production of unjust and disproportionately disadvantageous effects would be a chance occurrence. Rather, it is (almost) always the case that, at some point(s) in the history of a society in which there is structural discrimination, important collective agents, such as governmental ones, intentionally created rules with the aim of disadvantaging the members of the groups in question. It is also likely that some collective and individual agents continue to engage in direct discrimination in such a society. But by invoking the idea of structural discrimination and attributing the discrimination to the rules of a society’s major institutions, we are pointing to a form of discrimination that is conceptually distinct from the direct discrimination engaged in by collective or individual agents. Thus understood, structural discrimination is, as a conceptual matter, necessarily indirect, although, as an empirical matter, direct discrimination is (almost) always part of the story of how structural discrimination came to be and continues to exist.

Also note that the idea of structural discrimination does not presuppose that, whenever the rules of society’s major institutions consistently produce disproportionately disadvantageous results for a salient group such as women or racial minorities, structural discrimination thereby exists. Because our concern is with the moralized concept of discrimination, one might think that disproportionate outcomes, by themselves, entail that an injustice has been done to the members of the salient group in question and that structural discrimination thereby exists against the group. However, on a moralized concept of structural discrimination, the injustice condition is distinct from the disproportionate outcome condition. Whether a disproportionate outcome is sufficient for concluding that there is an injustice against the members of the group is a substantive moral question. Some thinkers might claim that the answer is affirmative, and such a claim is consistent with the moralized concept of structural discrimination. However, the claim is not presupposed by the moralized concept, which incorporates only the conceptual thesis that a pattern of disproportionate disadvantage falling on the members of certain salient groups does not count as structural discrimination unless the pattern violates sound principles of distributive justice.

3. Challenging the Concept of Indirect Discrimination

The distinction between direct and indirect discrimination plays a central role in contemporary thinking about discrimination. However, some philosophers hold that talking about indirect discrimination is confused and misguided. For these philosophers, direct discrimination is the only genuine form of discrimination. Examining their challenge to the very concept of indirect discrimination is crucial in developing a philosophical account of what discrimination is.

Young argues that the concept of discrimination should be limited to “intentional and explicitly formulated policies of exclusion or preference.” She holds that conceiving of discrimination in terms of the consequences or impact of an act, rather than in terms of its intent, “confuses issues” by conflating discrimination with oppression. Discrimination is a matter of the intentional conduct of particular agents. Oppression is a matter of the outcomes routinely generated by “the structural and institutional framework” of society (1990: 196).

Cavanagh holds a position similar to Young’s, writing that persons “who are concerned primarily with how things like race and sex show up in the overall distributions [of jobs] have no business saying that their position has anything to do with discrimination. It is not discrimination they object to, but its effects; and these effects can equally be brought about by other causes” (2002: 199). On Cavanagh’s view, then, if one finds it inherently objectionable for political officeholders to be predominantly male, then one can sensibly charge that such a disproportion is unjust but cannot coherently claim that it is, in itself, discriminatory.

Along the same lines, Eidelson contends that “‘indirect’ discrimination is not usefully thought of as a distinct form of discrimination at all, except as a piece of legal jargon” (2015: 19). He writes, “Precisely because the connotation of ‘discrimination’ as an act … in which an agent is sensitive to some feature of the discriminatee, and engages in some manner of differential treatment, is inescapable, describing indirect discrimination as discrimination is a serious obstacle to clear communication” (56).

The arguments of Cavanagh, Eidelson and Young raise a question that is not easy to answer, viz., why can indirect and direct discrimination be legitimately considered as two subcategories of one and the same concept? In other words, what do the two supposed forms of discrimination really have in common that make them forms of the same type of moral wrong? Direct discrimination is essentially a matter of the reasons or motives that guide the act or policy of a particular agent, while indirect discrimination is not about such reasons or motives. Even conceding that acts or policies of each type can be wrong, it is unclear that the two types are each species of one and the same kind of moral wrong, i.e., the wrong of discrimination. And if cases of direct discrimination are paradigmatic examples of discrimination, then a serious question arises as to whether the concept of discrimination properly applies to the policies, rules, and acts that are characterized as “indirect” discrimination.

Moreover, there is a crucial ambiguity in how discrimination is understood that lends itself to conflating direct discrimination with the phenomena picked out by ‘indirect discrimination’. Direct discrimination involves the imposition of disadvantages “based on” or “on account of” or “because of” membership in some salient social group. Yet, these phrases can refer either to a) the reasons that guide the acts of agents or to b) factors that do not guide agents but do help explain why the disadvantageous outcomes of certain acts and policies fall disproportionately on certain salient groups (Cf. Shin 2010). In the Roma case, the disadvantage was “because of” ethnicity in the former sense: the ethnicity of the Roma was a consideration that guided the acts of the bar owner and bartender. In the Griggs case, the disadvantage was “because of race” in the latter sense: race did not guide the acts of the company but neither was it an accident that the disadvantages of the written test fell disproportionately on blacks. Rather, race, in conjunction with the historical facts about North Carolina’s educational policies, explained why the disadvantage fell disproportionately on black employees.

The thought that the policy of the company in Griggs is a kind of discrimination, viz., indirect discrimination, seems to trade on the ambiguity in the meanings of the locutions ‘based on’, ‘because of’, ‘on account of’, and so on. The state of North Carolina’s policy of racial segregation in education imposed disadvantages based on/because of/on account of race, in one sense of those terms. The company’s policy of using a written test imposed disadvantages based on/because of/on account of race, in a different sense. Even conceding that both the state and the company wronged blacks on the basis of their race, it appears that the two cases present two different kinds of wrong.

Nonetheless, the idea of indirect discrimination can help to highlight how the wrongful harms of direct discrimination are capable of ramifying via acts and policies that are not directly discriminatory and would be entirely innocent but for the link between them and acts of direct discrimination. In the Griggs case, direct discrimination had harmed blacks by putting them at an educational disadvantage. Even if the direct discrimination had ceased at some prior point, the policy of the company enabled the educational disadvantage to branch into an employment disadvantage, thereby amplifying and perpetuating the wrongful harms of the original direct discrimination. The language of indirect discrimination can spotlight the link between the two forms of disadvantage and capture the idea that the wrongful harms of direct discrimination should not be allowed to extend willy-nilly across time and domains of life via otherwise innocent acts.

However, it is also true that the idea of indirect discrimination is typically understood in a broader way that does not require any connection to direct discrimination. Accordingly, in his discussion of how persons adhering to certain religious beliefs or practices might be put at an unjust disadvantage by an employer’s dress code, Jones writes, “Indirect discrimination law aims … to eliminate inequalities of opportunity arising from religion or belief” (170). For example, if a code excludes a form of dress that persons adhering to a particular religion regard as theologically-favored, such as head coverings or veils, then the British law of indirect discrimination requires that the company grant an exemption to those persons, unless it can show that the code is a proportionate means for achieving a legitimate aim. On Jones’s view, the law thereby counters, albeit in a limited way, an unjust burden placed on certain religious adherents and promotes equal employment opportunity.

The critics of the idea of indirect discrimination think that Jones is conflating distinct wrongs: the right of equal opportunity can be violated by discrimination, but it can also be violated by other sorts of wrongs. Even if certain dress codes violate the right and do so in a way that tracks a particular religious identity, it does not follow that the codes are cases of wrongful discrimination. But Jones can respond that, as long as the wrongful treatment tracks salient social categories, differentially disadvantaging persons belonging to such a category, then characterizing the treatment as discrimination is in order.

Still, critics will contend that the concept of indirect discrimination is problematic, because its use mistakenly presupposes that the wrongfulness of discrimination can lie ultimately in its effects on social groups. Certainly, bad effects can be brought about by discriminatory processes, but critics argue that the wrongfulness lies in what brings about the effects, i.e., in the unfairness or injustice of those acts or policies that generate the effects, and does not reside in the effects themselves. Addressing this argument requires a closer examination of why discrimination is wrong, the topic of section 4. Before turning to that section, it would be helpful to address a suspicion that might arise in the course of pondering whether indirect discrimination really is a form of discrimination.

One might suspect that any disagreement over whether indirect discrimination is really a form of discrimination is only a terminological one, devoid of any philosophical substance and capable of being adequately settled simply by the speaker stipulating how she is using the term ‘discrimination’ (Cavanagh 2002: 199). One side in the disagreement could, then, stipulate that, as it is using the term, ‘discrimination’ applies only to direct discrimination, and the other side could stipulate that ‘discrimination’, as it is using the term, applies to direct and indirect discrimination alike. However, the choice of terminology is not always philosophically innocent or unproblematic. A poor choice of terminology can lead to conceptual confusions and fallacious inferences. Cavanagh argues that precisely these sorts of infelicities are fostered when ‘discrimination’ is used to refer to a wrong that essentially depends on certain effects being visited upon the members of a social group (2002: 199). Moreover, the critics and the defenders of the term ‘indirect discrimination’ presumably agree with one another that the concept of discrimination possesses a determinate meaning that either admits, or does not admit, of an indirect form of discrimination. So it seems that the disagreement over indirect discrimination has philosophical significance.

The possibility should be acknowledged that the concept of discrimination is insufficiently determinate to dictate an answer to the question of whether there can be an indirect form of discrimination. In that case, any disagreement over the possibility of such discrimination would be devoid of philosophical substance and should be settled by speaker stipulation. However, it would be hasty to arrive at the conclusion that there is no answer before a thorough examination of the concept of discrimination is completed and some judgment is made about what the best account is of the concept. And a thorough examination must take up the question of why discrimination is wrong.

4. Why Is Discrimination Wrong?

In examining the question of why discrimination is wrongful, let us begin with direct discrimination and then turn to the indirect form. This approach will help shed some light on whether the wrongs involved in the two forms are sufficiently analogous to consider them as two types of one and the same kind of wrong.

Specifying why direct discrimination is wrongful has proved to be a surprisingly controversial and difficult task. There is general agreement that the wrong concerns the kind of reason or motive that guides the action of the agent of discrimination: the agent is acting on a reason or motive that is in some way illegitimate or morally tainted. But there are more than a half-dozen distinct views about what the best principle is for drawing the distinction between acts of direct discrimination (in the moralized sense) and those acts that are not wrongful even though the agent takes account of another’s social group membership.

