DISCRIMINATION, SUBORDINATION, AND DELIBERATIVE FREEDOM: A REPLY TO CRITICS
[➡︎ read the rest of the book symposium on Sophia Moreau, Faces of Inequality: A Theory of Wrongful Discrimination (2020)]
I want to begin by thanking Deborah, Niko, Seana, Kasper, and Rebecca for their very insightful comments. I have learned a great deal from each of them over the years and my own views have been deeply influenced by theirs. (So the responsibility for most of the errors in the book probably lies with them.)
Dickens wrote of one of his novels that “All that I could say of the Story, to any purpose, I have endeavoured to say in it.” I feel the same way about this book: anything I say here about the claims made in the book will be too brief, will lack the richer context that the book provides for its arguments, and will be translated into the somewhat different conceptual frameworks that each of my Critics uses to understand discrimination. But here is an attempt to reply to what I take to be their most important points.
A general point about unfair subordination
I’ll start by clarifying the role that unfair subordination plays in my theory of wrongful discrimination, in response to an objection that Deborah has pressed, and that seems to me to underlie some of Niko’s comments as well. This is that unfair subordination seems to do much of the moral work in my supposedly pluralist account of wrongful discrimination.
Now, there is a sense in which this is true but not at all problematic for me; and there is a different sense in which would be problematic if it were true, but is not true.
It is true in the sense that all forms of wrongful discrimination, on my view, are wrong because they fail to treat some people as the equals of others, and instead treat some people as inferiors. This is a presupposition of my theory, and one that I explicitly acknowledge and try to defend in Chapter One. But, as I suggest there, the bare concept of treating some people as though they were inferior to others can be interpreted in different ways. (To use Rawls’ distinction, we might say that there are a number of different substantive conceptions of this concept.) And these different substantive conceptions each invoke other moral ideas, that do much of the work in explaining why discrimination is wrong.
One of these substantive conceptions appeals to what I call “social subordination.” This is the state of affairs in which one or more classes of people in society occupy a social status below that of others, so that they have less power and authority than others, and are either explicitly shut out of, or quietly rendered invisible within, important areas of society. This is a thicker idea of subordination than the bare idea of treating some people as though they were inferior to others. Now it would be a problem for my attempt at a pluralist theory if each of the other substantive conceptions of what it is to treat some as the inferiors of others just collapsed into this thicker idea of subordination. But I don’t think they do. And I think we can understand why by thinking about who is wronged by different discriminatory policies, about what the wrong is, and about the appropriate remedy.
In cases where the wrong involves creating or perpetuating what I call “social subordination”, the remedy is naturally to work to eliminate the policies or practices that maintain these particular class divisions. But in other cases of discrimination, this is not the remedy that claimants are seeking. In some cases, claimants allege that a certain discriminatory practice denies them a particular good, and that this is a good they need to have if they are to be and be seen as an equal in their society. This is what I have tried to capture through the phrase “being denied access to a basic good.” When same sex couples demand the opportunity to marry, or when indigenous peoples descry the lack of clean water on reserves, they aren’t so much pointing to the subordination of their class of people relative to others and objecting directly to that subordination, as they are saying “Look: there is a particular good that I lack, and without it, I can’t be or be seen as an equal in my society. So you need to give it to me.” The remedy here is to give them access to this particular good, whether that means access to a certain private or public resource or the opportunity to become a member of an important social institution. Now, even though many policies that contribute to unfair social subordination do also leave people without basic goods, we can see that the alleged wrongs in these cases, and the appropriate remedies, are different. So are the groups of people affected, and the relevant comparator groups. If our concern, for instance, lies with the subordination of Indigenous peoples in Canada, the relevant class includes these Indigenous peoples, and the relevant comparator group – that is, the class in relation to which this group is subordinated – is the class of non-indigenous peoples in Canada. But when we look at the basic good of being denied clean water on reserves, we need to separate out the situations of Indigenous men and Indigenous women. Indigenous women are affected even more significantly by the lack of clean water: for them, it is not just a problem of sanitation, but a problem of identity, because without clean water they are unable to fulfil their cultural identities as keepers of clean water. Without this good, they are unable to function as equals, not just in the broader Canadian society, but even within their own Indigenous communities.
