MOREAU ON DISCRIMINATION: PLURALISM, EQUALITY, AND THE EXPERIENCE OF DISCRIMINATION
[➡︎ read the rest of the book symposium on Sophia Moreau, Faces of Inequality: A Theory of Wrongful Discrimination (2020)]
Kasper Lippert-Rasmussen*
1. Introduction
Sophia Moreau’s Faces of Inequality is a terrific book and it is a great privilege to have this opportunity to comment on it. In this ambitious book, Moreau identifies and helpfully analyses a number of ways in which discrimination can be morally wrongful. In particular, I am impressed with her insightful account of how both direct and indirect discrimination alike, though in different ways, can subordinate people and how her overall theory of the wrongfulness of discrimination fits nicely with a wide range of different moral intuitions pertaining to discrimination.
Nevertheless, this symposium is not an “author meets fans” session. Having made clear my very positive overall view of the book, I will henceforth point to some issues regarding Moreau’s account of the wrongness of discrimination where I would have liked to know more. More specifically, I will address five issues: 1) the nature and advantages of Moreau’s unified, but pluralist, account of the wrongness of discrimination; 2) the relation between the wrongness of individual acts of discrimination on the one hand, and the wrongness of discriminatory practices on the other hand; 3) the wrongness of discrimination that treats some as more than equals and none as less than equals; 4) Moreau’s ambition to capture the lived experience of discrimination and the aims of anti-discrimination law; and 5), finally, the relation between deliberative freedom and opportunity costs.
2. A pluralistic account of the wrongness of discrimination?
Moreau wants to answer the question “What makes discrimination wrong?” Basically, there are two kinds of answers to this question: monistic and pluralistic answers.[1] Monistic answers hold that some instances of discrimination are wrongful and that, at a fundamental moral level, there is one, and only one, feature such that any act of wrongful discrimination is wrongful because it has this feature. A utilitarian account of the wrongness of discrimination is monistic in this sense, since it holds that what makes all wrongful acts of discrimination – indeed, all wrongful acts – wrongful is that they fail to maximize the sum of welfare. Pluralistic answers hold that some instances of discrimination are wrongful and that it is not the case that, at a fundamental level, there is one, and only one, feature such that any act of wrongful discrimination is wrongful because it has this feature.
One might further (non-exhaustively) distinguish between several species of pluralism. One holds that the latter conjunct (“it is not the case that, at a fundamental level, there is one, and only one, feature such that any act of wrongful discrimination is wrongful because it has this feature”) is true because there are – say – three, and exactly three, features such that any act of wrongful discrimination has all three of these features and is wrongful because it has all of these features.[2] This, however, is not Moreau’s preferred form of pluralism. She denies the second conjunct because she affirms that at a minimum there are three features – roughly, that discrimination involves subordination, deliberative unfreedom, and lack of basic goods – such that any act of wrongful discrimination has one or more of these three features and is wrongful because it has at least one of them. The three ways of treating people as inferior just mentioned are the only ones that she treats at length in her book. However, she notes that “I shall not be claiming in this book that these are the only reasons why discrimination wrongs people. But I shall try to show that they are some of the main reasons – that, together, they can help us understand many of the complaints of those who allege discrimination, and can help us to make sense of our own reactions to cases of apparent wrongful discrimination” (8; cf. 187). Nor, however, does she claim that there are more than the three wrong-making features of discrimination that she discusses at length.