One popular view is that direct discrimination is wrong because the discriminator treats persons on the basis of traits that are immutable and not under the control of the individual possessing them. Thus, Kahlenberg asserts that racial discrimination is unjust because race is such an immutable trait (1996: 54–55). And discrimination based on many forms of disability would seem to fit this view. But Boxill rejects the view, arguing that there are instances in which it is justifiable to treat persons based on features that are beyond their control (1992: 12–17). Denying blind people a driver’s license is not an injustice to them. Moreover, Boxill notes that, if scientists developed a drug that could change a person’s skin color, it would still be unjust to discriminate against people because of their color (1992: 16). Additionally, a paradigmatic ground of discrimination, a person’s religion, is not an immutable trait, nor are some forms of disability. Thus, there are serious problems with the popular view that direct discrimination is wrong due to the immutable nature of the traits on the basis of which the discriminator treats the persons whom he wrongs.

A second view holds that direct discrimination is wrong because it treats persons on the basis of inaccurate stereotypes. When the state of Virginia defended the male-only admissions policy of the Virginia Military Institute (VMI), it introduced expert testimony that there was a strong correlation between sex and the capacity to benefit from the highly disciplined and competitive educational atmosphere of the school: those who benefited from such an atmosphere were, for the most part, men, while women had a strong tendency to thrive in a quite different, cooperative educational environment. This defense involved the premise that the school’s admissions policy was not discriminatory because the policy relied on accurate generalizations about men and women. And in its ruling against VMI, the Supreme Court held that a public policy “must not rely on overbroad generalizations about the different talents, capacities, or preferences of males and females” ( U.S. v. Virginia 1996: 533). But the Court went on to argue that “generalizations about ‘the way women are’, estimates of what is appropriate for most women , no longer justify denying opportunity to women whose talent and capacity place them outside the average description” (550; ital. in original).

The Court’s reasoning implies that, even if gender were a very good predictor of the qualities needed to benefit from and be successful at the school, VMI’s admissions policy would still be discriminatory (Schauer 2003: 137–141). Accordingly, on the Court’s view, direct discrimination based on largely accurate gender generalizations can still be wrongful. For example, consider a fire department whose policy is to reject all women applicants for the job of fire fighter, on the grounds that the vast majority of persons having the requisite physical strength for the job are men and that the policy saves the department the time and expense of testing persons unlikely to meet the requirement. Even if the gender generalization underlying the policy is accurate, it is clear that the policy amounts to wrongful discrimination against women, depriving them of their right to equal employment opportunity. Thus, the wrongfulness cannot be explained simply by saying that the generalization is inaccurate.

A third view is that direct discrimination is wrong because it is an arbitrary or irrational way to treat persons. In other words, direct discrimination imposes a disadvantage on a person for a reason that is not a good one, viz., that the person is a member of a certain salient social group. Accordingly, Cotter argues that such discrimination treats people unequally “without rational justification” (2006: 10). Kekes expresses a similar view in condemning race-based affirmative action as “arbitrary” (1995: 200), and, in the same vein, Flew argues that racism is unjust because it treats persons on the basis of traits that “are strictly superficial and properly irrelevant to all, or almost all, questions of social status and employability” (1990: 63–64).

However, many thinkers reject this third view of the wrongness of direct discrimination. Gardner argues that there is no “across-the-board-duty to be rational, so our irrationality as such wrongs no one.” Additionally, Gardner contends that “there patently can be reasons, under some conditions, to discriminate on grounds of race or sex,” even though the conduct in question is wrongful (1998: 168). For example, a restaurant owner might rationally refuse to serve blacks if most of his customers are white racists who would stop patronizing the establishment if blacks were served (1998: 168 and 182). The owner’s actions would be wrong and would amount to a rational form of discrimination. Additionally, Wasserstrom argues that the principle that persons ought not to be treated on the basis of morally arbitrary features cannot grasp the fundamental wrong of direct racial discrimination, because the principle is “too contextually isolated” from the actual features of a society in which many people have racist attitudes (1995: 161). For Wasserstrom, the wrong of racial discrimination cannot be separated from the fact that such discrimination manifests an attitude that the members of certain races are intellectually and morally inferior to the rest of the population.

A fourth view is that direct discrimination is wrong because it fails to treat individuals based on their merits. Thus, Hook argues that hiring decisions based on race, sex, religion and other social categories are wrong because such decisions should be based on who “is best qualified for the post” (1995: 146). In a similar vein, Goldman argues that discriminatory practices are wrong because “the most competent individuals have prima facie rights to positions” (1979: 34).

Opponents of this merit-based view note that it is often highly contestable who the “best qualified” really is, because the criteria determining qualifications are typically vague and do not come with weights attached to them (Wasserman 1998: 807). Additionally, Cavanagh suggests that “hiring on merit has more to do with efficiency than fairness” (2002: 20). Cavanagh also notes that a merit principle cannot explain what is distinctively wrong about an employer who discriminates against blacks because the employer thinks that they are morally or intellectually inferior. The merit approach “makes [the employer’s] behavior look the same as any other way of treating people … non-meritocratically” (2002: 24–25).

A fifth view, defended by Arneson and Lippert-Rasmussen, explains the wrongfulness of discrimination in terms of a certain consequentialist moral theory. The theory rests on the principle that every action ought to maximize overall moral value and incorporates the idea that benefits accruing to persons who are at a lower level of well-being count more toward overall moral value than benefits to those at a higher level. Additionally, the view holds that benefits to persons who are more deserving of them count more than benefits to those who are less deserving (Arneson 1999: 239–40 and Lippert-Rasmussen 2014: 165–83). This approach holds that discrimination is wrong because it violates a rule that would be part of the social morality that maximizes overall moral value. Thus, Arneson writes that his view “can possibly defend nondiscrimination and equal opportunity norms as part of the best consequentialist public morality” (2013: 99). However, for many thinkers, the view will fail to adequately capture a key aspect of discrimination, viz., that discrimination is not simply wrong but that it is a wrong to the persons who are discriminated against . One might argue in defense of Arneson that those who are victimized by discrimination can claim that they deserve the opportunity that is denied them, but philosophers like Cavanagh, who object to the merit approach, will have the same objections to such a defense (Cavanagh 2002: 20 and 24–25).

A sixth view, developed by Moreau, regards direct discrimination as wrong because it violates the equal entitlement each person has to freedom. In particular, she contends that “the interest that is injured by discrimination is our interest in … deliberative freedoms: that is, 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” (2010: 147). Normatively extraneous features are “traits that we believe persons should not have to factor into their deliberations … as costs .” For example, “people should not be constrained by the social costs of being one race rather than another when they deliberate about such questions as what job to take or where to live” (2010: 149).

Yet, it is unclear that Moreau’s account gets to the bottom of what is wrong with discrimination. One might object, following the criticisms leveled by Wasserstrom and Cavanagh at the arbitrariness and merit accounts, respectively, that the idea of a normatively extraneous feature is too abstract to capture what makes racial discrimination a paradigmatic form of direct discrimination. There are reasons that justify our belief “that persons should not have to factor [race] into their deliberations … as costs ,” and those reasons seem to be connected to the idea that racial discrimination treats persons of a certain race as having a diminished or degraded moral status as compared to individuals belonging to other races. The wrong of racial and other forms of discrimination seems better illuminated by understanding it in terms of such degraded status than in terms of the idea of normatively extraneous features.

A seventh view, developed by Hellman, holds that “discrimination is wrong because it is demeaning” (2018: 99). On her account, an act that is demeaning in the relevant way is one that “expresses that a person or group is of lower [moral] status” and is performed by an agent who has “sufficient social power for the expression to have force” (2018: 102). For example, it is demeaning, she argues, for an employer to require female employees to wear cosmetics because such a requirement “conveys the idea that a woman’s body is for adornment and enjoyment by others” (2008: 42). Shin proposes a similar account in his discussion of equal protection, arguing that “to characterize an action as unequal treatment is to register a certain objection as to what, in view of its rationale, the action expresses” (2009: 170). Offending actions are ones that treat a person “as though that individual belonged to some class of individuals that was less entitled to right treatment than anyone else” (2009:169). And this seventh view of what makes discrimination wrongful is reflected in the legal case Obergefell v. Hodges , decided by the U.S. Supreme Court and declaring unconstitutional laws prohibiting same-sex marriage. In his opinion for the Court, Justice Kennedy wrote that “the necessary consequence [of such laws] is to put the imprimatur of the State itself on an exclusion that soon demeans or stigmatizes those whose own liberty is then denied. Under the Constitution, same-sex couples seek in marriage the same legal treatment as opposite-sex couples, and it would disparage their choices and diminish their personhood to deny them this right” (2015: Slip Opinion at 19).

Closely related to Hellman’s account is an eighth view, holding that direct discrimination is wrong on account of its connection to prejudice, where prejudice is understood as an attitude that regards the members of a salient group, qua members, as not entitled to as much respect or concern as the members of other salient groups. Prejudice can involve feelings of hostility, antipathy, or indifference, as well as a belief in the inferior morals, intellect, or skills of the targeted group. Returning to the case of the Roma who were excluded by the policy of a bar, we could say that the policy was discriminatory because it was the expression of prejudice against the Roma, whereas a bar’s policy of excluding men from the women’s restroom would fail to be discriminatory because it would not be an expression of prejudice.

Ely defends a version of this eighth view, holding that discriminatory acts are those that are motivated by prejudice (1980: 153–159). Dworkin has formulated an alternative version, arguing that discriminatory acts are those that could be justified only if some prejudiced belief were correct. The absence of a “prejudice-free justification” thus makes a law or policy discriminatory (1985: 66).

The eighth view, along with the accounts of Hellman and Shin, rest on the intuitively attractive idea that the wrongfulness of direct discrimination is tied to its denial of the equal moral status of persons. The idea is at the center of Eidelson’s account, which holds that “acts of discrimination are intrinsically wrong when and because they manifest a failure to show the discriminatees the respect that is due them as persons” (2015: 7). Eidelson then disaggregates two dimensions of personhood: all persons are 1) “of [intrinsic] value and equally so” and 2) “autonomous agents” (2015: 79), shaping their own lives through their choices. Discrimination can violate either or both of these dimensions, leading Eidelson to describe his account as a “pluralistic view” (2015: 19; cf. Beeghly on “hybrid” theories, 2018: 95). Thus, a physician who refuses to treat would-be patients due to their race fails to recognize and appropriately respond to their equal intrinsic value, and a fire department that automatically rejects women who apply to be fire fighters violates the women’s autonomy by failing to make reasonable efforts to determine whether they have endeavored to develop the requisite physical strength.

Eidelson’s account explicitly dispenses with the social salience requirement, instead requiring only that the discriminator be responding to some perceived difference of whatever kind between the victim and other people. However, it is not clear that this approach can draw a viable line between wrongful acts of discrimination, on the one hand, and wrongful acts not helpfully characterized as “discrimination,” on the other. Murderers fail to respect the personhood of their victims, and most murders involve some perception of difference between the victim and others. But murders are typically regarded as acts of discrimination only when they are “hate crimes” connected to the victim’s membership in some salient social group. So Eidelson’s account seems overinclusive. Yet, Eidelson can reply that any account that incorporates the social salience requirement will be underinclusive, because it will fail to count as discrimination the actions of an employer who hires workers on the basis of hair color in a society where hair color is not socially salient (2018: 28–30).

