Deborah Hellman, Moreau’s Pluralism about Discrimination (Book Forum) [2020 C4eJ 29]

MOREAU’S PLURALISM ABOUT DISCRIMINATION
[➡︎ read the rest of the book symposium on Sophia Moreau, Faces of Inequality: A Theory of Wrongful Discrimination (2020)]

Deborah Hellman*

I am delighted to be able to comment on Sophia Moreau’s excellent book Faces of Inequality. Sophia and I have been talking together about discrimination for many years now and I have learned so much from these conversations, from her work and from her comments and criticism on my own work. 

I want to address the pluralist nature of her theory and say something about what I think are its virtues and then some worries.

Sophia argues – as you know – for a pluralist understanding of the wrong of wrongful discrimination. Discrimination may unfairly subordinate, it may infringe deliberative freedoms that a person is entitled to and it my deny access to basic goods. She argues that these components of her theory are unified by the idea that they are each ways of failing to treat another person as an equal, a person of equal moral status, etc. It is an interesting mix of pluralism with an underlying moral unity. The question I have about it is not a worry about pluralism (in fact I am increasingly coming to that view myself) but instead about whether her particular brand of pluralism works – given the attempt to be identify distinct ways in which discrimination can be wrong and yet maintain the thought that these distinct aspects all relate to a failure to treat another person as an equal. It calls for a sort of “Goldilocks” quality – enough difference to count as pluralist but not so much as to undermine their connection to the “equality” question, as she terms it. Does that work?

I want to begin with one of her examples that I think illustrates the virtues or strengths of her approach: the Wackenheim case in Chapter 4. Here she criticizes the U.N. Human’s Rights Committee’s focus on whether Wackenheim’s dignity has been violated. One could see that approach as going directly to the underlying question: does the ban on dwarf tossing treat Wackenheim in a manner that that denies his equal status. There are, according to Sophia, two problems with this way of thinking about the question, and thus two benefits of unpacking that amorphous concept of dignity into the three distinct parts that she offers. 

First, an appeal to dignity is morally and analytically lazy. Why does it deny dignity to allow or to ban dwarf tossing? In contrast, her approach offers “more clarity” (111). Her theory forces us to articulate these ideas with more precision. 

Second, the focus on dignity does not allow us a way to make sense of the moral residue that Sophia thinks this case gives rise to. While the ban on dwarf-tossing may be justified because dwarf-tossing may lead to stigmatization of people with dwarfism and promote the attitude of seeing them as mere objects, the ban simultaneously denies Wackenheim the ability to find employment, which is a basic good and so also discriminates against him. The ban does not constitute wrongful discrimination all things considered but “Wackenheim still has a residual moral objection to them, an objection that is grounded in considerations of discrimination” (111).

I think Sophia is correct that these are virtues of her view: it helps to unpack or disaggregate the many different ways in which someone can be treated in a way that denies her equal moral status. A view that focuses on dignity, while gesturing toward these ideas, could use some more clarification. Also, I think she is correct that the same act or policy can both help and hinder the task of treating each other with dignity. And her view helps us to see and acknowledge that.

That said, I have some worries: As Sophia describes her three different ways of failing to treat another as an equal, she treats the first – subordination – as primal or basic. Of course, subordinating someone just is failing to her as an equal. The challenge then is to say why the second two parts both are aspects of failing to treat another as an equal and at the same time do not devolve into subordination. Let me take denial of basic goods first – as that is what is at issue in the Wackenheim case. 

For this third branch to be distinct, I think it must be the case that the denying the basic good isn’t just the failure to provide something that everyone has a right to, qua human being. If so, we wouldn’t be identifying a problem of discrimination. Rather, the denial of the basic good must also fail to treat the people denied the good as equals. Sophia’s paradigmatic example is the failure to provide safe drinking water to remote indigenous communities. This failure is not just the failure to provide water but also discrimination. Why? Because the fact that it is indigenous communities who lack water carries a social meaning that a similar failure to provide it to other remote areas would not both because a failure to provide it to them carries derogatory meanings and because a failure to provide it to native people in particular is bound up with stereotypes of dirty native populations. 

But now I am worried. 

How do we go from the mere denial of a basic human right to discrimination? It seems that the denial of the basic human right becomes discriminatory via the social meaning that its denial has in Canadian society given that it indigenous communities that are lacking water and that it is water, in particular, that they are lacking (which then brings in the stereotypes of dirty Indians, etc.). But if these are what transform the mere denial of a necessary human good into a discriminatory denial, I wonder why we should say that it is the denial of the basic good that is significant rather than the stigmatization, the fact that the denial expresses denigration, etc. which it does because of the social significance of water to indigenous communities and the social significance of the fact that it is indigenous communities that are denied water. 