A third kind of wrong done by discriminatory practices seems to me to involve the denial to someone of a particular deliberative freedom, in circumstances where they have a right to it – whereby they face burdens, both in terms of the range and costs of their choices, and in terms of what Seana so aptly refers to as “invasions, disruptions or distortions” of their deliberative processes. I argue in the book that, given the importance of deliberative freedoms in our society, there are many times when we cannot treat others as equals unless we give them a particular deliberative freedom. So this gives us yet another conception of what it is to treat someone as the inferior of others. And again, although it does involve subordination in this thin sense, it is not equivalent to the thicker idea of social subordination. Certainly, many denials of deliberative freedom occur in contexts where the person being denied the freedom is also a member of relevant subordinate social classes. And we often cannot understand the impact on them of being denied this particular freedom unless we understand what it is like for their class to be subordinated. But their complaint about having been unfairly denied the freedom is conceptually distinct from their complaint about the social subordination of their class.
My book, therefore, articulates three separate substantive conceptions of what it is to treat some as inferior to others (though it does not claim that these are jointly exhaustive – it claims only that together, they help to explain many important cases of wrongful discrimination). A practice or policy can treat some as the inferiors of others by creating multiple social classes, with some above others; it can leave people without a good that is necessary for them to be, and be seen as, the equal of others; and it can deny someone a particular deliberative freedom. And although it is true that, whenever someone is wronged in one of these ways, we can say in a thin sense that this person was “subordinated” to others, this is just the thin sense of subordination that binds the different wrongs together, as components of a unified theory of wrongful discrimination.
Reply to ➡︎ Deborah Hellman
There are two other concerns of Deborah’s that I want to address. First, Deborah worries that it is a problem that, on my view, the connection between deliberative freedom and equality is contingent. It is only because our societies happen to value certain deliberative freedoms that denying people these freedoms while giving them to others amounts to failing to treat these people as the equals of others. She suggests that this is problematic because “it demonstrates that autonomy and deliberative freedom aren’t really doing the work here.”
It is certainly true that the importance for us of particular deliberative freedoms is a contingent matter. But I do not think it follows that the concept of deliberative freedom does no moral work in explaining why, in these particular cases, people are not being treated as equals. Right here, right now, we do value certain deliberative freedoms; and so when some are given them and others are not, the latter people are not treated as the equals of these others; and they are thereby wronged because they are denied these deliberative freedoms. The idea of deliberative freedom plays a crucial role in this explanation; and it does not matter that it might have been something else that we valued so highly, had we evolved differently or come to hold radically different values. (More generally, what is only contingently true of us can have great explanatory power, from a moral point of view. It is only contingently true of us that we live in a world of scarce resources; but that doesn’t mean that this fact can’t play a role in explaining why it is wrong to hoard resources for oneself.)
Now, Deborah might reply that actually, she is not denying that contingent facts can carry moral weight. She is simply suggesting that if certain denials of deliberative freedom count as ways of failing to treat people as equals, then surely denying someone anything that we as a society also just happen to value as highly as deliberative freedom should also count as a way of failing to treat them as equals. This is a different objection, and it doesn’t depend on any claims about the explanatory power of contingent facts about us. I acknowledge in the book that the three different conceptions of failing to treat a person as the equal of others that I focus on are not jointly exhaustive: there may certainly be other ways of failing to treat some as other people’s equals. But it seems to me unlikely that any specific good of the kind that Deborah envisions – such as “being given orders by the central government” – would be valued as widely as deliberative freedom is. That is because deliberative freedom is a precondition for any person being able to pursue whatever kind of life that person wishes to pursue. Whereas specific goods, such as being given orders by the government, are not: they are valued by some, and not valued by others.
Deborah makes two further suggestions, both of which I want to resist. She proposes, firstly, that once we acknowledge that failing to respect someone’s right to a particular deliberative freedom amounts to a failure to treat that person as an equal because of the value we place on deliberative freedom, we are “back to the idea” that we fail to treat someone as an equal when we demean them. And she suggests, secondly, that if leaving someone without a basic good is to mean more than just ‘denying them a basic human right’ this must be because leaving them without that basic good demeans them.