At this point, we should step back and ask: Why do we need the (moralized) idea of discrimination in the first place? What is the value of having it? For Eidelson, its value seems to reside in picking out certain wrongs, quite apart from any connection those wrongs might, or might not, have to socially systemic injustices. But we have concepts for murder and other wrongs against personhood, and, if we abstract from socially systemic considerations, the fact that the wrongs involve distinguishing among persons does not appear to carry much moral significance in typical cases. If I steal from you rather than your neighbor because you have taken fewer precautions against theft, then I have wrongfully shown disrespect for your autonomy, but my having discriminated between you and your neighbor seems beside the point, morally speaking.

For defenders of the social salience requirement, the value of the idea of discrimination is that it can be used to pick out and highlight injustices that track socially salient categories. And a strong reason for having a concept that captures such injustices is that they are the among the most widespread and serious over the course of history (see section 6 below). From this perspective, Eidelson’s hypothetical case of the idiosyncratic employer who discriminates on the basis of hair color should not dictate how the core of the moralized concept of discrimination is constructed or construed but rather should be regarded as peripheral to the central reason for having a concept of discrimination. Additionally, as we will see in the next section, this perspective casts light on why the idea of indirect discrimination is a valuable part of our moral thinking.

The most egregious forms of indirect discrimination are typically structural, due to the pervasive impact of a society’s basic institutions on the life-prospects of its members (Rawls 1971: 7). Indirect discrimination is structural when the rules and norms of society consistently produce disproportionately disadvantageous outcomes for the members of a certain group, relative to the other groups in society, the outcomes are unjust to the members of the disadvantaged group, and the production of the outcomes is to be explained by the group membership of those individuals. Cass Sunstein nicely captures the wrong of this form of indirect discrimination in the course of explaining his antidiscrimination principle, which he calls the “anticaste principle.” He writes, “The motivating idea [for the anticaste principle] is that without good reason, social and legal structures should not turn differences that are both highly visible and irrelevant from the moral point of view into systematic social disadvantages. A systematic disadvantage is one that operates along standard and predictable lines in multiple and important spheres of life” (1994: 2429). In a similar vein, Catharine MacKinnon finds structural discrimination against women to be intolerable because it consists of “the systematic relegation of an entire group of people to a condition of inferiority” (1987: 41).

Two related wrongs belonging to structural discrimination can be distinguished. First is the wrong that consists of society’s major institutions imposing, without adequate justification, relative disadvantages on persons belonging to certain salient social groups. Accordingly, it is wrong for society’s basic rules to deny to women or to racial or religious minorities opportunities for personal freedom, development, and flourishing equal to those that men or racial and religious majorities enjoy. Second is the wrong of placing the members of a salient social group in a position of vulnerability to exploitation and domination as a result of the denial of equal opportunities and the imposition of other kinds of relative disadvantage. Accordingly, it is wrong for a society to make women vulnerable to sexual exploitation and domination at the hands of men by the imposition of various economic and social disadvantages relative to men.

In contrast, the wrongs of non-structural forms of indirect discrimination seem to be dependent on structural (or direct) discrimination. Consider the Griggs case. The company’s promotion policy was not part of the wrong involved in society’s basic institutions imposing relative disadvantages on blacks. But the policy did have some connection to structural racial discrimination and to the widespread direct discrimination against blacks that existed prior to and contemporaneous with the policy. The policy helped to perpetuate the unjust disadvantages that were due to such structural and direct discrimination, even though the policy was not needed to serve any legitimate business purpose, and that was why the policy was wrong. Or at least that is what the proponents of the idea of indirect discrimination appear to have in mind when they talk about non-structural forms of indirect discrimination.

Are the wrongs of indirect discrimination sufficiently similar to the wrongs of direct discrimination that it is reasonable to say that they are, in fact, two different types of one and the same wrong? We have seen that the accounts of the wrong of direct discrimination are many and various. But abstracting from those differences, critics of the idea of indirect discrimination might argue that discrimination is essentially a process-based wrong, rather than an outcome-based one, and that only direct discrimination is process-based. In other words, only with direct discrimination is there a defect in how some outcome is brought about, rather than in what the outcome itself is. On this view, discriminating against people is similar to having someone who has been bribed serve as a judge in an ice-skating competition: just as the biased judging taints the process by which places are awarded in the competition, discrimination taints the process by which opportunities and other social goods get distributed among the members of society.

However, one can understand indirect discrimination as involving process-based wrongs, although the wrongs do not necessarily occur at the retail level of the practical reasoning of specific agents. Consider the structural form of indirect discrimination. Disproportionately disadvantageous outcomes do not, by themselves, amount to structural discrimination, even when those outcomes fall on the shoulders of the members of a salient social group such as women or racial or religious minorities. There must also be a linkage between membership in the group and the disadvantageous outcomes: group membership must help explain why the disproportionately disadvantageous outcomes fall where they do. This explanation will proceed at the wholesale level of macro-social facts about the population and the various groups that constitute it. But the requirement of a linkage shows that how the disproportionate outcomes are brought about is essential to the existence of structural discrimination. There must be social processes at work that, as Sunstein puts its, “turn differences that are both highly visible and irrelevant from the moral point of view into systematic social disadvantages” (1994: 2429). It is true that the differences do not need to be literally visible; they need only be socially salient. But the main point is that there is something morally wrong with social processes that consistently but avoidably turn such differences into relative disadvantages for the members of salient groups, such as women or racial or religious groups. A parallel is thereby established with direct discrimination, in which there is something morally wrong with a practical-reasoning process that treats sex, race, or religion as grounds for treating persons as having a degraded or diminished moral status.

With the non-structural form of indirect discrimination, the parallel to the wrong of direct discrimination is even stronger, because the morally flawed process does occur at the retail level. In Griggs , the company’s decision to use certain exams to determine promotions contributed to the unjust disadvantages suffered by blacks from structural and direct discrimination. Yet, the use of the exams was apparently not necessary to determine who could best perform the jobs in question or to meet any other legitimate purpose of the business. It is plausible to say, then, that the company’s decision process wrongly counted for nothing the promotion policy’s contribution to the perpetuation and even exacerbation of unjust disadvantages from which blacks already suffered. This process-based wrong is at the level of a specific agent, albeit a collective agent. The difference with direct discrimination is that it is a moral failure of omission, i.e., failing to take appropriate account of the impact of the promotion policy on blacks, rather than a failure of commission, such as deliberately excluding blacks from better-paying positions. In either case, though, an agent has engaged in a morally flawed process of practical reasoning in which the flaw concerns the role that considerations of salient group membership play.

There is a case to be made, then, that the wrongs of indirect discrimination, structural and non-structural, are importantly parallel to those of direct discrimination. The case will look less convincing to Eidelson (2015: 28–30) and others who think of (moralized) discrimination as fundamentally a retail-level wrong with no necessary connection to socially-salient groups. For those thinkers, it might be an injustice if the basic structure of a society operates so that certain socially-salient groups lack equality of opportunity, but the injustice is not necessarily a matter of discrimination. Yet, for thinkers who would contend that the value of the idea of discrimination derives from the fact that it can pick out systemic wrongs linked in a certain way to socially-salient groups, then direct and indirect discrimination represent distinct but parallel versions of the same type of wrong, and the term ‘indirect discrimination’ is not simply “a piece of legal jargon” (Eidelson 2015: 19) but a valuable term in our moral lexicon.

According to the account on offer in this entry, discrimination wrongfully imposes relative disadvantages or deprivations on persons based on their membership in some salient social group. But which salient groups count for the purpose of determining whether an act is an act of discrimination? This question is at the heart of many heated political and legal disputes, such as the controversies over the rights of gays and trans persons. The question is also central to a matter that is less politically prominent than such disputes but which has important political and philosophical implications. The question is whether or not the members of socially dominant groups can, in principle, be victims of discrimination. It is sometimes said that, in the United States and other Western countries, whites cannot really be discriminated against on account of their race, because whites are the socially dominant racial group whose members are systematically advantaged by their being white. Thus, in his account of racial discrimination, Scanlon acknowledges that his view entails that, in the U.S., at least, whites can discriminate against blacks but not vice-versa. He holds that discrimination is “unidirectional, [applying] only to actions that disadvantage members of a group that has been subject to widespread denigrations and exclusion.” This implication derives from his claim that it is “crucial to racial discrimination … that the prejudicial judgments it involves are not just the idiosyncratic attitudes of a particular agent but are widely shared in the society in question and commonly expressed and acted on in ways that have serious consequences” (2008: 73–74). The idea that discrimination is unidirectional is also implied by Fiss’s understanding of discrimination in terms of “the perpetual subordination” of “specially disadvantaged groups …[whose] political power is severely circumscribed” (1976: 154–155).

Although is it undeniable that the members of socially dominant groups typically enjoy a host of unfair advantages, it might be a mistake to hold that such persons cannot be victims of discrimination. Belief in the moral inferiority of the members of other racial groups is not exclusive to dominant groups. Although he subsequently repudiated the view, Malcolm X famously regarded whites as a race of devils, and the belief was not some idiosyncrasy of his but rather a doctrine of the Nation of Islam. Moreover, subordinate group members are sometimes in position to deny members of a dominant group employment or other valuable opportunities. When such opportunities are denied based on a belief in the moral inferiority of the dominant group, it would seem that the dominant group members have been discriminated against.

Scanlon and others might argue that the unidirectional view fits better than a bidirectional one with the main reason for having a concept of discrimination, viz., to pick out systemic injustices linked to membership in a socially salient group. The discriminatory actions of dominant group members typically combine to create such injustices, while actions of subordinate group members wrongly disfavoring on the basis of prejudiced attitudes persons in the dominant group fail to combine in that way.

However, history shows that there are certain kinds of social identities on whose basis persons have often been condemned as moral inferiors and victimized by serious systemic injustice. Those identities are tied to race, religion, race, nationality, ethnicity, and sexual orientation, among other social categories incorporated into reasonable antidiscrimination principles. Wrongs done to persons in a dominant group on the ground that their group consists of morally inferior beings is not the same as the discriminatory wrongs that combine to create serious systemic injustice, but there is more than a passing resemblance between the two sets of wrongs. And shifts in the relative power positions of groups in a society can readily transmute wrongs against a dominant group into ones against a subordinate group, especially when the wrongs are driven by beliefs about groups moral inferiority/superiority. Perhaps, then, we should say that the central cases of discrimination are ones perpetrated against subordinate group members but that dominant groups members can also be discriminated against, even though wrongs of the latter sort do not typically combine to form systemic injustices at the broad social level.