One can distinguish further between two forms of pluralism, both of which subscribe to the claim that there are three features – that discrimination involves subordination, deliberative unfreedom, and lack of basic goods – such that any act of wrongful discrimination has one or more of these three features and is wrongful because it has at least one of these features: one that holds that nothing unifies the three features just mentioned and one that holds that something does.[3] Moreau’s pluralism is of the latter kind. She thinks that all three features constitute different ways (or different “interpretations”) of not respecting people as equals (18) and this aspect of her account renders it less different from monist accounts than one might initially think.[4]
I want to make two comments on this broadly pluralist account. First, Moreau thinks that in proposing it she articulates a disagreement with me, since elsewhere I have defended a desert-prioritarian account of the wrongness of discrimination, which she takes to be a monistic account. Arguably, however, that account implies that there are three features – welfare, prioritarian distributive concerns, and desert – that, at a fundamental level, determine the wrongfulness of acts of discrimination, none of which can be reduced to one of the other (Lippert-Rasmussen 2013, 170-183).[5] Hence, I wonder whether Moreau’s species of pluralism is really incompatible with my alleged monism. Indeed, I wonder whether an even simpler account than mine – supposedly a purely harm-based account – could be pluralistic in Moreau’s sense. Suppose we say that there are three ways in which discrimination can be wrongful: it can, say, reduce the degree to which discriminatees realize objectively valuable goods like friendship, achievement, and knowledge. Suppose we add that these are all different ways of setting back discriminatees’ interests – that is what unifies the three ways in which discrimination can be wrongful. Would such an account not be a pluralist account of the wrongfulness of discrimination, if Moreau’s account is?[6] If so, in what way is Moreau’s account pluralist that a (desert-prioritarian) harm-based account cannot also be pluralist?[7]
Second, if we go for pluralism, why not affirm that there are more than the three features Moreau discusses of which it is true that they are important features of what makes wrongful acts of discrimination wrong? Moreau does not show – indeed, makes no attempt to show and does not claim – that there are only three features in virtue of which wrongful acts of discrimination are wrongful. But it is not just that she does not deny an abstract possibility. There are accounts of the wrongfulness of discrimination out there which provide prima facie plausible accounts of the wrongfulness of some acts of discrimination and which locate the wrongness in treating people as inferiors, e.g., Debbie Hellman’s suggestion that some discriminatory acts are demeaning in virtue of their objective meaning and Larry Alexander’s (1992) suggestion that, roughly, certain acts of discrimination are wrongful because they manifest false and disrespectful beliefs about the inferior moral status of the discriminatee. Individual acts of discrimination can have such an objectionable meaning or reflect such beliefs and yet not involve subordination, deliberative unfreedom, nor lack of basic goods on part of the discriminatee. Why not think that these accounts capture important features of what makes discrimination wrongful, when it is? Indeed, might discrimination not be wrongful for reasons other than that it constitutes “treating people as inferiors,” e.g., for the simple reason that it is harmful to its victims regardless of whether harming them in this way constitutes treating them as inferior (6)?[8] After all, when people complain about being discriminated against, almost always what they complain about is at least in part being made worse off than they would have been in the absence of discrimination against them. All in all, on having read Moreau’s book I fail to see clearly what exactly the nature of the disagreement between monists and pluralists about the wrongness of discrimination consists of and, thus, what hangs on this disagreement.
3. Wrongful individual acts of discrimination and wrongful practices
Moreau’s accounts of subordination and deliberative freedom are important and insightful. However, there is a potentially big inferential step from an account – even an insightful one – of what makes a general pattern of action, a set of social rules, norms, policies, practices etc. morally objectionable to an account of what makes individual acts of discrimination, which (causally) “contribute” (47, 60), “confirm or perpetuate” (36), “express” (48), or “sustain” (48) etc. the relevant morally objectionable patterns, wrongful. This is true not just in relation to discrimination, but in relation to many other issues. We can all agree that global warming is morally objectionable. But many seem to think – partly for prima facie respectable reasons – that we cannot simply infer from that objectionableness that any individual contributory etc. act to global warming is wrongful. Act-consequentialists, for instance, might say that my flying to Toronto to participate in a workshop makes my week much more exciting than it otherwise would have been at virtually no climate-related costs, since my abstaining from participating by not flying makes virtually no noticeable difference to global warming. Some people who are concerned with fairness think that there are limits to how much we are required to pick up the tab for others who fail to do their fair share, so provided that I have done my fair share – I haven’t – my flying over might not be wrongful, even if it contributes – even, unlike in the climate change case, non-negligibly – to a wider phenomenon which is morally objectionable (cf. 115). And, by way of a last example, people who believe in an agent-relative prerogative might think that, within certain constraints, it is morally permissible to be partial to one’s own interests and that this implies that some of my contributory acts of GHG emissions might wrong no one, even if it would have been better from an impartial perspective had they not taken place (Scheffler 1982).[9]
Whether or not these considerations are sound is not to the present point. The point is simply that there are considerations that potentially block the inference from a general pattern being morally objectionable to the individual acts that, together with countless others, “contribute to” etc. that pattern being morally wrongful. My question here is simply how Moreau sees the relationship between these two levels of analysis. As far as I can see little is said in the book about this issue, and at least some of the accounts of the wrongfulness of discrimination that she distinguishes her own view from do address, inter alia, the question of the wrongfulness of individual acts of discrimination. Hence, in order to know that her account is a competitor to these accounts and, if so, how, it would be good to know more about the relation that, in her view, obtains between these two levels of analysis.[10]
In particular, it would be good to know what she thinks about the wrongfulness of two – perhaps untypical – individual acts of discrimination: First, discriminatory acts that causally undermine – say, in virtue of their obvious and blunt injustice, e.g., outrageous and absurd acts of racial discrimination in the dying days of Apartheid – the system of subordination which they express, and, second, individual acts of non-discrimination, which perpetuate a system of subordination though without expressing it.