I have learned a great deal from Deborah’s account of wrongful discrimination as demeaning, and I certainly think that the social meaning of particular practices is morally relevant. But I do not think that the wrongfulness of discrimination depends solely on the demeaning message that it sends; nor do I think that any of the conceptions of wrongful discrimination discussed in the book collapse into the view that discrimination is wrongful because of the demeaning social message it sends.
Leaving a group without a basic good, for instance, is problematic on my view not just because of the social message that it sends about that group, but because of what it does to them, quite independently of that message. I have explained already that, when Indigenous peoples are denied access to clean water, indigenous women are unable to fulfil their cultural roles as keepers of the water. This is primarily why clean water is a basic good for them – and it has nothing to do with the social messages that are reinforced about Indigenous peoples when the government fails to take its obligation to provide them with water purification systems seriously.
And denying someone certain deliberative freedoms is, on my view, morally problematic because it fails to treat this person as an equal – but it does not follow that such denials always carry a derogatory meaning or always send the social message that this person is of less intrinsic value than others. Indeed, many of the cases of indirect discrimination that my account captures – cases where a policy does not explicitly exclude a certain group, but indirectly disadvantages them, leaving them without the deliberative freedoms available to others, or denying them access to a basic good – do not send any demeaning messages at all. One of the virtues of my account is that it gives us a way of understanding these cases, too, as wrongful discrimination, and as discrimination that is wrongful for the same reasons as direct discrimination or disparate treatment, even though there is no demeaning message sent by many of these policies.
Reply to ➡︎ Niko Kolodny
Niko proposes “slotting” the different examples of wrongful discrimination in my book into three types of complaint: complaints of fair improvement, complaints of unequal treatment, and subordination-based complaints. This categorization is different from the schema that I set up in the book. As I’ve indicated in the general remarks on unfair subordination with which I began this Reply, I regard all complaints of wrongful discrimination as being about subordination, at least in the thin sense of subordination that means only “treating some as the inferiors of others.” What Niko means by “subordination” – relations of inferiority characterized by differences in power, authority and consideration – I treat as a substantive conception of unfair subordination, one possible way of fleshing out what is involved in treating some people as the inferiors of others. I call it “social subordination,” because it concerns differences between broad classes of people in society.
Niko notes correctly that when complaints of fair improvement and unequal treatment do not involve a broader pattern of differential treatment on the basis of personal traits, we don’t speak of them as “discrimination.” But he does not mention a reason for this. And I think that, if we ponder what this reason might be, we will in fact be led to my view, that complaints of fair improvement and unequal treatment are only complaints of wrongful discrimination insofar as they treat some people as the inferiors of others, that is, if they subordinate some to others in the thin sense of subordination that I mentioned above. It is generally true of protected traits – race, gender, sexual orientation, religion, etc. – that, when some people are denied a benefit on the basis of such a trait, or when a policy is adopted that leaves people with this trait worse off than it leaves others without it, these people are treated as inferiors. So, at least when we are talking about wrongful discrimination, I don’t think that complaints of fair improvement and unequal treatment are as independent of complaints about subordination as Niko suggests. They are wrongful only to the extent that they treat some as the inferiors of others.
And this is why my book starts out with the question: what is it, exactly, to treat some people as the inferiors of others? What are some of the different ways in which we can do this? Niko has written in enormously illuminating ways, to which I am greatly indebted, about what it is for a society to be divided into different classes, which possess different social statuses. I call this “social subordination” in the book. I argue there that, while wrongful discrimination often perpetuates social subordination, and while many complaints of discrimination are best thought of as complaints about this kind of subordination, complaints of discrimination can also be about other ways of being treated as the inferior of other people – ways that do not primarily focus on broad class differences, though they may have come about in part because of such class differences. We can see this by looking at legal complaints of wrongful discrimination. Some people complain, not that a policy keeps them in a class that is subordinate to others, but that the policy denies them a deliberative freedom to which they had a right, and that therefore, they have not been treated as the equal of others. Others complain that a policy leaves them without a particular good, and they need to be given that particular good if they are to be able to function as an equal in their society. I explained in the opening section of this Reply why, in my view, these other ways of understanding the wrongfulness of discrimination are not reducible to complaints about social subordination – that is, subordination in the thick, social class-based sense that Niko has in mind, though they are indeed complaints about subordination in the thin sense of treating some people as the inferiors of others. So I shall not say more on that here.
