Rights Against Discrimination

In Faces of Inequality: A Theory of Wrongful Discrimination, Sophia Moreau embarks on a classic philosophical journey. It’s what philosophers nowadays call an explanatory project. The goal of explanatory projects is to deepen our understanding of wrongful actions and what they share in common. In this review essay, I argue that Moreau’s book embodies a valuable explanatory project and contribution to discrimination theory that ought to be on the radar of lawyers, legal theorists, and philosophers. After sketching the book’s arguments, (...) I explain why they are so refreshing. The remainder of the essay proceeds in a more critical mode. First, I argue that book’s explanatory aspirations fall short, and I sketch a framework for a more radically pluralistic theory of wrongful discrimination. This framework has the power to embrace Moreau’s compelling view that discrimination wrongs people by failing to treat them as equals while also recognizing a rich array of other discriminatory wrongs found in lived experience. Second, I argue that Faces of Inequality will disappoint readers looking for a truly inclusive account of wrongful discrimination. I end by emphasizing the book’s contribution to political philosophy and its ambition to provide a truly liberatory theory of what we owe to each other as moral and political equals. (shrink)

Recent philosophical accounts of discrimination face challenges in accommodating robust intuitions about the particular way in which it is wrongful—most prominently, the intuition that discriminatory actions intrinsically violate equality irrespective of their contingent consequences. The paper suggests that we understand the normative structure of discrimination in a way that is different from the one implicitly assumed by these accounts. It argues that core discriminatory wrongs—such as segregation in Apartheid South Africa—divide into two types, corresponding to violations of relational and distributive (...) equality; and that a pluralistic view of the internal structure of each type should be adopted. This normative structure serves to appropriately vindicate the mentioned intuitions; it also contributes to clarifying the normative underpinnings of legal concepts associated with discrimination (including the distinctions between direct and indirect, or ‘disparate treatment/impact’ discrimination, and intentional vs. unintentional discrimination), and developing a more productive public discourse around allegations of discrimination. (shrink)

This article examines how facial recognition technology reshapes the philosophical debate over the ethics of video surveillance. When video surveillance is augmented with facial recognition, the data collected is no longer anonymous, and the data can be aggregated to produce detailed psychological profiles. I argue that – as this non-anonymous data of people’s mundane activities is collected – unjust risks of harm are imposed upon individuals. In addition, this technology can be used to catalogue all who publicly participate in political, (...) religious, and socially stigmatised activities, and I argue that this would undermine central interests of liberal democracies. I examine the degree to which the interests of individuals and the societal interests of liberal democracies to maintain people’s obscurity while in public coincide with privacy interests, as popularly understood, and conclude that there is a practical need to articulate a novel right to obscurity to protect the interests of liberal democratic societies. (shrink)

A growing body of work in free speech theory is interested in the nature of counterspeech, i.e. speech that aims to counteract the effects of harmful speech. Counterspeech is usually defined in opposition to legal responses to harmful speech, which try to prevent such speech from occurring in the first place. In this paper we challenge this way of carving up the conceptual terrain. Instead, we argue that our main classificatory division, in theorising responses to harmful speech, should be between (...) pro-discursive and anti-discursive responses. Some legal responses to harmful speech, so we argue, make a positive discursive contribution in their own right. That is, legal restrictions on harmful speech can have a function that is importantly similar to speech that aims at countering the effects of harmful speech. (shrink)

In “Stereotyping as Discrimination: Why Thoughts Can Be Discriminatory,” I propose that stereotyping someone—even if you manage to keep your thoughts hidden and don’t act on them—can constitute a form of discrimination (2021b). What, Alex Madva asks, are the practical implications of this claim? Even if I am correct that stereotyping constitutes a form of discriminatory treatment, it’s still possible that people should keep on speaking and acting as if “discrimination” refers exclusively to behaviors and policies. He invites me to (...) explore the “potential payoffs and perils” of referring to thoughts and perceptions as discriminatory, especially as they relate to legal practice and social-scientific inquiry (2021, 46). (shrink)

In her recent book, Faces of Inequality (2020), Moreau aims at developing a normative account of discrimination that is guided by the main features of anti-discrimination law. The critical comment argues against this methodology, indicating that due to indeterminacy relative to their underlying normative principles, central anti-discrimination norms cannot fulfill this guiding role. Further, using the content of such norms to guide ethical discussions is likely to be misleading, as it reflects evidentiary considerations that are unique to the legal context. (...) The critical comment’s claims are developed based on a close examination of indirect discrimination (or disparate impact) norms, and, as such, have wider implications for ongoing moral and political debates that are heavily influenced by the content of these norms. (shrink)

The increasingly prominent role of digital technologies during the coronavirus pandemic has been accompanied by concerning trends in privacy and digital ethics. But more robust protection of our rights in the digital realm is possible in the future. -/- After surveying some of the challenges we face, I argue for the importance of diplomacy. Democratic countries must try to come together and reach agreements on minimum standards and rules regarding cybersecurity, privacy and the governance of AI.