4. Treating people as more than equals
According to Moreau, wrongful discrimination is wrongful in virtue of constituting a failure to treat people as equals. However, one might think that there are two ways to fail to treat people as equals: one might treat some as inferior and one might treat others as superior. If the concern which underlies our objections to discrimination really is that people are treated as equals, then it seems we should be equally concerned with both of these two ways of not treating people as equals. Yet according to Moreau what we really object to in discrimination is only that some people are treated as inferiors (6). I have my doubts about whether this is right.
You might find such doubts pedantic, since is it not the case that any act which involves wrongfully treating someone as superior also involves wrongfully treating someone else as inferior? I think not. Suppose a group of people consent to being treated inferiors and suppose that the way in which they consent to being treated is such that their consent is valid and, accordingly, that they are not being wronged by being treated as inferiors as a result.[11] In this case, we could have a situation where some people are being treated as superiors and some are being treated as inferiors. No one, however, is wronged (assuming that treating someone as superior does not wrong that person unless this person explicitly consents to being so treated). I suspect, however, that those of us who find standard cases of discrimination morally objectionable would find cases like this objectionable too, and for some of the same reasons as in standard cases of discrimination, e.g., if we find relations of hierarchy impersonally bad (cf. Lippert-Rasmussen 2018, 166-170). This leads me to think that Moreau is perhaps too quick to conclude that we do not find the fact that some are treated as superiors “troubling.”[12]
5. The aims of a moral theory of discrimination
I suspect that my discussion in the previous section might reflect a deeper underlying difference between the way in which Moreau and I think of the aim of moral theorizing of discrimination. Moreau thinks that making sense of the “lived experience of discrimination” and “anti-discrimination law” constitute important desiderata for such theorizing (20-23), whereas I think these desiderata are less important (though not irrelevant).[13] Let me make three points in this connection.
First, the two desiderata are quite different and can pull in quite different directions. To see this, go back to the days before the civil rights movement induced legislation. Suppose that, in those days, we are working on an account of the wrongfulness of discrimination, which we want to make sense of anti-discrimination law (or, perhaps more realistically, legislation regulating those acts that we today see as discriminatory). I suspect that an account informed by this desideratum will look different from one that would make sense of the lived experience of discrimination in those days.[14]
Second, I take it that moralists working on the wrongfulness of discrimination in the 1950s should simply not try to make sense of 1950s anti-discrimination law. Why not? I suspect the answer has to be: because law then was not informed by the right values. But then, of course, some might think the same is true of present-day anti-discrimination law. We need some moral argument for why present-day anti-discrimination law is a more reliable guide to facts about the moral wrongfulness of discrimination than whatever laws might have existed in relation to those matters in the fifties, and I take it that such an explanation will have the resources to potentially explain why any present-day anti-discrimination laws fail to fit the moral realities of wrongful discrimination. So, ultimately, our true underlying desideratum is not making sense of anti-discrimination law, but making the best sense of a view of the morality of discrimination on the basis of the best moral arguments pertaining to discrimination that we can come up with. This, of course, is not to say that making sense of anti-discrimination laws plays no role in moral – as opposed to legal – theorizing about the wrongfulness of discrimination, but it is to say – or, at least, I assume it is to say – that it does not play the central role which Moreau seems to ascribe to it.[15]
Before proceeding to my third point, I should like to explain the cautious way in which I state my claim in the previous sentence. The motivation for this that I do not find it particularly clear to what degree and in what way Moreau thinks discrimination law should constrain or shape moral theorizing. In some places, Moreau articulates her view in such a way that, setting aside my first challenge, it is very modest: “the fact that [a theory of the wrongness of discrimination] offers nuanced experiences of our lived experiences of discrimination and the fact that [a theory of the wrongness of discrimination] explains certain basic features of our laws, give us good reason for thinking that it tracks something correct about the moral phenomena in question” (118). Elsewhere, she indicates that the role of law in relation to moral theorizing about discrimination is more a matter of its starting point, i.e., such an inquiry should “begin… with the ideas that the law gives to us” because any theory with a different starting point “risks not being a theory of discrimination as we understand it, and so risks irrelevance to our public discourse and our moral lives” (11).[16] As the present objection shows, the phrase “the law” is misleading at this point. Additionally, I think there is a folk concept of discrimination and a or even several folk theories about its wrongness that have lives of their own, though those lives are intertwined with and, etiologically speaking, might owe their existence to anti-discrimination law. Elucidating these folk concepts and theories certainly is relevant to our public discourse on discrimination and our moral lives. Moreau also submits that “the fact that a particular theory of discrimination fails to accord with certain basic, shared features of anti-discrimination law does count against it. And this is because, whatever kind of injustice is involved in wrongful discrimination, it seems true that our moral understanding of it has been deeply shaped by our legal regimes for regulating it” (21). I deny the former claim, as does Moreau, in fact (21-22), because one might be able to explain why a certain basic, shared feature of anti-discrimination law either does not reflect insights into the nature of the immorality of discrimination – but, say, reflects regulatory desiderata – or reflects mistakes about this topic. Furthermore, the second sentence fails to support the first. Something, e.g., conventions of war, can have shaped our understanding of a certain moral matter – the ethics of war – without that understanding being bound by the nature of that thing.