Niko also argues that what I call structural accommodations – policies, practices that accommodate needs of one group while ignoring needs of others – are just a form of what he has called consideration. While of course one can define a term such as “consideration” any way one likes, and certainly capaciously enough to include both practices that express deference to a person or group and practices that work indirectly to marginalize and render that group invisible, I think there are at least three good reasons for resisting a capacious definition of “consideration.”
The first is that there is an important difference between practices that are paradigmatic of consideration, as Niko understands it, and those that count as structural accommodations. Practices that express what Niko calls “consideration” treat some people more deferentially than others – for instance, doffing your hat to some people as you walk by, or giving wealthy the bread with the upper crust, because the bottom crust has been baked on the ashen floor of the oven. Most of the paradigmatic instances of such practices consciously favour the needs of some people over those of others – and part of their point is to show those who are watching that one group of people is deliberately being deferred to and another group is not. (After all, doffing your hat only expresses deference to someone if it is done deliberately, and it expresses deference precisely because the person to whom the hat is doffed knows that it is being done with the intent of deferring to them.) The practices that I call structural accommodations, however, are not conscious expressions of deference; nor is it any part of their purpose to show those who are being deferred to that they are being deferred to. Structural accommodations are often originally adopted with the needs of one group in mind; but in most cases, this is because there are no other groups with different needs at the time the policy is adopted. When such other groups come to exist, the policy continues to look neutral, and the needs of these other groups remain invisible -and that’s precisely why structural accommodations are much harder than deliberate expressions of deference to ferret out and to remove. For example, in the book, I discuss the practice of holding University meetings from 4-6pm, which means that primary caregivers for children, who are most often women, have to leave early; and I discuss the old policy of the Canadian government requiring the Stetson hat (that large iconic cowboy hat) to be worn by Mounted Police, which of course leaves out anyone wearing a religious head-covering that can’t be worn at the same time as the Stetson hat. Neither of these policies was adopted out of a conscious desire to privilege the needs of one group. At the time, it seemed these needs were the needs of every professor and every Mountie: University Professors were almost exclusively male and did not have to worry about childcare, and RCMP officers were not Sikh. And this is precisely the problem. These structural accommodations continue to masquerade as responses to everyone’s needs, even when groups arise whose needs are not met by them at all. So they thereby work, silently and invisibly, to disempower groups such as women and Sikhs. It seems to me therefore that deliberate expressions of deference, on the one hand, and disadvantaging structural accommodations, on the other, work in very different ways to marginalize social groups. Structural accommodations are more difficult to identify than patterns of consideration, precisely because they don’t look deferential and aren’t intended to be deferential. I therefore disagree with Niko that structural accommodations are “straightforwardly a disparity in consideration.” The reason they are so difficult to notice and to eliminate is precisely that they don’t look straightforwardly like disparities in consideration.
Second, discrimination law itself actually separates out structural accommodations and expressions of deference –though it doesn’t use these particular terms for them. I argue in the book that we can see prohibitions on intentional forms of direct discrimination (what the US would call “disparate treatment”) as akin to attempts to eliminate expressions of consideration towards certain groups based on certain traits. And I argue that we can see prohibitions on indirect discrimination (or disparate impact) as attempts to eliminate certain problematic structural accommodations. Now, while Niko and I agree that both practices that show excess consideration for certain groups and practices that involve problematic structural accommodations can unfairly subordinate people, the two kinds of practices do so in different ways, and the law acknowledges this by separating them into these two different categories. So I think that recognizing a division between practices that show consideration for one group and not another, on the one hand, and practices that constitute structural accommodations that work silently to keep certain groups invisible, on the other hand, would be more helpful from a legal standpoint.