Perhaps the most heated of contemporary debates over the question of which social groups count for purposes of determining whether or not an act is an act of discrimination are those concerning sexual orientation and gender presentation. Many persons hold the view that it is discrimination whenever LGBTQ persons are denied the same set of legal rights and powers that heterosexual and cis-gender persons have, but others reject such a view. Philosophers and political theorists can be found on both sides of this divide, although the predominant view among such thinkers is that it is discriminatory to deny LGBTQ persons the same legal rights and powers that others enjoy (Macedo 1996; Corvino 2017; Mikkola 2018; Brief of Philosophy Professors 2019, and, dissenting, Finnis 1997 and Anderson and Girgis 2017). These debates are ultimately ones of moral principle, resting on the question of whether government wrongs LGBTQ persons if it denies them any such rights or powers. The concept of discrimination cannot, by itself, settle the question, because the concept only tells us that it is properly applied to the imposition of wrongful disadvantages on account of salient group membership. The concept does not specify whether it is wrongful to impose disadvantages on persons on account of their sexual orientation, gender presentation, or any other particular social category. Substantive moral reasoning is needed to address the matter (see section 8 below).

The concept of discrimination picks out a kind of moral wrong that is a function of the salient social group membership of the person wronged: persons are treated as though they had diminished or degraded moral status on account of their group membership, or they are, because of their group membership and the relative disadvantages that they suffer due to that membership, made vulnerable to domination and oppression. But why have such a concept? Why not simply have the concepts of domination, oppression, and degrading treatment, abstracting from whether or not the reasons for such wrongs involve group membership?

Until the middle of the 19 th century, critical moral reflection and discussion proceeded largely without the concept of discrimination. But over the course of the first half of the 20th century, moral reflection became increasingly sensitive to the fact that many, even most, of the large-scale injustices in history had a group-based structure: certain members of society were identified by others as belonging to a particular salient group; the group members were consistently denigrated and demeaned by the rest of society and by its official organs; and many serious relative disadvantages connected to this denigration and demeaning, such as material deprivation and extreme restrictions on liberty, were imposed on the members of the denigrated group. It is this historical reality, apparently deeply rooted in human social life and in the tendency of humans to form in-groups and out-groups, that gives the concept of discrimination its point and its usefulness. The concept highlights the group-structure of those unjust deprivations and restrictions.

At the same time, the group structure of these injustices does not mean that the group as such is the party that is wronged; rather, the wrongs are ultimately wrongs to the individual persons making up the group. Accordingly, the concept of discrimination has become a useful tool for representing many serious wrongs, while avoiding the implication that these wrongs are ultimately done to the groups as such.

However, this understanding of the significance of the concept of discrimination is challenged by Young, who claims that the concept is inadequate for capturing group-based wrongs. She argues that the concept “tends to present the injustices groups suffer as aberrant, the exception rather than the rule.” Accordingly, she contends that “[i]f one focuses on discrimination as the primary wrong that groups suffer, then the more profound wrongs of exploitation, marginalization, powerlessness, cultural imperialism, and violence that we still suffer go undiscussed and unaddressed.” (1990: 196–97)

Nonetheless, contra Young’s understanding, discrimination against the members of a group can be, and often is, systemic. The reason is that wrongs against individuals on account of their group membership, especially when perpetrated by members of dominant groups, are often not aberrant but form broad social patterns. Accordingly, the idea of discrimination can capture the systemic wrongs to which Young refers, while preserving the key moral thought that the wrongs are done to individuals. Thus, discrimination typically involves exploitation, marginalization, powerlessness and so on, where those wrongs are perpetrated against individuals and, at the same time, track salient social categories.

Yet, Young is right insofar as she is claiming that systemic wrongs can persist even as direct discrimination recedes: indirect discrimination can, as we have seen, amplify and perpetuate the wrongful harms of diminishing direct discrimination. Additionally, Young correctly suggests that the idea of discrimination is too weak to adequately capture certain sorts of extreme systemic maltreatment and abuse. When disadvantageous treatment exceeds a certain level of severity, it is no longer suitable simply to speak of discrimination. Enslavement and genocide are forms of wrongful discrimination, but because of the extremity of the mistreatment they involve, it would be morally obtuse to characterize them as discrimination and leave the matter at that. Clear-headed moral thinking demands that their extremity be registered in how they are characterized, and the idea of discrimination is not, by itself, equipped for the task. Accordingly, the invention of the term ‘genocide’ by Raphael Lemkin (1944 [1973: 79]) and the opprobrium that later attached to it were important steps forward in understanding the distinctions among the different ways in which humans abuse one another on the basis of the salient groups to which they belong.

Kimberlé Crenshaw (1998 [1989]) introduced the idea of intersectionality in her account of the distinctive form of discrimination faced by black women. Intersectionality refers to the fact that one and the same person can belong to several distinct groups, each of whose members are victimized by widespread discrimination. This overlapping membership can generate experiences of discrimination that are very different from those of persons who belong to just one, or the other, of the groups. Thus, Crenshaw argues that “any analysis that does not take intersectionality into account cannot sufficiently address the particular manner in which Black women are subordinated” (1998: 315).

Crenshaw’s idea of intersectionality applies beyond race and gender to cover any social groups against which discrimination is directed: discrimination is inflected in different ways depending on the particular combination of social groups to which those persons discriminated against belong. And one implication of intersectionality is that the disadvantages suffered by some persons who are discriminated against on account of belonging to a certain group might be offset, partially or fully, by advantages those same persons gain by being discriminated in favor of due to their belonging to other groups. As Crenshaw notes, women who are wealthy and white are “race- and class-privileged,” even as they are disadvantaged by their gender (1998: 314).

The idea of intersectionality threatens to destabilize the concept of discrimination. The idea highlights what is problematic about any account of discrimination that abstracts from how different salient identities converge to shape the experiences of persons. But, taken to the hilt, the idea of intersectionality might appear to undermine any feasible account of discrimination. Reflection on Crenshaw’s own intersectional account illustrates the point: she examines the intersection of race and gender but abstracts from other salient social identities, such as disability status, sexual orientation, and religion. Any of those additional identities can and do converge with race and gender to form distinctive experiences of discrimination, and so abstracting from those identities seems problematic from the perspective that the idea of intersectionality opens to us. Yet, no feasible treatment can take into account all of those identities and the many more socially salient identities that persons have in contemporary societies.

Nonetheless, judgments about discrimination can and do reveal genuine wrongs that persons suffer due to their salient group membership and expose actual patterns of disadvantage and deprivation that amount to systemic injustices against the members of certain salient groups. It is not necessary to take account of everything relevant to a phenomenon in order to understand and represent important aspects of it. Thus, notwithstanding the complications introduced by intersectionality, judgments about direct and indirect discrimination can tell us something important about who is wrongfully disfavored, and who is wrongfully favored, by the actions of individual and collective agents and by the rules of society’s major institutions.

Like the right against discrimination, the right of religious liberty is enshrined in many domestic and international legal documents. Yet, the two rights often seem to be in conflict with each other. For claims of religious liberty are frequently made by persons who wish to engage in activities that appear to amount to discrimination. Of particular importance are cases in which religious institutions and religiously-motivated individuals claim to be exempt from the requirements of antidiscrimination laws.

Claims of religious exemption to antidiscrimination laws have recently become the center of political and legal controversy in the U.S. as a result of the Obergefell case, in which the Supreme Court found a constitutional right to same-sex marriage. However, questions regarding the legal and moral validity of religious exemptions to such laws extend well beyond the issue of same-sex marriage. Moreover, many liberal thinkers who support antidiscrimination laws balk at the idea that the laws ought to be applied willy-nilly to all religious institutions and religiously-motivated persons (Barry 2001: 174–76; Eisgruber and Sager 2007: 65; Greenawalt 1998: 118; Nussbaum 1999: 114; Galston 2002: 111; Laborde 2017: 175–90).

In the Hosanna-Tabor case (2012), the U.S. Supreme Court unanimously held that, under the Constitution, there was a “ministerial exception” immunizing religious organizations from lawsuits brought against them by employees claiming that they had been illegally discriminated against by the organization. The exception applies in the paradigmatic case to employees who perform religious functions, such as ministers and priests, but the Court in Hosanna-Tabor ruled that the exception also applied in the case of a church employee whose job was the teaching of secular subjects. The employee had brought her lawsuit under a statute prohibiting employment discrimination on the basis of disability. The Court held that the church was immune to the suit.

Chambers rejects the ministerial exception, even when it is limited to employees who perform spiritual functions. Accordingly, she argues that the Roman Catholic Church should be legally prohibited, on the ground of “the fundamental value of gender equality” (2008: 141), from ordaining only men. She points to the harms suffered by women who wish to become priests but also the damage done to children who are taught by their Church that “women are not fit to lead their fellow worshippers” (141). And Chambers contends that “gender equality is … of sufficient importance to merit [legal] intervention” (144) in a religious organization’s choice of spiritual leaders.

By contrast, Laborde contends that “the government cannot [legitimately] force the Roman Catholic Church to ordain female clergy, as long as the established doctrine of the church is that only men can be priests” (2017: 180). She argues that, if a certain group is a voluntary association “that individuals join to pursue a conception of the good that is central to their identity,” then the group has a valid claim to “some immunity from the reach of antidiscrimination legislation” (174). Such immunity enables the members “to live with integrity,” i.e., to live in accordance with “their deep commitments and beliefs” (174). Laborde adds that any group claiming an exemption from antidiscrimination law can be legitimately required to openly profess the discriminatory doctrine that is the basis for its claim.

At the same time, Laborde rejects the scope of the ministerial exception as presented in Hosanna-Tabor . She contends that the Court’s ruling grants religious groups “an exorbitant right” (177) that exceeds their valid moral claim to choose their own leaders and members. Contra the ruling, Laborde does not think that the claim holds against the teachers of secular subjects at church schools or any other employees whose jobs do not consist in religious work. Laborde agrees with the Court that the secular judiciary should not address theological questions, but she rejects the Court’s view that it is beyond the jurisdiction of the judiciary to examine whether a proffered non-discriminatory theological reason for an employment decision is merely a pretext for some hidden discriminatory motive.