Third and finally, I have some doubts about the importance of making sense of the lived experience of discrimination. For one thing, I don’t think we can identify what we need to make sense of pre-theoretically. Some people do not experience themselves as being discriminated against, even if they are (see my footnote 13), and we might want our theory of the wrongfulness of discrimination to make sense of their experience.[17] Similarly, as Moreau agrees, some people see themselves as being unfairly discriminated against even if they are not, and, for that very reason, we don’t want to revise our account of the wrongfulness of discrimination to make sense of their (deceptive) experience. What this shows, I think, is not that it is irrelevant whether our account of the wrongfulness of discrimination makes sense of the lived experience of discrimination, but that identifying what that amounts to requires a prior (revisable) view of wrongful discrimination.
Another matter is what exactly it means that an account of wrongfulness of discrimination makes sense of the lived experience of discrimination.[18] A moral theory is not a theory that aims at causally explaining or interpreting the experiences of being discriminated against, but a theory which says when and in virtue of what features discrimination is wrongful and why that is. Hence, while a moral theory of that kind might be consistent with all different theories of such matters, including those that are correct, it would seem odd to say that such a theory makes sense of an issue about which it is simply silent. Hence, I suspect that what Moreau has in mind is something like the following: a theory of the wrongfulness of discrimination makes sense of the lived experience of discrimination if, and only if, what the theory identifies as making discrimination wrongful is identical to what, in the (possibly suitably more rational) eyes of the discriminatees makes the way in which they have been treated wrongful.[19]
I am sympathetic to such an overlap being some reason in favour of the relevant theory of the wrongfulness of discrimination, though I suspect there are many other considerations that need to be taken into account. In particular and as already noted, discriminatees might have false beliefs – even judging by their own lights – about what makes the ways in which they are being treated morally wrongful. Indeed, they might think that they are not wrongful at all and we might have plausible accounts of why discriminates are likely to make such accounts and, thus, why it is not an objection to our theory of the wrongfulness of discrimination that, in the present sense, it fails to capture the lived experience of discrimination.[20] But, as I say, I am not confident about the degree to which Moreau and I disagree about these points, because I am not confident about the exact way in or degree to which the experience of discrimination and anti-discrimination law should shape moral theorizing about discrimination in her view.