Finally, I worry that Niko’s suggestion that we should just treat unfair structural accommodations as forms of consideration sounds very much like the suggestion (which we see in various places in American law) that discrimination is morally problematic largely insofar as it is a form of disparate treatment, or a deliberate attempt to elevate some people above others. One of most important aims of my book is to show that actually, disparate impact, or indirect discrimination, is just as morally troubling as disparate treatment – and that we don’t need to see it as an expression of conscious deference towards a particular group or deliberate marginalization of others groups in order to find it morally troubling. I argue in Chapter One that indirect discrimination works in certain special ways to render particular social groups and their needs invisible, and I explore exactly what that means, and why we can see it as a form of morally reprehensible negligence. I think that, if we are truly to understand how indirect discrimination subordinates, and why it is often just as wrongful as direct discrimination, we need to resist the impulse to assimilate it to forms of direct or intentional discrimination, and to resist the suggestion that all wrongful discrimination can helpfully be re-described using the same concepts we use to understand direct discrimination.
Reply to ➡︎ Seana Shiffrin
I am very grateful to Seana for her nuanced and deeply instructive discussion of the deliberative burdens imposed on people by discrimination. As she notes, we are in substantial agreement. We agree that discrimination often burdens people’s deliberative freedom. And we agree on the many different ways in which it can do so – for instance, limiting a person’s range of choices, imposing extra costs on certain choices that others do not face, and, as Seana nicely emphasizes, intruding on and distorting a person’s deliberative processes.
I think Seana is quite right to push me to think more about what she helpfully calls the “social architecture choices” that result in some people facing greater deliberative burdens than others, and that leave us unable to meet the needs of two groups at the same time – in the way that our lack of a fully accessible public transportation system imposes burdens both on people with guide dogs and on Muslim taxi drivers, and forces us to choose between leaving these burdens on the shoulders of people with disabilities or leaving them on the shoulders of an already marginalized religious group. Seana is right to suggest that my analyses of deliberative freedom in the book ought to focus more on the general institutional failings that have led to these burdens, such as the absence of genuinely accessible public transportation system. Such a public and institutional focus here would be entirely in keeping with the rest of the book, which conceives of wrongful discrimination not as a problem caused by particular individuals and their attitudes, but as a shared social problem that can only be fixed by our altering our practices and institutions.
That said, the book emphasizes the role of other people’s assumptions in limiting discriminatees’ deliberative freedom because I do think that such assumptions play a large role in the particular deliberative burdens that are experienced by victims of wrongful discrimination. It seems important that discriminatees are often asked to bear the costs of other people’s assumptions about them, and that they themselves have played very little role in shaping these same assumptions – indeed, this seems partly to explain why we regard these intrusions on a person’s deliberative freedom as particularly severe curtailments of that person’s autonomy. I do think that this is part of what is troubling about the cases of taxi drivers who decline to give rides to clients with guide dogs. Seana is quite correct to note that the problem here is caused in part by our transportation system, which leaves visually impaired people without many options, and also by the labour market, which already places large burdens on unskilled workers such as taxi drivers. But it also seems to me important to note that the drivers’ beliefs about the cleanliness of guide will, if used to justify denying a ride to those with visual impairments, significantly limit the autonomy of the latter – not because the drivers’ religious beliefs are unreasonable (my argument does not depend on any such assumption), and not because this makes it more difficult for visually impaired clients to find a ride, but because these clients are being denied an opportunity on the basis of beliefs about their animals, and hence about themselves, that they had no part in creating. Moreover, such assumptions about the unclean status of animals are echoed in other areas of society, where they also work to deny opportunities to visually impaired clients with guide dogs: think, for instance, of the many restaurant owners who sit people with guide dogs at the edges of the restaurant, or nowhere at all, because they worry that other customers will find the animals smelly and unattractive. So although I think Seana is right that there is a lot more work to do to uncover the various institutional choices that lead to unfair deliberative burdens, I do still think that there is a special way that our autonomy is affected when we are denied an opportunity available to others on the basis of other people’s assumptions about us: this accentuates the unfairness of particular deliberative burdens.