It is common for conservationists to refer to non-native species that have undesirable impacts on humans as “invasive”. We argue that the classification of any species as “invasive” constitutes wrongful discrimination. Moreover, we argue that its being wrong to categorize a species as invasive is perfectly compatible with it being morally permissible to kill animals—assuming that conservationists “kill equally”. It simply is not compatible with the double standard that conservationists tend to employ in their decisions about who lives and who (...) dies. (shrink)

Presently, there is a lack of psychological and quantitative studies in Singapore about discriminatory attitudes. This paper aimed to contribute to this aspect. However, to examine actual behavior can be difficult due to the sensitive nature of the needed data. Hence, this study approached discrimination at an attitudinal level. Six vulnerable groups were examined in this study. They consisted of people of a different race, immigrants or foreign workers, homosexuals, people living with HIV/AIDS, people of a different religion, and unmarried (...) couples living together. Two research questions were posed: 1) What is the prevalence of having discriminatory attitude toward vulnerable groups? and 2) What are the predictors of these discriminatory attitudes? Using a sample population of 1,972 Singaporeans, descriptive analysis and binomial logistic regression analysis were conducted. Firstly, based on the results, the prevalence ranged between 10.76% to 42.46%. Singaporeans have discriminatory attitude toward vulnerable groups who can be categorized into two: the least discriminated (three groups ranging between 10.76% to 15.48%) and the highly discriminated (three groups ranging between 30.86% to 42.46%). Secondly, binomial logistic regression showed support for several significant predictors such as emphasis on the importance of religion and tradition, and employment status, depending on the model assessed. However, one pattern was observed in all the models, that a person who discriminates one group is more likely to discriminate another group. The findings were then discussed and explained within the context of Singapore. (shrink)

This is a review of Foundations of Indirect Discrimination Law. Edited by Hugh Collins and Tarunabh Khaitan. [Oxford: Hart Publishing, 2018. x + 292 pp. Hardback £65.00. ISBN 978-15-09912-54-4.] Foundations of Indirect Discrimination Law. Edited by Hugh Collins and Tarunabh Khaitan. [Oxford: Hart Publishing, 2018. x + 292 pp. Hardback £65.00. ISBN 978-15-09912-54-4.].

Most people are completely oblivious to the danger that their medical data undergoes as soon as it goes out into the burgeoning world of big data. Medical data is financially valuable, and your sensitive data may be shared or sold by doctors, hospitals, clinical laboratories, and pharmacies—without your knowledge or consent. Medical data can also be found in your browsing history, the smartphone applications you use, data from wearables, your shopping list, and more. At best, data about your health might (...) end up in the hands of researchers on whose good will we depend to avoid abuses of power.2 Most likely, it will end up with data brokers who might sell it to a future employer, or an insurance company, or the government. At worst, your medical data may end up in the hands of criminals eager to commit extortion or identity theft. In addition to data harms related to exposure and discrimination, the collection of sensitive data by powerful corporations risks the creation of data monopolies that can dominate and condition access to health care. -/- This chapter aims to explore the challenge that big data brings to medical privacy. Section I offers a brief overview of the role of privacy in medical settings. I define privacy as having one’s personal information and one’s personal sensorial space (what I call autotopos) unaccessed. Section II discusses how the challenge of big data differs from other risks to medical privacy. Section III is about what can be done to minimise those risks. I argue that the most effective way of protecting people from suffering unfair medical consequences is by having a public universal healthcare system in which coverage is not influenced by personal data (e.g., genetic predisposition, exercise habits, eating habits, etc.). (shrink)

Statistical evidence is crucial throughout disparate impact’s three-stage analysis: during (1) the plaintiff’s prima facie demonstration of a policy’s disparate impact; (2) the defendant’s job-related business necessity defense of the discriminatory policy; and (3) the plaintiff’s demonstration of an alternative policy without the same discriminatory impact. The circuit courts are split on a vital question about the “practical significance” of statistics at Stage 1: Are “small” impacts legally insignificant? For example, is an employment policy that causes a one percent disparate (...) impact an appropriate policy for redress through disparate impact litigation? This circuit split calls for a comprehensive analysis of practical significance testing across disparate impact’s stages. Importantly, courts and commentators use “practical significance” ambiguously between two aspects of practical significance: the magnitude of an effect and confidence in statistical evidence. For example, at Stage 1 courts might ask whether statistical evidence supports a disparate impact (a confidence inquiry) and whether such an impact is large enough to be legally relevant (a magnitude inquiry). Disparate impact’s texts, purposes, and controlling interpretations are consistent with confidence inquires at all three stages, but not magnitude inquiries. Specifically, magnitude inquiries are inappropriate at Stages 1 and 3—there is no discriminatory impact or reduction too small or subtle for the purposes of the disparate impact analysis. Magnitude inquiries are appropriate at Stage 2, when an employer defends a discriminatory policy on the basis of its job-related business necessity. (shrink)