6. Deliberative unfreedom
My final concern addresses Moreau’s second source of the wrongfulness of discrimination – the fact that often wrongful discrimination violates the discriminatee’s right to deliberative freedom. In earlier work of mine, I criticized earlier work of Moreau’s on the ground that there could be wrongful discrimination that does not restrict (the right to) deliberative freedom and that there can be non-wrongful discrimination which does (Lippert-Rasmussen 2013, 185-189). Whether or not that criticism was warranted in relation to her earlier account of wrongful discrimination – of which it is fair to say at least that it did not expound an explicitly pluralist account of the moral wrongfulness of discrimination (Moreau 2010) –[21] it is correct that the critique is unwarranted in relation to her present work. On her present account, violation of the right to deliberative freedom is not necessary for discrimination to be wrongful – discrimination can be wrongful because of how it involves subordination or lack of basic goods (81-82).[22]
There is much in Moreau’s response that I would like to take issue with. However, here I will simply address her response to what I took to be a counterexample to an account of the wrongfulness of discrimination that builds only on the violation of a right to deliberative freedom. Imagine that women and men in one sense have all the same options, e.g., members of both genders can become lawyers, officers etc. In another sense they have different options, since any option is proportionally less valuable – say 10% – to women than to men due to sex discrimination. Simplifying greatly for the sake presentation: if a male officer earns $100,000, a female officer earns $90,000; if a male lawyer earns $200,000 a female lawyer earns $180,000 etc. My point here is that this difference in the value of the available options seems irrelevant to women’s deliberations about what to do, since whatever they do, their options will be proportionately less good than the same options are for men. So unlike ordinary sexist discrimination, which makes a difference to how different options – say, different jobs – are ranked relative to one another, this particular form of sexist discrimination, which I think is unlike any form of discrimination that we are familiar with and any instance of wrongful discrimination that Moreau actually discusses (e.g., 59-65), does not.[23] Since I take it to be wrongful – as does Moreau – I took it to be a challenge to her earlier (not explicitly pluralistic) account.
Part of her response to that challenge is to say that my example does involve a restriction of deliberative freedom, since the fact that they are women will “hang over” (82) female choosers and “loom before their eyes as they live their lives” (63). Even if it makes no difference to which options they will select, they cannot fail to notice – correctly – that their options are less good simply because of their gender (85) and, on account thereof, this amounts to a violation of their deliberative freedom (cf. the discussion of how indirect discrimination might violate deliberative freedom: 81).
To assess this counter-assertion we need to look at her characterization of deliberative freedom as “the freedom to deliberate about one’s life, and to decide what to do in the light of those deliberations without having to treat certain traits as costs, and without having to live one’s life with these traits always before one’s eyes” (65). It is the “without having to live…” bit – the precise meaning of which she does not expound – which seems to motivate Moreau’s claim that my scenario involves a restriction of deliberative freedom.[24]
In response, I want to make two points. First, it is odd to say that my counterexample involves a restriction in the deliberative freedom of women, since, although it might restrict their freedom in other ways and, undoubtedly, is morally objectionable, the relevant fact simply is irrelevant to their deliberations over which of the available options to choose. Additionally, presumably the burden of being a woman will “hang over” (82) female choosers and “loom before their eyes as they live their lives” even when they are not deliberating, but simply contemplating their situation, e.g., consider a woman on her deathbed who looks back on her life as a woman in a sexist society.[25] Why not say it restricts the contemplative freedom of women? Of course, one can call the imposition of a deliberatively irrelevant harm of this kind a restriction of deliberative freedom if one likes, but it strikes me as a stipulative use of the term.
In response to my point in the previous paragraph, some might say that this is simply a terminological and, thus, substantively speaking, unimportant point. I do think there is an additional reason, however, which implies that the present issue is not simply terminological. In response to the question of why we should care about our deliberative freedom Moreau appeals to autonomy. Now, “autonomy” can mean quite different things in the philosophical literature, and at least on some of the most influential accounts, it is not clear that restricting deliberative freedom reduces autonomy or involves not respecting the discriminatee as someone who is capable of exercising autonomy (66-67). For instance, in my counterexample women might still have the ability to choose between a range of different, sufficiently valuable options (Raz 1986) and they might still have the ability to reflect critically on the second-order preferences and act on those first-order preferences which they reflectively endorse (Dworkin 1988). Hence, if we subscribe to one of those accounts of autonomy, and if autonomy so construed is the reason we value deliberative freedom, then it is hard to see why we should think of the case I described as one that involves a restriction of deliberative freedom (which, of course, is not to say that we might not object to it on other grounds).
Even if I am right about this, one might say that what matters here is not what standard accounts of autonomy imply, but what autonomy implies on Moreau’s account. By “autonomy” Moreau means “deciding what is important for you, and living your life as far as is possible in accordance with those decisions” (66). Again, I do not see why women in the situation I described would be any less capable of deciding what is important for them or any less capable of living their lives in accordance with those decisions on a natural reading of Moreau’s definition. However, Moreau thinks otherwise, and the reason why seems to somehow derive from her discussion of self-regarding and other-regarding preferences. Basically, Moreau argues that if my deliberative freedom is reduced as a result of other people’s other-regarding preferences (regarding me or people like me), then this involves an imposition of costs on me which it is unjust for me to have to bear and, thus, is a restriction of my deliberative freedom which involves a (prima facie) violation of my right to deliberative freedom. Things are different, however, if the relevant costs are the result of other people’s self-regarding preferences.