Seana also suggests that when we assess the deliberative burdens on a particular person, it is more helpful to think of the relevant question as whether and to what extent various policies respect that person’s autonomous choices, rather than, as I suggest, about whether they respect her as someone capable of autonomy. I am not sure there is a deep disagreement between us here, but I am inclined to keep the language of capability because it seems to me to be more felicitous to the complaints of people who face such deliberative burdens. Often – though of course not always – when members of marginalized, disadvantaged groups bring claims of discrimination, what they are objecting to is not that their past choices were not respected by a certain organization or a certain policy, but that this organization or policy did not give them the opportunity to make choices that were, in a meaningful sense, their own. So they were not shown respect, as beings who were capable of making autonomous choices. It seems infelicitous to talk about respecting these people’s autonomous choices, when part of their problem is that they have not, in these particular contexts or in relation to these institutions, been able to make such choices in the first place. That is why I chose to speak of respecting someone as “capable of autonomy.” The idea here is that, as Ben Eidelson has argued elsewhere, respecting someone’s capacity for autonomy involves both respecting the autonomous choices that they have in fact made, and putting in place the conditions necessary for them to make autonomous choices in the future, such as an adequate range of options, the absence of certain kinds of fixed and opportunity costs, and an absence of certain invasions and distortions in their deliberative processes.
Reply to ➡︎ Kasper Lippert-Rasmussen
I am very grateful to Kasper once again for engaging with my work. Kasper is better able than almost any philosopher I know to take a question that initially seemed only to admit of two or three answers, and pry it open to reveal six or eight – and he does so with the kind of attention to detail that a skilled miniaturist brings to models. This is wonderful for philosophy as a discipline, but unfortunate for interlocutors like me, who quickly begin to feel as though their own handiwork is clumsy and their vision, blurry. Although in this case, I am somewhat comforted by the fact that the law seems clumsy and blurry as well – and I think that when we are trying to make sense of moral ideas that have one foot in the law, clumsiness and blurriness can sometimes be a virtue.
I am going to reply to four of what I take to be Kasper’s most important questions. The first concerns the sense in which my theory of wrongful discrimination is pluralist, and the degree to which this matters. Kasper is quite right that there are many species of pluralism. In categorizing my own theory as pluralist, I mean to draw a distinction between those kinds of theories that appeal to the same wrong-making feature or features in all cases (for instance, welfare, prioritarian distributive concerns, and desert, which I assume prioritarian theories treat as relevant in all cases) and those that hold that some cases of discrimination can be wrong because of one factor –such as denying someone’s right to a particular deliberative freedom, and other cases of discrimination may be wrong because of an entirely different factor – such as perpetuating the social subordination of one class of people in relation to another. This seemed to me to be an important distinction to make, in part because most philosophers of law who write about discrimination seem to look for one set of features that will be relevant in all cases of wrongful discrimination. Since I am doing something different, I wanted to flag this.
But Kasper is right that not much hinges on the mere categorization of a theory as pluralist or monist. And he is right to imply that whatever advantages my theory may have over the theories that I classify as monist, these are advantages that the theory has by virtue of the particular claims that it makes about discrimination, not really by virtue of its pluralist nature. If the theory is, as I suggest, able to give a more nuanced account of the wrongs suffered by different claimants; if it is able to resolve legal disagreements about the relevant comparator groups in different cases, and philosophical disagreements about whether the wrongs done by discrimination are individual or group wrongs; and if it is able to resolve such disagreements while also explaining why these disagreements arose in the first place, this is because the picture of discrimination that the theory gives to us is complex and historically accurate. It may be that, in order to obtain such an accurate picture, we need a pluralist theory – but the accuracy comes from the picture as a whole, not just from the pluralism.