Watson and Hartley also reject Chamber’s view that the Catholic Church should be legally forced to ordain women, arguing that her view does not hold for a pluralist society in which a church that refuses to ordain women is “one among many” (2018: 123), and “varied views about sex and gender” (124) are held across the society’s religious institutions. Watson and Hartley write that the doctrine of the male-only priesthood “is not benign when it comes to the status of women as free and equal citizens, but its affect is blunted in the background culture by various other views ” (124).

Claims for religious exemptions from antidiscrimination laws have also been made, not just by organizations, but by individuals acting on the basis of their faith. Watson and Hartley consider a case in which a wedding vendor refuses her services to same-sex couples, invoking her religious belief that same-sex relationships are inherently sinful (cf. Masterpiece Cakeshop : 2018). The vendor claims an exemption from a law that prohibits discrimination on the basis of sexual orientation. Watson and Hartley argue that such an exemption is illegitimate, even if same-sex couples can avail themselves of the services of other vendors in the area. The vendor’s claim to an exemption is a violation of the reciprocal respect that each citizen owes their fellow citizens, because the vendor is asking government to act in a way that cannot be justified to persons in same-sex relationships as equal citizens. In the view of Watson and Hartley, the claim to an exemption rests on the premise that same-sex relationships are inherently inferior to heterosexual ones. They argue that such a premise is not admissible as a valid reason for the policies of government, which, as a matter of justice, must justify its actions to all its citizens in a way that respects their equality. And it is not reasonable to think that anyone in a same-sex relationship can accept the premise of inferiority. More generally, Watson and Hartley contend that “allowing public discrimination on the basis of factors such as sexual orientation, sex, or race creates a kind of second-class citizenship” (2018: 117-118), which violates the demands of justice.

Vallier develops an approach that is more accommodating of religious exemptions. He writes that exemptions are justified “in a wide array of cases,” perhaps including that of “bakers [of wedding cakes] who wish to deny service to homosexual couples on religious grounds” (2016: 17). Vallier explains that the bakers have a reason, from their point of view, to oppose an antidiscrimination law that protects same-sex couples. Moreover, the reason is both intelligible to any reasonable member of the public, and, because the reason is rooted in “projects and principles that possess great normative weight” (14) for the bakers, it is sufficient from their perspective to reject the law as applied to them. On Vallier’s account, the bakers, then, merit an exemption, as long as the exemption “does not impose significant costs on other parties that require redress” (3).

Vallier understands that many people will argue that the exemption does in fact impose significant harms on same-sex couples denied services afforded heterosexual couples, but he responds to that argument by citing “more traditional liberal views” on which “a denial of service will not count as harmful because, in nearly all of the relevant cases, gay and lesbian couples have dozens of affordable alternative venues to purchase wedding cakes” (18).

Watson and Hartley reject the “more traditional liberal views”on the ground that, even if there are alternative venues at which same-sex couples can be served, the couples are still treated as second-class citizens, because they are denied on grounds of the alleged inferiority of their partnership the full range of services offered to the public. Vallier might reply that equal citizenship is secured as long as the couples have alternative venues, but it is not clear how convincing such a reply is, given his admission that the actions of the bakers “can stigmatize homosexual couples through their denial of service” (17). It would seem that the stigma amounts to a stamp of inferiority, publicly-enacted through exclusionary actions and affixed to persons in same-sex partnerships, regardless of the availability to them of alternative venues.

At the same time, Vallier might argue that his analysis of the case of the bakers is on all fours with Watson and Hartley’s account of the male-only priesthood case, in which they contend that an exemption is legitimate: the effect of the bakers’ views on same-sex couples, he might say, “is blunted in the background culture by various other views” (Watson and Hartley 2018: 124) and by the availability of alternative venues for the couples.

However, Watson and Hartley would reply that there is an important distinction between a church, which is a “private association, composed of individuals who affirm, roughly, the same doctrine,” while a bake shop is a “business of public accommodation” (125). Yet, the question arises: If the social effects on gender inequality of the Catholic Church’s male-only priesthood can be sufficiently blunted by the background culture, why are the parallel effects of anti-gay bake shops on the equal citizenship of gays not likewise blunted?

It seems that, for Watson and Hartley, the decisive consideration in the bake shop/wedding vendor cases is not a matter of causal effects on society but rather of how persons are treated in the public sphere, where citizens owe one another treatment as free and equal persons. Watson and Hartley regard the bake shop and all other commercial enterprises that offer goods and services to the general public as belonging to the public sphere, and they contend that the denial of services on grounds of sexual orientation violates what citizens owe one another in that sphere, because such a denial constitutes treating citizens in same-sex partnerships as inferior to citizens in heterosexual ones.

Vallier’s view requires a different account of what citizens owe each other. The “more traditional liberal views” to which he refers contend that commercial enterprises should be placed in the private sphere and that antidiscrimination laws applying to privately-owned businesses are thereby illegitimate (see Epstein 1995 and the Civil Rights Cases 1883). But Vallier does not appear to embrace that aspect of the traditional liberal views, instead arguing that the disparaging treatment of gays by the bakers is made permissible (in part) by the fact that gays can receive service at other bake shops. The underlying premise appears to be that it is not really a duty of citizens to treat one another as equals, even in the public sphere. For if the bakers did have a duty to treat all of their fellow citizens, including gays, as equals in that sphere, then the bakers could not be relieved of the duty on the ground that there were other citizen-bakers who did treat gays as equals. I am not morally licensed to treat you with disrespect if only there are many others who treat you respectfully. So the disagreement between Vallier and Watson/Hartley seems to come down to the issue of exactly what duties citizens owe one another, which in turn rests on the large question of what a society of free and equal citizens would look like.

The concept of discrimination provides a way of thinking about a certain kind of wrong that can be found in virtually every society and era. The wrong involves a group-based structure that works in combination with relative deprivations built around the structure. The deprivations are wrongful because they treat persons as having a degraded moral status, but also because the deprivations tend to make members of the group in question vulnerable to domination and oppression at the hands of those who occupy positions of relative advantage. It is true that there has been confusion attending the concept of discrimination, and there will long be debates about the best way to understand and apply it. However, the concept has proved to be a useful one for representing in thought and combating in action a kind of wrong that is deeply entrenched in human social relations.

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• Hellman, Deborah, 2008. When is Discrimination Wrong? , Cambridge, MA: Harvard University Press.
• –––, 2018. “Discrimination and Social Meaning,” in Lippert-Rasmussen (ed.) 2018, pp. 97–118.
• Hellman, Deborah and Sophia Moreau (eds.), 2013. Philosophical Foundations of Discrimination Law , Oxford: Oxford University Press.
• Holroyd, Jules, 2018. “The Social Psychology of Discrimination,” in Lippert-Rasmussen (ed.) 2018, pp. 381–93.
• Hook, Sidney, 1995. “Reverse Discrimination,” in Steven Cahn (ed.), The Affirmative Action Debate , New York: Routledge, pp. 145–152.
• Jones, Peter, 2017. “Religious Exemptions and Distributive Justice,” in Cécile Laborde and Aurélia Bardon (eds.), Religion in Liberal Political Philosophy , Oxford: Oxford University Press, pp. 163–76.
• Jost, John T., Laurie A. Rudman, Irene V. Blair, Dana R. Carney, Nilanjana Dasgupta, Jack Glaser, and Curtis D. Hardin, 2009. “The existence of implicit bias is beyond reasonable doubt,” Research in Organizational Behavior , 29: 39–69.
• Kahlenberg, Richard, 1996. The Remedy , New York: Basic Books.
• Kekes, John, 1995. “The Injustice of Affirmative Action Involving Preferential Treatment,” in Steven Cahn (ed.), The Affirmative Action Debate , New York: Routledge, pp. 293–304.
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• Lemkin, Raphael, 1944 [1973]. Axis Rule in Occupied Europe , New York: Howard Fertig.
• Lippert-Rasmussen, Kasper, 2006. “The Badness of Discrimination,” Ethical Theory and Moral Practice , 9: 167–185.
• –––, 2014. Born Free and Equal? , Oxford: Oxford University Press.
• Lippert-Rasmussen, Kasper (ed.), 2018, The Routledge Handbook of the Ethics of Discrimination , New York: Routledge.
• Macedo, Stephen, 1996. “Sexual Morality and the New Natural Law,” in R.P. George (ed.), Natural Law, Liberalism, and Morality , Oxford: Oxford University Press.
• MacKinnon, Catharine, 1979. Sexual Harassment of Working Women , New Haven: Yale University Press.
• –––, 1987. Feminism Unmodified , Cambridge, MA: Harvard University Press.
• Mikkola, Mari, 2018. “Discrimination and Trans Identities,” in Lippert-Rasmussen (ed.), 2018, pp. 287 –97.
• Moreau, Sophia, 2010. “What is Discrimination?” Philosophy and Public Affairs , 38: 143–179.
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• Shin, Patrick, 2009. “The Substantive Principle of Equal Treatment,” Legal Theory , 15: 149–172.
• –––, 2010. “Liability for Unconscious Discrimination? A Thought Experiment in the Theory of Employment Discrimination Law,” Hastings Law Journal , 62: 67–102.
• Sunstein, Cass, 1994. “The Anticaste Principle,” Michigan Law Review , 92: 2410–2455.
• Ture, Kwame and Charles V. Hamilton, 1992 [1967]. Black Power , New York: Vintage Books.
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• Vandenhole, Wouter, 2005. Non-Discrimination and Equality in the View of the UN Human Rights Treaty Bodies , Oxford: Intersentia.
• Watson, Lori and Christie Hartley, 2018. Equal Citizenship and Public Reason , New York: Oxford University Press.
• Wasserman, David, 1998. “Discrimination, Concept of,” in Ruth Chadwick (ed.), Encyclopedia of Applied Ethics , San Diego, CA: Academic Press, pp. 805–814.
• Wasserstrom, Richard, 1995. “Preferential Treatment, Color-Blindness, and the Evils of Racism,” in Steven Cahn (ed.), The Affirmative Action Debate , New York: Routledge, pp. 153–168.
• Wax, Amy, 2008, “The Discriminating Mind: Define It, Prove It,” Connecticut Law Review , 40: 979–1022.
• Young, Iris, 1990. Justice and the Politics of Difference , Princeton: Princeton University Press.

How to cite this entry . Preview the PDF version of this entry at the Friends of the SEP Society . Look up topics and thinkers related to this entry at the Internet Philosophy Ontology Project (InPhO). Enhanced bibliography for this entry at PhilPapers , with links to its database.