I want to raise two questions at this point. First, people can have other-regarding preferences that others exercise their autonomy to the fullest. If such preferences impose costs on me in a way that reduces my deliberative freedom, it is hard to see how I can complain that my having to bear these costs involves these people not respecting me as someone who is capable of autonomy – after all, the desire that someone exercises her autonomy to the fullest presupposes the acknowledgement that this person is capable of autonomy. Second, in many cases in which, intuitively, discrimination violates people’s right to deliberative freedom, it seems to make no relevant difference whether the restriction is due to self- or other-regarding preferences. For instance, employers’ catering to male employees’ (possibly brute) self-regarding desires not to receive orders from female bosses restricts the deliberative freedom of women just as much as does catering to male employees’ other-regarding preferences that no women are bosses. Hence, it is puzzling to me that the distinction between costs deriving from self- versus other-regarding preferences plays a crucial role in determining which restrictions of deliberative freedom count as violations of the right to deliberative freedom. More generally and for the reasons indicated above, I suspect we still need to be clearer about the nature of deliberative freedom in light of the admittedly quite unusual discrimination scenario that I described in my initial critique of Moreau’s 2010 article.
7. Conclusion
Many of these reflections on Moreau’s book point to issues where I think further clarification would be helpful and, at least in some cases, can probably be given within the constraints set by Moreau’s account. I suspect that other points might be harder to meet. Like many other readers, I can say that I have learned a great deal from the book; but, whether or not it is true of other readers, I would add that I suspect that I will be able to learn even more from it in the future.
Literature
Alexander, Larry (1992) “What Makes Wrongful Discrimination Wrong? Biases, Preferences, Stereotypes, and Proxies”, University of Pennsylvania Law Review 141.1: 149-219.
Dworkin, Gerald (1988) The Theory and Practice of Autonomy. Cambridge: Cambridge University Press.
Lippert-Rasmussen, Kasper (2018) Relational Egalitarianism. Cambridge: Cambridge University Press.
Lippert-Rasmussen, Kasper (2013) Born Free and Equal? New York: Oxford University Press.
Moreau, Sophia (2020) Faces of Inequality: A Theory of Wrongful Discrimination. New York: Oxford University Press.
Moreau, Sophia (2010) “What Is Discrimination?”, Philosophy & Public Affairs 38.2: 143-179.
Raz, Joseph (1986) The Morality of Freedom. Oxford: Clarendon Press.
* Professor of Political Theory at University of Aarhus, Denmark (lippert@ps.au.dk).
[1] Of course, there is a third (and perhaps nihilistic) response which denies a presupposition of the question; to wit, that discrimination is wrong. I thank Andy Yu for raising this point.
[2] I ignore the view that this is simply a monist view according to which there is one and only one, as it were, disjunctive, wrong-making feature of discrimination.
[3] If there are more than three wrong-making features of discrimination, Moreau would have to show that these additional wrong-making features can be subsumed under her explanation of what unifies the three features that she discusses; to wit, that they are all ways of treating some as inferiors.
[4] It is noteworthy, however, that Moreau’s ideal of treating everyone as an equal in itself seems like a conjunction of several ideals, e.g., in addition to equality it also involves respecting someone as an autonomous being (5). This – its conjunctive nature – comes out, for instance, in her view that failing to provide anyone with basic goods is failing to treat people as equals even if one deprives everyone equally of basic goods.
[5] I should add the exegetical point, which is probably only interesting to Moreau and me, that, in my book, I do not “presuppose” that a “successful” or “helpful account of wrongful discrimination must be monist” (18) and nothing in my arguments there against, say, mental state-based or objective meaning-based accounts rests on an assumption of this kind (Lippert-Rasmussen 2013, 103-152). Additionally, when summarizing my discussion of harm-based accounts of the wrongness of discrimination I concede that these “may not offer a satisfactory, complete account of the sources of wrongness of discrimination and I have indicated that fairness may play a role as well. In this sense I am open to a pluralistic account of the wrongness of discrimination” (Lippert-Rasmussen 2013, 183) in exactly the same way that Moreau is open to there being more than three wrong-making features of discrimination. Admittedly, the pluralism involved in desert-accommodating prioritarianism does not derive from its giving “content to the idea of failing to treat others as equals by appealing to some single type of inappropriate treatment” (18-19), but this is a non-standard understanding of pluralism (and monism) according to which, say, utilitarianism is not a monist theory if it does not give a single content to the idea of failing to treat others as equals.