Second, Kasper worries that it is not true, as I suggest in the book, that what we really object to in cases of discrimination is treating some people as the inferiors of others. He thinks that if, as I suggest, wrongful discrimination is wrongful because it fails to treat some people as others’ equals, then cases in which someone is treated as the superior of others are just as concerning – not because they always involve an inferior, but because (i) the superior, too, is not being treated as an equal, and (ii) relations of hierarchy are objectively bad in themselves, not just bad when taken from the perspective of the inferior. Our disagreement here may in part reflect our different views about the relevance of the law to moral thinking about discrimination. Most countries’ anti-discrimination laws seem to be primarily concerned with the effects of discrimination on those who are treated as inferiors in a given situation. For instance, in both Canada and the UK, claimants must demonstrate that they have been disadvantaged by a given policy, not just treated differently – and while being disadvantaged relative to others is not quite the same thing as being treated as inferior to them, it is most often those who are disadvantaged in a given situation who are treated as inferiors, and it is clear that the law is preoccupied with these people, not with their superiors, and not with the impersonal badness of situations involving hierarchies. Moreover, many countries have adopted a complaint model for dealing with discrimination, according to which the claimant brings forward the complaint of discrimination as a wrong done to herself or to a group to which she belongs. These legal models suggest that the moral wrong we are attempting to rectify – wrongful discrimination – is the wrong of treating some people as inferiors. They make it difficult to think of discrimination as an impersonal wrong, concerned with the badness of the state of affairs in which some are superior and others, inferior. And they completely rule out complaints by superiors that they were treated too well. And while I agree with Kasper that it is a mistake to let the current law set limits to our moral horizons, these particular limits seem to me to be the right ones. At least if we are thinking of complaints of discrimination as complaints of significant moral urgency, I fail to see how the complaint of a superior that she was given more than she was entitled to has much moral urgency, unless it is ultimately a plea to attend to the needs of those who lost out when she was given more. And I find myself unmoved by, and unable to make sense of, claims about the impersonal badness of hierarchy per se. I can understand that a hierarchical society harms both those in inferior positions and those in superior positions – that it is, for many reasons, bad for all of the people who live in it. And I can even understand that we might therefore, in some aesthetic sense, call such a society an “ugly” one. But I have trouble making sense of the claim that it is impersonally bad.
Third, Kasper is right that I appeal both to the law and to various people’s experiences of discrimination in different ways in the book. I invoke them both as certain starting points for my theory, and also as tests for whether the theory is in fact successfully capturing the moral phenomenon that we want it to capture. I try to start from what I take to be certain basic, common features of anti-discrimination laws in a number of jurisdictions, such as the fact that they recognize a distinction between direct and indirect discrimination, and the fact that they assume that discrimination is wrongful only if it occurs on the basis of a certain limited number of protected grounds. Of course, the judgment that these are “basic” features of anti-discrimination law involves certain normative presuppositions, and I acknowledge this. But I also allow that, once the theory is more fully developed, it may itself cause us to question the importance of these legal doctrines – as I do in the book, suggesting that the distinction between direct and indirect discrimination is not as morally significant as it seems, and that the protected grounds are best understood as heuristic devices. Similarly, I start from various people’s legal complaints of wrongful discrimination, rather than from hypothetical examples, because I think these complaints can tell us some important things about what discrimination denies to people, and what a theory of discrimination must try to capture. I do acknowledge explicitly that people can be mistaken about whether and why the discrimination they have faced is wrong, and I discuss some examples of these mistakes and why they occur. But I do not think it follows that we can’t use people’s experiences, or the law, as helpful guides. We just need to acknowledge that they are fallible and may need revision.
Moreover, I think it is not just helpful, but necessary, to appeal to real people’s experiences of discrimination, when theorizing about what makes it wrongful. If we do not, then, as I argue in the book, we risk frustrating an important aim of anti-discrimination law. This is to give underprivileged groups a chance to have their voices heard. Anti-discrimination laws aim not just to improve the situation of subordinate social groups, but to give the members of these groups a say in determining what an improvement for them would look like. This isn’t an incidental feature of anti-discrimination law – it is one of its main goals. Consequently, if we set aside the real complaints of discriminatees and replace them with our own more precise hypothetical versions of their complaints, we risk perpetuating both our own mistaken assumptions about them and their silence.