Parties to a temporary marriage agree in advance that their marriage will only last for a fixed period of time unless renewed: that it will automatically expire after two years, for instance, or five, or twenty. This paper defends the claim that temporary marriages deserve state recognition. The main argument for this is an application of a principle of marriage equality. Some other arguments for are also canvassed, including an argument from religious freedom, and a number of arguments against recognition (...) are also discussed. The paper also discusses the question of whether such “temporary marriages” are in fact a kind of marriage, and defends the claim that they are, or would be, genuinely marriages. (shrink)

The article analyses the concept of indirect discrimination, arguing first that existing conceptualisations are unsatisfactory and second that it is best understood as equal treatment that is disadvantageous to the discriminatees because of their group-membership. I explore four ways of further refining the definition, arguing that only an added condition of moral wrongness is at once plausible and helpful, but that it entails a number of new problems that may outweigh its benefits. Finally, I suggest that the moral wrongness of (...) indirect discrimination is best accounted for in terms of the harm it does to discriminatees, and sketch three ways in which it may do so. I conclude that the analysis provides both a clearer understanding of the concept of indirect discrimination as well as indirect support for a harm-based account of the wrongness of discrimination, while suggesting that our moral obligations qua non-discrimination may be more extensive than is frequently assumed. (shrink)

In summary, Hellman’s book is well worth reading. It is powerful, well-written, and interesting and explains much of the prominent case law on discrimination. Her theory, however, is false because her explanation of wrongful discrimination fails to track a wrong-making feature. Her theory does not focus on a right-infringement in or unfair treatment of the person whom is discriminated against. It also does not focus on an incorrect attitude in the person who discriminates. These intuitively seem to exhaust the reasons (...) that make an act wrong because it wrongs someone. Her account of wrongful discrimination fails to identify the correct wrong-making feature. (shrink)

Menschenrechtsverletzungen aufgrund sexueller Orientierung und Geschlechtsidentität (SOGI) wurden auf internationaler Ebene lange Zeit kaum zur Kenntnis genommen. Doch seit einigen Jahren wird dem Thema in den Vereinten Nationen breiterer Raum eingeräumt. Die Yogyakarta-Prinzipien und eine Studie des Amtes des Hohen Kommissars für Menschenrechte stellen nur die ersten Schritte auf dem Weg zu einem umfassenderen Schutzansatz dar. Er muss gegen den Widerstand vieler Staaten weiterverfolgt werden.

In this article I critically examine a standard feature in conceptions of discrimination: the group-criterion, specifically the idea that there is a limited and definablegroup of traits that can form the basis of discrimination. I review two types of argument for the criterion. One focuses on inherently relevant groups and relies ultimately on luck-egalitarian principles; the other focuses on contextually relevant groups and relies ultimately on the badness of outcomes. I conclude that as neither type of argument is convincing, the (...) criterion is morally arbitrary, and as such untenable. Finally, I suggest both some of the conceptual and some of the practical implications of abandoning the criterion. (shrink)

Fifty years ago this year a legal practitioner turned military intelligencer turned philosopher, Herbert Hart, published The Concept of Law, still deservedly best-seller in thought about law. It presents law, especially common law and constitutionally ordered systems such as ours, as a social reality which results from the sharing of ideas and making of decisions that, for good or evil, establish rules of law which are what they are, whether just or unjust. But right at its centre is a chapter (...) on justice, informed by Hart’s professional knowledge of Plato and Aristotle and the tradition of civilized thought about justice, thought which he sums up like this: “the general principle latent in [the] diverse applications of the idea of justice is that individuals are entitled in respect of each other to a certain relative position of equality or inequality.” “Hence”, he goes on, “[the] leading precept [of justice] is often formulated as ‘Treat like cases alike’; though we need to add … ‘and treat different cases differently’”. This article will say something about three aspects of this vast topic: (i) about the factual basis and normative grounds of equality; (ii) about the proposed principle of equal concern; and (iii) about laws and social policies that pursue equality by selective prohibition of direct and indirect discrimination, and of harassment or vilification, victimisation and offence. (shrink)