[6] Moreau (114) seems to think not, because objective list theories “do not offer us any explanation of why [the items on the objective list] are on the list, other than the claim that they contribute to our well-being.” That might be so, but this does not rule out that objective list theories could be supplemented with such an explanation, so nothing in Moreau’s claim rules out that a harm-based account might be pluralist in her sense.
[7] Moreau points to some advantages of her pluralist account in relation to accounting for some important discussions in the theory of discrimination (127-132), e.g., whether discrimination requires a comparator that is or would have been treated better than the discriminatee. However, I am not sure that the relevant advantages derive from the pluralistic nature of her account.
[8] Moreau writes: “In cases of wrongful discrimination, what troubles us is not just any inequality. It is that some people are treated as inferiors” (6). If Moreau thinks that in cases of wrongful discrimination what troubles us are factors in addition to people being treated as inferiors, this passage is misleading. Consider also: “the abstract idea of ‘failing to treat as an equal’ is all that we need, in order to connect the different reasons why discrimination is wrong into a coherent whole” (25).
[9] Note that the present issue is different from the issue to which Moreau is rightly very alert, to wit, that there is an inferential step from the claim that an act wrongs someone to the claim that it is morally unjustified all things considered (130-131). According to Scheffler, for instance, if I act within my personal prerogative and thereby bring about an outcome that is less than optimal from an impersonal point of view, it is not as if I wrong someone, e.g., those who would have benefited had I done what would have brought about the best outcome from an impersonal point of view, even though I acted in a way which is morally permissible all things considered.
[10] For instance: “My main concern in this book is with the ways in which we wrong other people, when we discriminate against them. In many, if not most of these cases, we thereby act wrongly” (8).
[11] I need the “is valid” bit, because I want to make room for the view that at least some ways of being treated as an inferior, e.g., becoming a slave, are such that one cannot validly consent to being so treated. I suspect, however, that there are some ways of being treated as inferior such that if one consents to it under suitable circumstances, then one is not wronged by being so treated.
[12] In presenting her case for her claim at this point, Moreau gestures in the direction of the levelling down objection to the ideal of distributive equality, but I am not sure that I think this objection casts light on the present issue about relational equality.
[13] Moreau suggests that the aim of making sense of the experience of discriminatees motivates not using “hypothetical examples in an effort to provide more precise tests of the particular moral principles it puts forward” (22). In my view, hypothetical examples can, inter alia, play a useful role in enabling us to understand what discriminatees really find objectionable about the treatment to which they have been subjected. Discriminatees, like others, do not enjoy direct access to and non-defeasible first-person authority over the nature of their complaints, as Moreau agrees (cf. 97-98 on how Canadian non-indigenous fishermen might be mistaken about what they need in order to participate as full and equal participants in Canadian society). In fact, sometimes Moreau also resorts to using hypothetical examples herself in order to identify morally relevant factors (e.g., the excellent prestigious professions only night work example, 47).
[14] A similar point derives from the fact that, as Moreau acknowledges, e.g., in relation to laws regulating indirect discrimination, the legal systems in different countries differ (135n2).
[15] Also, I’m not pointing fingers here; moral arguments, as I think about them, somewhere down the line will rely on moral intuitions and, plausibly, present day discrimination-related intuitions are different from those people had in the fifties. Hence, the challenge I direct at Moreau’s view here can, mutatis mutandis, be directed at my own favoured approach. This, however, does not make it any less of a challenge.
[16] I fail to see why a revisionist theory of discrimination could not be relevant “to our public discourse and our moral lives”, if that is the thought that underlies Moreau’s concern at this point. Sometimes revisionist understandings of social phenomena – e.g., feminism – enable us to understand these phenomena better.
[17] You might of course say that these people experience being discriminated against even if they do not themselves describe their experiences using the concept of discrimination. However, I take it that this is not the notion of “experienced discrimination” Moreau employs.
[18] I realize that Moreau’s rich account contains elements other than a theory of the wrongfulness of discrimination in this sense and that those other parts might make sense of the lived experience of discrimination in ways other than those that I discuss in the main text.