• Anti-discrimination Laws in the European Union
• Disability Discrimination Act (UK)
• Employment Discrimination Laws in the United States
• International Covenant on Civil and Political Rights
• International Convention on Economic, Social, and Cultural Rights

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Structural racism: what it is and how it works

Professor of Race and Education and Director of the Centre for Race, Education and Decoloniality in the Carnegie School of Education, Leeds Beckett University

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From the moment it was published, the UK’s Commission on Racial and Ethnic Disparities’ report was met with a media storm driven by both its supporters and detractors. Months later, amid continued division over the report’s position that racism isn’t pronounced in the UK, there’s still some confusion about what exactly some of the report’s buzzwords mean.

The terms “structural racism” and “institutional racism” are among many of the concepts that have been mentioned in relation to the report’s position on whether or not racism is ingrained in the UK.

But assessing the truth behind the Commission’s suggestion that these forms of racism aren’t factors in driving racial inequality first requires decoding these terms.

Structural and institutional racism

Defined initially by political activists Stokely Carmichael and Charles Vernon Hamilton in 1967, the concept of institutional racism came into the public sphere in 1999 through the Macpherson Inquiry into the racist murder of Black teenager Stephen Lawrence.

Institutional racism is defined as: “processes, attitudes and behaviour(s) which amount to discrimination through unwitting prejudice, ignorance, thoughtlessness and racist stereotyping which disadvantage minority ethnic people”.

As Sir William Macpherson, head of the Stephen Lawrence Inquiry, wrote at the time, it “persists because of the failure … to recognise and address its existence and causes by policy, example and leadership”.

Institutional and structural racism work hand in glove. Institutional racism relates to, for example, the institutions of education, criminal justice and health. Examples of institutional racism can include: actions (or inaction) within organisations such as the Home Office and the Windrush Scandal ; a school’s hair policy ; institutional processes such as stop and search, which discriminate against certain groups.

Structural racism refers to wider political and social disadvantages within society, such as higher rates of poverty for Black and Pakistani groups or high rates of death from COVID-19 among people of colour .

In plain terms, structural racism shapes and affects the lives, wellbeing and life chances of people of colour. It normalises historical, cultural and institutional practices that benefit white people and disadvantage people of colour. It also stealthily replicates the racial hierarchy established more than 400 years ago through slavery and colonialism, placing white people at the top and Black people at the bottom.

Read more: Learning about white privilege isn't harmful to white working class children – viewpoint

Structural racism is enforced through institutional systems like seemingly neutral recruitment policies, which lead to the exclusion of people of colour from organisations, positions of power and social prominence. It exists because of white supremacy : a pattern of beliefs, assumptions and behaviours which advance the interests of white people and influences decision-making to maintain their dominance.

White supremacy lies at the heart of how systems in society work. It’s the main reason behind inequalities such as the ethnic pay gap across many institutions, as well as fewer judges and university vice chancellors of colour.

How does structural racism work?

Structural racism exists in the social, economic, educational, and political systems in society. Many of the issues that come with it have been escalated by the pandemic, including the disproportionate deaths of people of colour from COVID-19.

These challenges have worsened because of existing structural racial inequalities which mean that Black and Pakistani communities are more likely to work in unskilled jobs . As a result, many have had to work through the pandemic as key workers, increasing their exposure and susceptibility to catching or dying from the virus.

In fact, large numbers of health workers of colour reported being too afraid to complain about the issues they faced, with some being “bullied and shamed” into seeing patients, despite having no PPE. Their exposure to these inequalities can’t be blamed on pessimism or class or culture, but the structures within which they worked.

Structural and institutional racism account for under-representation in many fields. These barriers are responsible for everything from the 4.9% ethnic pay gap between white medical consultants and medical consultants of colour, a lack of teachers of colour in schools , the 1% of Black professors in universities and the absence of medical training about skin conditions and how they present on black and brown skin. The examples are endless.

It would be easy to blame the people affected, but that would ignore how structural racism works. Black people, for example, can work exceptionally hard but still encounter significant barriers that can be directly traced to issues of structural racism.

It’s also tempting to believe that the success of a small selection of people of colour means that the same opportunities are available to all. The suggestion being that these gains are evidence of a meritocracy (the idea that people can gain power or success through hard work alone). But this ignores the invisible hurdles that on average make the likelihood of achievement for various communities of colour much slimmer than for white people.

Critical Race Theory (a concept devised by US legal scholars which explains that racism is so endemic in society that it can feel non-existent to those who aren’t targets of it) also debunks the idea that we live in a meritocracy . It describes meritocracy as a liberal construct designed to conceal the barriers which impede success for people of colour.

If structural and institutional racism can’t be explained away by the idea that people of colour simply don’t work hard enough, or are “overly pessimistic” about race, it’s apparent that society needs alternative solutions. One of which is accepting not only that racism exists, but that it’s much more far-reaching than it seems to white people. We can’t eradicate these forms of racism without courage, commitment and concerted efforts from those in positions of power, which in the UK especially includes action from the white majority.

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discrimination

Definition of discrimination

Did you know.

Discriminating Among Meanings of Discrimination

Discrimination has senses with neutral, positive, and negative connotations. On the one hand, it can refer to "the act (or power) of distinguishing" or to "good taste, refinement." These meanings, sometimes reinforced with modifiers (as in a fine or a nice discrimination ), stress an ability to perceive differences as an index of unusual intelligence. On the other hand, when the perception of difference is marked by invidious distinction or hostility, the word (often followed by against ) takes on very negative overtones, as in the senses "act of discriminating categorically rather than individually" ( discrimination against women, age discrimination ) and "a prejudiced outlook or course of action" (racial discrimination ). The original, neutral sense of discrimination , "the act of distinguishing," came into English by the early 17th century, followed by the positive one associated with superior discernment in the 18th century. Discrimination in the "prejudice" sense has been in use since the early 19th century, almost 200 years ago.

• demarcation
• discreteness
• distinction

discernment , discrimination , perception , penetration , insight , acumen mean a power to see what is not evident to the average mind.

discernment stresses accuracy (as in reading character or motives or appreciating art).

discrimination stresses the power to distinguish and select what is true or appropriate or excellent.

perception implies quick and often sympathetic discernment (as of shades of feeling).

penetration implies a searching mind that goes beyond what is obvious or superficial.

insight suggests depth of discernment coupled with understanding sympathy.

acumen implies characteristic penetration combined with keen practical judgment.

Examples of discrimination in a Sentence

These examples are programmatically compiled from various online sources to illustrate current usage of the word 'discrimination.' Any opinions expressed in the examples do not represent those of Merriam-Webster or its editors. Send us feedback about these examples.

Word History

see discriminate

1621, in the meaning defined at sense 3a

Phrases Containing discrimination

• make a discrimination
• positive discrimination
• anti - discrimination
• reverse discrimination

Dictionary Entries Near discrimination

discriminating duties

discrimination box

Cite this Entry

“Discrimination.” Merriam-Webster.com Dictionary , Merriam-Webster, https://www.merriam-webster.com/dictionary/discrimination. Accessed 31 Mar. 2024.

Kids Definition

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To illustrate, imagine four colleges, each making admissions decisions. Add to the equation a proposed categorical basis for different treatment that most Americans consider ordinarily unjust, namely race. Colleges A and B share this presumption. However, College A treats applicants for admission differently based on their race, whereas College B does not. Using the Proposed Definition of "discrimination," College A would say: "We discriminate among applicants for admission based on their race." And College B: "We do not discriminate among applicants for admission based on their race."

Colleges C and D, on the other hand, do not presume that race is ordinarily an unjust basis for different treatment. College C treats applicants for admission differently based on their race and College D does not. Using the Proposed Definition, neither school would mention "discrimination." College C would say: "We treat applicants for admission differently based on their race." And College D: "We do not treat applicants for admission differently based on their race."

Note that the phrase, considers unjust, in the Judgmental Definition is replaced in the Proposed Definition by presumes to be ordinarily unjust, which expresses a negative judgment that is less conclusive. A presumption against a categorical basis of treatment places the burden of proof on whoever would use it, but the presumption can be defeated if the reasons are strong enough. The force of the presumption and the strength of the reasons necessary to overthrow it vary with the basis and with the definer. This approach is partly suggested by the Supreme Court's interpretation of the Equal Protection Clause, according to which certain categorical bases of unequal treatment are regarded as "constitutionally suspect classifications," thus deserving stricter scrutiny. By and large, the same categories that are deemed constitutionally suspect by the Court ( e.g. , race, gender, age) are presumed ordinarily unjust by the public.

The Proposed Definition may seem awkward to use, because of its two-part structure. However, once grasped, it is easy to apply. One must be able to recognize a difference or inequality in treatment, while identifying the category on which it is based. Beyond that, one must have an opinion, usually developed long since, concerning the morality of using that basis. Two operating rules need to be followed: (1) The speaker's judgment of the basis must derive from its use overall as grounds for different or unequal treatment, not its use in the situation at hand. (2) If the speaker does not regard the basis as presumably unjust, he must not employ the words, "discrimination" or "nondiscrimination." Their use in such a context is out of place and courts misunderstanding.

The Descriptive and the Judgmental Definitions are not only prime sources of the Proposed Definition, but also popular in their own right. Contrasting their consequences with those of the Proposed Definition will hone the reader's acquaintance with the latter, as well as his understanding of speakers who continue to employ the former.

Take, for example, the owner of an apartment building, who believes that he ought to treat rental applicants unequally based on their race, in order to keep the building racially integrated. If our landlord uses the Descriptive Definition correctly he will say: "In this case, I 'discriminate' based on race. 'Discrimination' signifies the fact of different or unequal treatment, not a moral judgment about it." Indeed, he will call unequal treatment "discrimination," whether he considers the treatment or its basis good, bad or morally neutral.

If he uses the Judgmental Definition correctly he will say: "In this case, I do not 'discriminate' based on race. 'Discrimination' signifies not only the fact of different or unequal treatment but also a judgment that the treatment is unjust. In these circumstances my treating people unequally based on their race is not 'discrimination,' since I consider the treatment just." He will deny that any unequal treatment he considers just, whatever its basis, is "discrimination."

If he uses the Proposed Definition correctly he will say (as one of the large majority who presume that race is ordinarily an unjust basis for unequal treatment): "In this case, I 'discriminate' based on race. 'Discrimination' signifies the fact of different or unequal treatment plus a presumption that its basis is ordinarily unjust. In these circumstances my treating people unequally based on their race is 'discrimination,' but not unjust, since the benefits of such treatment in this case outweigh the presumption against it." On the other hand, if he does not presume that race is ordinarily an unjust basis for different or unequal treatment, he will not use the word, discriminate, since it does not apply to his conduct.

The fatal disadvantage of the Descriptive Definition was its failure to account for the negative connotation of "discrimination." Our Proposed Definition solves that problem. The fatal disadvantage of the Judgmental Definition was its failure to specify what the speaker is talking about. The Proposed Definition also fixes that.