Finally, I want to come back to a source of persistent disagreement between Kasper and me, which is how to understand the impact on women’s deliberative freedom of earning less than men no matter which job they take up. Kasper has urged in the past, and re-asserts here, that if a cost is fixed across all of a person’s options, then this can be morally objectionable but cannot affect that person’s deliberative freedom. So if a woman will make less money than her male counterpart no matter what job she chooses, this cannot lessen her deliberative freedom. Kasper proposes that it simply restricts what we might call this person’s “contemplative freedom.” I disagree. In this case, the woman’s deliberative freedom is indeed burdened, for reasons similar to those that Seana mentions in her Comment. I have written in the book of how many victims of discrimination describe the constant intrusion of gender or race (or some combination of the two) as the most salient features of the discrimination that they experience. Seana states that “a woman’s gender is persistently present” – and this seems to me right. As a woman, one’s gender is persistently present, even when (and in fact, partly because) all of the options before you make it a cost for you that you are a woman. So gender doesn’t only intrude on our deliberations when there is some other option we could choose that would be more advantageous to people of our gender. The form of its intrusion is precisely that it imposes a consistent disadvantage across many social contexts, for no good reason –and we therefore cannot forget about it. I also disagree with Kasper in his characterization of this example as one that is “unlike ordinary sexist discrimination.” I think actually that this kind of constant intrusion of a particular trait upon one’s consciousness, in circumstances where there is nothing whatever that one can do to avoid being negatively labelled or disadvantaged by that trait, is actually a very common feature of systemic discrimination.
Reply to ➡︎ Rebecca Cook
Rebecca’s comments differ from those of my other Critics in that, rather than giving a philosophical critique of my view, she has offered some insights into how my view might be used to develop equality jurisprudence in international and regional human rights systems. I am particularly grateful to her for sharing these thoughts. For while it is very important to subject philosophical theories to rigorous analytical scrutiny such as I have received from the other four Critics, a different measure of the success of a theory such as this one lies in the extent to which it can help us re-conceptualize our legal doctrines in progressive ways.
Rebecca suggests that a number of the book’s implications will be helpful to both claimants and courts, as they try together to ensure an accurate conceptualization of, and a fair response to, women’s complaints of wrongful discrimination. She suggests that the theory’s pluralism will invite claimants to offer, and courts to accept, a richer and more nuanced account of the particular wrongs that they have suffered under particular discriminatory policies. She also notes helpfully that the concept of a “structural accommodation” turns our focus away from particular individuals’ actions and attitudes and onto the institutional structures that perpetuate wrongful discrimination, and that this could encourage courts and tribunals to think more creatively about the ways in which such structures need to be re-designed to avoid discrimination (in much the same way, actually, that Seana in her remarks urges a focus on “social architecture” and its design). Rebecca also discusses some of the possibilities that open up when we see the protected grounds of discrimination in the way that I propose –that is, not as necessary features of all cases of wrongful discrimination, but simply as heuristic devices that highlight the kinds of cases that are most likely to involve unfair subordination, denials of deliberative freedom, or lack of access to basic goods. This way of understanding the protected grounds opens the possibility of expanding the list of prohibited grounds to include features such as poverty or social condition (or, one might add, in light of COVID-19, immunity status). It also invites courts to inquire not just whether a policy disadvantages someone on the basis of a protected ground, but whether that particular disadvantage amounts to unfair social subordination, a denial of a right to deliberative freedom, or a lack of a basic good. So it may spur courts to move beyond simply checking in a mechanical way that the claimant has been disadvantaged on the basis of a protected trait, and trying instead to look in each case at whether and how the claimant has been treated as the inferior of others. Finally, Rebecca is right to think that in order to do this, courts need to look in detail at the social context of each case, and in particular, at how that context appears from the claimant’s own perspective. This means bearing in mind the claimant’s particular needs, the burdens she has faced that may be invisible to others, and the identity that she has, or wishes to develop, that may similarly be ignored or denied by those around her. If my theory helps even in a small way to spur litigants and courts onto recognition of these facts, I will be very grateful.
Thanks again to all of my Critics for these thought-provoking and important suggestions.
* Professor of Law and Philosophy, University of Toronto.