[19] By a “suitably more rational discriminatee,” I mean something like someone who is more informed about empirical facts relevant to her situation and has suitably more time and better capacities for critically reflecting on the nature of her complaint against being discriminated against. The details do not matter in this context and the appeal to suitably more rational versions of an agent is well-known in other fields of moral theory. Furthermore, I am obviously not suggesting that victims of discrimination are less rational than perpetrators, but I am suggesting that they, exactly like perpetrators of discrimination, are far from ideally rational. Perhaps, more controversially, I would also raise as a question why an account of the wrongness of discrimination need not make sense of the experience of discrimination (if it should make sense of the experiences of the discriminatees), e.g., by explaining why they do not think of what they do as being (seriously) wrong despite its being so. Suppose, for instance, that discriminators are very sensitive to a certain feature being a wrong-making feature and that they fail to see what they do as being wrongful despite being very alert to the fact that their acts have this feature. Might this count against a theory of the wrongness of discrimination according to which discrimination is wrong for having exactly this feature, if we think that a theory of discrimination should make sense of the experience of discriminatees?
[20] Moreau also seems to offer a moral reason why theorizing about morality should focus on making sense of the experience of discriminatees; to wit, that this is a way of giving “underprivileged groups… a chance to speak” (22-23). However, privileged people are discriminated against too, just as underprivileged people discriminate. Whatever else articulating the wrongness of such forms of discrimination amounts to, it is not simply a matter of giving “underprivileged groups… a chance to speak” though, of course, doing so is an important task to pursue.
[21] Moreau (2010, 175-176) argues that the fact that a certain policy expresses the view that certain “people are second-class citizens… does not constitute that wrong [the wrong of restricting people’s deliberative freedom]; rather, it is a side effect of the wrong.” While she does not deny that we can make sense of anti-discrimination law, in whole or in part, through positing wrongs other than the wrong of restricting deliberative freedom, she does not address this option in her 2010 article, though in closing she mentions the possibility of a complete account of the aims of anti-discrimination law, which conjoins an account of discrimination-related group-based wrongs and her account of the personal wrong of restricting people’s deliberative freedoms (Moreau 2010, 176-177).
[22] Moreau responds to my challenge that “[g]iven that my account is now a pluralist one” she can dismiss some of my criticisms on account thereof. But my challenge was a challenge to her 2010 account, which this passage seems to concede could not be defended through an appeal to pluralism, not her present one.
[23] In one of her illustrations of how religion is a normatively extraneous trait, Moreau (2010, 156) writes about people of a certain religious belief: “they should not have to choose between their religion and a given job or apartment or economic transaction. Most of us do think this: we think religion is such an important part of the life of religious persons that they should not have to compromise it in order to have the opportunities that they would have had in these areas, but for their religion. The same is true of sex, but for rather different reasons. Like religion, a person’s sex is often a trait that they regard as fundamental to their identity. But it is fundamental in the rather different sense that it determines certain aspects of their appearance and certain of their physical capacities, and it does so regardless of whether they wish it to or not, and regardless of whether they would choose to be of that gender. And it seems important to protect us from the costs of being of one sex rather than another in part because this trait is unchosen. As these examples suggest, the particular types of traits that we recognize as normatively extraneous to people’s deliberations differ markedly… It is that, whatever the nature of the trait, the burdens that result from it are not ones that we believe its possessors should have to factor into their deliberations in these particular social contexts.” In the counterexample I describe, that is precisely the choice that people are not forced to have to make, so I inferred, perhaps incorrectly, that by “costs” Moreau did not mean fixed costs of the sort I describe, though she does not explicitly address the question in her 2010 article.
[24] Obviously, it would be reasonable of women to notice their option sets being uniformly worse than men’s and resent that (and those that impose this situation), but that does not guarantee that, as a matter of psychological necessity, they will.
[25] Moreau (2010, 147) submitted that antidiscrimination law seeks to give us deliberative freedoms “by preventing our employers, service providers, landlords, and others from acting in ways that deny us opportunities because of [normatively extraneous] traits, so that when we deliberate about such things as where to work and where to live, we do not have to think about these traits as costs.” I interpreted this quote (and similar ones) to imply that fixed, unavoidable costs would not restrict deliberative freedom, since those are ones “we do not have to think about” when deliberating. Since they are unavoidable, we should set them aside and focus on avoidable harms (and achievable benefits), when selecting which of the available options we intend to realize. Unavoidable harms (or benefits) are not reasons for choosing one option rather than another. Of course, thoughts about the (injustice of) unavoidable costs might still occur whenever one chooses, and my criticism here is simply neutral on that causal issue.