The reader will recall that statements using the Judgmental Definition often collapse into tautology or incoherence. "Racial discrimination in college admissions is unjust" becomes: "Race-based different or unequal treatment in college admissions that I consider unjust is unjust." "Age discrimination in faculty selection is sometimes just" becomes: "Age-based different or unequal treatment in faculty selection, which I consider unjust, is sometimes just." Using the Proposed Definition, these problems vanish. The first statement becomes: "Different or unequal treatment in college admissions because of race, a basis that I presume to be unjust, is indeed unjust." And the second statement becomes: "Different or unequal treatment in faculty selection because of age, a basis that I presume to be unjust, is nevertheless sometimes just."

With the Proposed Definition, the fog lifts. What the speaker means is clear, whether the presence of "discrimination" is asserted or denied, advocated or condemned, permitted or forbidden. Under most of the definitions we examined, one often cannot tell what the speakers have in mind. This uncertainty is disastrous for the nondiscrimination rule. To command, a moral principle need not be absolute, but it must be unmistakable.

Unlike many of its rivals, the Proposed Definition is impartial. It does not favor or disfavor any group, policy or ideology. It even leaves each speaker free to decide which categorical bases of different or unequal treatment (e.g., race, ethnicity, sex, age, religion, political affiliation, sexual orientation, disability, genes) he presumes to be ordinarily unjust. If the basis is not so judged, the definition impartially denies the label of "discrimination" to any treatment grounded thereon. If the basis is presumed unjust, the definition impartially places the label of "discrimination" on any different or unequal treatment so grounded, no matter who inflicts or suffers it.

Finally, we have here a definition for all seasons. The honest user has no cause to switch formulas, thereby continually contradicting himself and confusing his neighbor. The definition serves equally well—whatever the treatment or basis, whoever is benefited or aggrieved, whenever the time, wherever the place.

As we have seen, the basic steps needed for reaching a satisfactory definition of "discrimination" were provided by the Descriptive, the Judgmental and the Dictionary Definitions. One could have moved directly from these to the Proposed Definition, avoiding an extended examination of false starts. I chose the long way around, partly because the solution means more when the problems are better understood, and partly because it is important to know what the millions who do not employ the Proposed Definition mean when they use or withhold the label, "discrimination."

Indeed, the semantic chaos that has plagued the use of "discrimination" might reasonably be cited as an argument for abandoning the word entirely. But even if one stopped using it to express one's own thoughts, one cannot remove it from the speech of others, living and dead, whose thoughts one needs to address. Neither the past nor the present would allow us to extirpate the word, "discrimination." Moreover, the moral condemnation it bears represents a social advance that should not be thrown away. The word is well worth the fair price of continuing to speak it: an awareness that definitions differ, and a willingness to make one's own explicit.

Endnote 1 .

Webster's Third New International Dictionary Unabridged (1966) – discriminate 2 : "to make a difference in treatment or favor on a class or categorical basis in disregard of individual merit (~ in favor of your friends) (habitually ~ against a certain nationality)."

The American Heritage Dictionary of the English Language, Third Edition (1992) – discriminate 2 : "To make distinctions on the basis of a class or category without regard to individual merit … was accused of discriminating against women; discriminated in favor of his cronies."

The Random House Unabridged Dictionary, Second Edition (1997) – discriminate 1: "to make a distinction in favor of or against a person or thing on the basis of the group, class or category to which the person or thing belongs, rather than according to actual merit … The new law discriminates against foreigners. He discriminates in favor of his relatives. "

What is Gender Discrimination?

Around the world, individuals, businesses, governments, and other systems discriminate against people based on gender. Cis women and girls are the most recognized target, but trans people face significant gender discrimination, as well. Discrimination harms these groups and society as a whole. In this article, we’ll define gender and gender discrimination, provide three examples of gender discrimination in action, and explain its negative effects.

Gender discrimination occurs when a person is treated negatively or unequally based on their gender. It includes restricted access to education, jobs, and healthcare; unequal pay; sexual harassment; and much more.

What is gender?

Before we talk about gender discrimination, we need to know what “gender” is. The World Health Organization has a decent definition: “Gender refers to the characteristics of women, men, girls and boys that are socially constructed.” When society talks about “gender norms,” it’s referring to behaviors and roles associated with men, women, girls, and boys. While not inaccurate, the WHO’s definition is incomplete because it implies a kind of binary. There are more genders beyond men, women, girls, and boys. The Canadian Institutes of Health Research provides a fuller definition: “Gender refers to the socially constructed roles, behaviors, expressions and identities of girls, women, boys, men, and gender diverse people.” In short, gender is a social construct that varies over time and across societies.

How is gender different from sex? The CIHR defines sex as “a set of biological attributes in humans and animals.” These attributes include chromosomes, gene expression, hormone levels and function, and reproductive/sexual anatomy. Sex is typically categorized as “male” or “female,” but even within sex, categories are more complex than a binary. People can identify with the gender typically associated with their sex (cisgender) or identify with a different gender (transgender). If someone doesn’t identify with an exclusively male or female gender, they may call themselves “non-binary.” If someone is flexible about the gender they identify as they may call themselves “gender fluid.” These identities are considered part of the trans community, but because gender is tied to personal identity and self-representation, there are no fixed rules or definitions. Courses like the ones on this list provide further education on topics like sex and gender.

What is gender discrimination and is it a violation of someone’s rights?

Gender discrimination is when someone is treated unequally and unfairly based on their gender identity. Like all discrimination, gender discrimination is a human rights violation, though the distinction between “gender” and “sex” is a more recent development. Take the Universal Declaration of Human Rights as an example. Article 2 reads: “Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, color, sex [emphasis added], language, religion, political or other opinion, national or social origin, property, birth or other status (emphasis added).” Article 2 covers sex discrimination, but it doesn’t mention gender. This is most likely because when the UDHR was written, gender and sex were considered the same. Times have changed. The phrase “other status” has been used to expand the rights given in Article 2. A press release from the UN describes how the organization and regional instruments have based changes on this phrase.

What does gender discrimination look like?

There are countless instances of gender discrimination fueling gender inequality and gender-based violence. Let’s take a closer look at three examples to see how gender discrimination touches every part of societies around the world:

Paying women less for the same work

The gender pay gap is a global issue. According to the International Labor Organization, women make about 20 cents less than men. There are factors like differences in jobs, education, skills, and experience, but gender discrimination is a significant factor, as well. In the United States, Lilly Ledbetter experienced this firsthand. For almost 20 years, Ledbetter worked in managerial positions at a Goodyear tire manufacturing plant. According to a write-up from the National Women’s Law Center, she faced sexual harassment and discrimination from her boss, who believed women shouldn’t work at the plant. Ledbetter also wasn’t allowed to talk about her salary, so it wasn’t until she got an anonymous note that she learned she was paid less than men in the same position. Ledbetter filed a lawsuit.

The court process was a rollercoaster. First, a jury decided in her favor, awarding her back pay and damages. Then, Goodyear tried to vacate the judgment. It eventually went to the Supreme Court where Goodyear prevailed. The majority reasoned that Ledbetter lost her right to sue for pay discrimination because she hadn’t brought her claim within 180 days of getting the first discriminatory check. This ruling ignored the fact that the discrimination was ongoing and, because of the secrecy around salaries, there was no way Ledbetter could have known she was being paid less. While she may have lost the court case, Ledbetter’s lawsuit led to the Lilly Ledbetter Fair Pay Act in 2009. It resets the 180-day filing period each time discrimination happens. When people work to establish laws like this, they help close the gender gap in Economic Participation and Opportunity.

Restricting education access for girls

Gender discrimination in education is one of the root causes of gender inequality worldwide. Without a good education, individuals are severely limited when it comes to job opportunities. The consequences fan out from there, making a person more vulnerable to poverty, violence, human trafficking, poor health, and more. Globally, girls tend to be targets of discrimination. What’s happened recently in Afghanistan is a prime example.

From 1996-2001, the Taliban did not let girls study. In August 2021, the Taliban regained control in the region and began restricting girls from school once again. At first, the militant fundamentalist group said it would let girls attend secondary school, but in 2022 , they broke their promise. Girls had already shown up to their classrooms only to be turned away. The Taliban’s excuse? They were trying to decide on a school uniform. This is significant because back in 1996-2001, the Taliban didn’t technically outlaw education for girls. They kept saying school closures were temporary and that as soon as things were sorted out, girls could come back. That never happened. Now, people fear the same situation is unfolding today. There have also been restrictions at the university level . At Nangarhar University, girls are only allowed to choose from seven of the 13 faculties. They are not allowed to take subjects like engineering, economics, agriculture, veterinary medicine, and journalism. This is blatant gender discrimination.

Discriminating against trans people in healthcare settings

Trans people face significant gender discrimination. Some of the most consequential discrimination occurs in healthcare settings, which is a big reason why trans people are more vulnerable to health problems. In the largest study of transgender and gender non-conforming people in the US, 19% of participants said they were denied care because of their gender identity. 28% reported harassment in medical settings and high levels of delaying care when hurt or sick because of the discrimination. Half of the participants also said they needed to educate their medical providers on transgender care.

Delaying care because of discrimination and trauma – as well as receiving poor medical treatment – worsen health outcomes for transgender people. A 2019 study from the CDC found that trans people were twice as likely as cisgender adults to receive depression diagnoses. They’re also at a higher risk for asthma and heart disease. This shows a clear link between discrimination and poor health. The medical field needs to address transphobia and ignorance if it wants to stop discriminating based on gender. Some of the courses on this list provide further information on gender and health.

How does gender discrimination hurt everyone?

Gender discrimination impacts a person’s health. According to research compiled in a Medical News Today article , women who reported gender discrimination within the year got higher scores on a depression screening tool. Women also experience higher risks for anxiety, PTSD, and eating disorders. While men are more likely to die by suicide, women are 1.5 times more likely to attempt suicide. The exact reason isn’t clear, but experts believe discrimination plays a role. Gender discrimination also intersects with issues involving race, class, religion, and more, which complicates and compounds the discrimination.

Gender inequality negatively affects everyone, not just its targets. In a study from the Global Early Adolescent Study, gender stereotypes hurt both boys and girls. Boys are often taught to deal with their issues using violence. They’re also less equipped to handle difficult emotions, which could explain why men are more likely to die by suicide. When gender stereotypes exist, anyone who doesn’t fit the stereotypes – whether they’re women, men, or non-binary – faces discrimination. Still not sure of how significant gender discrimination is? It leads to gender inequality, which hurts a nation’s economy. According to the Organization for Economic Co-operation and Development, gender discrimination in social institutions leads to a $6 trillion loss for the global economy. When everyone is allowed full economic freedom and opportunities, it makes sense that the whole economy – and not just individuals and families – benefits. For the sake of everyone in society, ending gender discrimination is essential.