I have a similar sort of worry about the discrimination as the denial of a deliberative freedom to which a person has a right. Sophia notes that all denials of deliberative freedom are not forms of discrimination – only those to which a person has a right (68). So, the key question is: what deliberative freedoms do people have a right to? 

I am not quite sure I have fully understood her answer here but let me try to reconstruct it. First, she notes that “we value deliberative freedom because we value autonomy” (69) and so wants to use the concept of autonomy to help answer that question. I’ll come back to that part in a moment. But first I was struck by how she put this: “we value . . . because we value . . . .”  These are descriptive claims about our society.  Is that formulation significant?

First on autonomy and its importance: Sophia says the following: “Perhaps we can say that someone has a right to a certain deliberative freedom if denying that freedom to her would amount to failing to respect her as a being capable of autonomy” (69). She acknowledges that this might sound like she is replacing one vague idea with another but says she is not because we can cash out the autonomy idea by asking the following: “whether the costs that a discriminatee is being asked to bear reflect her own personal choices, or whether they reflect other people’s assumptions about who she is and what roles she ought to occupy” (69). Sophia proposes to use this idea to sort the deliberative freedoms a person has a right to from those she does not.

Sophia’s application of this idea puzzles me however. The first contrast she offers is between a Muslim employee who is required to work at the time that her religion requires her to pray versus this same employee who sets up a GoFundMe page to finance a religious pilgrimage. Both cases involve deliberative freedom but in the first case the employee is entitled to the deliberative freedom (in Sophia’s view) and in the second she is not. Why?

Let’s apply Sophia’s test: whether the costs that a discriminatee is being asked to bear reflect her own personal choices, or whether they reflect other people’s assumptions about who she is and what roles she ought to occupy? I’m not sure how we can tell. In both instances, there are costs to the employee’s religious practice – the first we presume will disrupt the way the employer wants to arrange the workplace; the second will require money that others would prefer to spend elsewhere. If both a pilgrimage and praying during the day are religious obligations, how can we make a distinction here? The principle Sophia offered doesn’t appear to distinguish between them. What Sophia does say is this: “bearing the costs of her own pilgrimage is, we would say, part of what it is for her to take responsibility for her own life and the costs of some of her chosen activities.” But why can we not say the same about praying during the work day? Why can we not say that “bearing the costs of praying during the work day are party of what it is for her to take responsibility for her own life . . . .”

I want to offer a second worry about the deliberative freedom arm – one that is more analogous to my worries about prong three, i.e., that in fact it collapses back into the antisubordination idea. Sophia raises the question why denying a deliberative freedom to which a person has a right fails to treat that person as an equal (i.e., what is the connection between that arm of her account and the underlying value?). The answer that she provides is this: Most of the societies that prohibit discrimination are ones that value autonomy. Therefore “Failing to respect someone as a person capable of autonomy is, in these societies, failing to treat her as an equal” (74, emphasis added). 

But note: it is not because of the inherent value of autonomy, rather it is because these societies value autonomy that failing to respect someone’s autonomy also fails to treat her as an equal. In other words, the connection is contingent. If a society valued something else very highly (being given orders by the central government), then being excluded from this practice (i.e., being left to decide for oneself how to lead one’s life) would fail to treat this person as an equal.

While I agree with that characterization, it demonstrates that autonomy and deliberative freedom aren’t really doing the work here. One could restate the theory by saying: being denied access to whatever within that society is socially understood as necessary to life as a member of equal status would constitute a form of discrimination. But if this is right, are we back to the idea that a person suffers discrimination when they are treated differently from others in a manner that within that society is understood as demeaning. 

I don’t mean to be impolite and tout my own view here so let me end by saying that Sophia might say back – and I would agree – the following. Yes, that’s true but it matters that in the societies we are focused on (Canada, the U.S., the U.K. etc.) that it is being denied autonomy that matters. So in order to have an account that tells you about philosophical foundation of discrimination law (i.e., the laws we have), her account does better and has real explanatory power. 

I agree. 


* David Lurton Massee, Jr., Professor of Law & Roy L.; Rosamond Woodruff Morgan Professor of Law, University of Virginia School of Law.