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About the author, emmaline soken-huberty.

Emmaline Soken-Huberty is a freelance writer based in Portland, Oregon. She started to become interested in human rights while attending college, eventually getting a concentration in human rights and humanitarianism. LGBTQ+ rights, women’s rights, and climate change are of special concern to her. In her spare time, she can be found reading or enjoying Oregon’s natural beauty with her husband and dog.

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The Man Who Helped Redefine Campus Antisemitism

In government and as an outsider, Kenneth Marcus has tried to douse what he says is rising bias against Jews. Some see a crackdown on pro-Palestinian speech.

By Vimal Patel

In the early 2000s, as the uprising known as the second intifada instilled fear in Israelis through a series of suicide bombings, Kenneth Marcus, then an official in the U.S. Department of Education, watched with unease as pro-Palestinian protests shook college campuses.

“We were seeing, internationally, a transformation of anti-Israel animus into something that looked like possibly a new form of antisemitism,” Mr. Marcus recalled in an interview, adding that U.S. universities were at the forefront of that resurgence.

Ever since, Mr. Marcus, perhaps more than anyone, has tried to douse what he sees as a dangerous rise of campus antisemitism, often embedded in pro-Palestinian activism.

He has done it as a government insider in the Bush and Trump administrations, helping to clarify protections for Jewish students under the 1964 Civil Rights Act and broadening the definition of what can be considered antisemitic.

He has also been an outside agitator, filing and promoting federal claims of harassment of Jews that he knows will garner media attention and put pressure on college administrators, students and faculty.

The impact of his life’s work has never been more felt than in the last few months, as universities reel from accusations that they have tolerated pro-Palestinian speech and protests that have veered into antisemitism.

Since the Oct. 7 Hamas attacks on Israel, the Department of Education’s Office for Civil Rights has opened dozens of investigations into allegations of antisemitism at colleges and K-12 schools, a dramatic increase from previous years.

The bar for starting an investigation is low, but the government has opened cases into institutions as varied as Stanford, Wellesley, the New School and Montana State University.

Mr. Marcus’s nonprofit, the Brandeis Center, initiated only a handful of these complaints, but his tactics have been widely copied by other groups.

Mr. Marcus is “the single most effective and respected force when it comes to both litigation and the utilization of the civil rights statutes” to combat antisemitism, said Jeffrey Robbins, a visiting professor at Brown University, who once served on the Brandeis Center board.

Few, if any, would take issue with the Office for Civil Rights extending protections to students facing antisemitic harassment. But critics say that Mr. Marcus’s larger ambition is to push a pro-Israel policy agenda and crack down on speech supporting Palestinians.

His complaints have often included ugly details, like swastikas being scrawled on doors, and a university’s indifference to them. Those claims, however, have been mingled with examples of pro-Palestinian speech, which some critics say is not antisemitic, even if it makes Jewish students uncomfortable.

One recent complaint against American University includes an example of a student who said that she overheard suite mates “accusing Israel of committing genocide against the Palestinians.” In November, his center filed a complaint against Wellesley College, stating that panelists at an event “minimized the atrocities committed by Hamas.”

The whole point, free-speech supporters contend, is to stir the pot and put colleges under the microscope of a federal investigation. Many universities have since taken an aggressive stance against some forms of speech and protest, moves often decried by academic freedom groups. Columbia, Brandeis University and George Washington University have suspended their chapters of Students for Justice in Palestine.

“These complaints are having the impact that they were designed to achieve,” said Radhika Sainath, a lawyer with Palestine Legal, a civil rights group. “Not to win on the merit, but to force universities to investigate, condemn and suppress speech supporting Palestinian rights, because they are so fearful of bad press and donor backlash.”

Mr. Marcus said the complaints stand on their own merit, but he nodded to their larger impact.

“We realize that the value achieved by these cases is far greater than the narrow resolution might be,” he said.

The goal, he added, is “about changing the culture on college campuses so that antisemitism is addressed with the same seriousness as other forms of hate or bias.”

Interning for Barney Frank and Reading Ayn Rand

Mr. Marcus, 57, said that he had not intended to devote his career to fighting antisemitism.

Growing up in Sharon, Mass., a small town south of Boston, he ran into children who hurled rocks at him and yelled, “Go back to your Jew town,” he said.

But Sharon also had a sizable Jewish population, and he said that he thought of antisemitism as a “relic of the past.”

His Depression-era parents adored Franklin Delano Roosevelt, and in high school, Mr. Marcus worked as an intern for Representative Barney Frank, the liberal congressman.

Mr. Marcus’s politics began to change at the local library, where he read books by conservative thinkers, such as Thomas Sowell and Ayn Rand. While studying at Williams College and the University of California, Berkeley, School of Law, he became captivated by the conservative legal movement. And as a young corporate litigator, he took on First Amendment cases, which drew him into civil rights work.

By 2004, he was the interim leader of the Department of Education’s Office for Civil Rights, where he helped reframe how the department considered antisemitism cases.

Back then, the office declined to take those cases. That is because it was charged with enforcing Title VI of the 1964 Civil Rights Act, which prohibits discrimination based on race, color or national origin — but not religion.

But in an official letter , Mr. Marcus wrote that the agency’s Title VI enforcement would include ancestry — meaning students who are harassed because of their ethnic and religious characteristics, including “Arab Muslims, Jewish Americans and Sikhs.” In 2010, the Obama administration endorsed and clarified that interpretation of Title VI.

The complaints involving shared ancestry began with a trickle. The first, filed a month after Mr. Marcus’s 2004 letter, was by the Zionist Organization of America against the University of California, Irvine. The complaint included accusations of antisemitism related to the Middle East conflict, such as a sign by a student group that said, “Israelis Love to Kill Innocent Children.”

In those early years, Mr. Marcus and the Z.O.A. were the main ones pushing the Title VI antisemitism cases, said Susan Tuchman, an official at Z.O.A.

She recalled that an official of one major Jewish advocacy group, which she declined to name, yelled at her over the phone, saying that her complaint was counterproductive and targeted speech protected by the First Amendment.

Mr. Marcus “understood when few others did,” she said, “that campus antisemitism was a serious problem and that Jewish students didn’t have the legal protections that they needed.”

His independent advocacy began in earnest in 2011, when Mr. Marcus started the Brandeis Center, based in Washington (and unaffiliated with Brandeis University in Massachusetts).

There were larger, more established Jewish groups, like the Anti-Defamation League, but Mr. Marcus said he wanted his nonprofit to focus on campus legal work.

Media attention was an important part of his strategy. He explained his rationale in a 2013 column in The Jerusalem Post , after President Obama’s Office for Civil Rights had dismissed an early wave of such complaints, including the Irvine case, saying they involved protected speech.

“These cases — even when rejected — expose administrators to bad publicity,” Mr. Marcus wrote, adding, “If a university shows a failure to treat initial complaints seriously, it hurts them with donors, faculty, political leaders and prospective students.”

Mr. Marcus said the complaints create “a very strong disincentive for outrageous behavior.”

“Needless to say,” he wrote, “getting caught up in a civil-rights complaint is not a good way to build a résumé or impress a future employer.”

In 2018, his tactics led some liberal groups to oppose his appointment as the civil rights chief of the Department of Education.

The Leadership Conference on Civil and Human Rights, a coalition of liberal groups, wrote in a letter to senators that Mr. Marcus had sought to use the complaint process “to chill a particular political point of view, rather than address unlawful discrimination.”

The letter also accused Mr. Marcus of undermining policies, like race-conscious admissions, that shielded other groups. The Senate narrowly confirmed him on a party-line vote.

Antisemitism, Redefined

After he took office in 2018, Mr. Marcus did not try to make peace with his critics.

He promptly reopened a Title VI case, brought by the Zionist Organization of America against Rutgers University in New Brunswick, N.J. The Z.O.A. had appealed the dismissal of its case for insufficient evidence.

He used the Rutgers case to embrace, for the first time, a definition of antisemitism put forth by the International Holocaust Remembrance Alliance, which includes holding Israel to a “double standard” or claiming its existence is a “racist endeavor.”

To Mr. Marcus, the definition helped pressure colleges to stop tolerating behavior against Jews that would be unacceptable if directed at racial minority groups or L.G.B.T.Q. students.

But to pro-Palestinian supporters, Mr. Marcus was using the definition to try to crack down on their speech. They said that the Education Department already had the power to investigate and punish harassment, and this new definition just confused administrators about what was allowable.

“No one says we need the I.H.R.A. definition so we can go after Nazis talking about killing Jews or classic antisemitic tropes about Jews and media and banks,” said Lara Friedman, the president of the Foundation for Middle East Peace. The definition, rather, “is about getting at this other supposed antisemitism.”

The next year, the Trump administration issued a sweeping executive order on combating antisemitism and instructed all agencies to consider the I.H.R.A. definition in examining Title VI complaints.

The complaints seem to be affecting campus culture — for better or worse depending on whom you ask. The Department of Education’s Office for Civil Rights said it has opened up 89 shared ancestry investigations into colleges and K-12 schools since Oct. 7, making up more than 40 percent of such cases opened since 2004.

Education Department officials in the Biden administration have said there is no tension between the First Amendment and Title VI. They said universities can prevent hostile learning environments without curbing free expression by, for example, properly investigating complaints, creating support services for students or condemning hateful speech.

But academic freedom supporters counter that administrators will go out of their way to avoid complaints altogether, especially now that the department has accepted the I.H.R.A. definition. The executive order remains in effect, and the Biden administration is considering a regulation on the matter.

Last month, Debbie Becher, a sociology professor at Barnard College, wrote in the student newspaper that the school’s president asked her to “pause” the showing of “Israelism,” a documentary critical of Israel.

In their meeting, the president, Laura Rosenbury, cited worries about Title VI and pointed out that the film was cited in a lawsuit accusing Harvard of antisemitism. Ms. Rosenbury did not respond to interview requests.

“My arguments that this was overt censorship, a violation of academic freedom, and dangerous for Barnard’s culture fell on deaf ears,” wrote Dr. Becher, who went forward with the event.

Mr. Marcus continues to press his case. The Brandeis Center, which started as a one-man operation, now has 13 litigators.

He said he is happy there but would not rule out another stint in a future Trump administration.

“I’ve spent my career focused on this battle,” he said, “and it seems sometimes as if it’s all been leading up to this very moment.”

Vimal Patel writes about higher education with a focus on speech and campus culture. More about Vimal Patel