Discrimination

First published Tue Feb 1, 2011; substantive revision Mon Apr 20, 2020

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

1. The Concept of Discrimination

What is discrimination? More specifically, what does it mean todiscriminateagainst some person or group of persons? Itis best to approach this question in stages, beginning with an answerthat is a first approximation and then introducing additions,qualifications, and refinements as further questions come intoview.

1.1 A First Approximation

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

Standard accounts hold that discrimination consists of actions,practices, or policies that are—in some appropriatesense—based on the (perceived) social group to which thosediscriminated against belong and that the relevant groups must besocially salient in that they structure interaction in importantsocial contexts (cf. Lippert-Rasmussen 2006: 169, and Holroyd 2018:384). Thus, groups based on race, religion and gender qualify aspotential grounds of discrimination in any modern society, but groupsbased on the length of a person’s toenails would typically notqualify. However, Eidelson has challenged the social saliencerequirement (2015: 28–30), and a sound understanding of what makesdiscrimination wrongful might depend on how the challenge is resolved.Eidelson’s view is examined in section 4.1 below. In themeantime, the analysis of discrimination presented here will proceedon the basis of the social salience requirement.

Discrimination against persons, then, is necessarily oriented towardthem based on their membership in a certain type of social group. Butit is also necessary that the discriminatory conduct impose some kindof disadvantage, harm, or wrong on the persons at whom it isdirected. In this connection, consider the landmark opinion of theU.S. Supreme Court inBrown v. Board of Education, holdingthatde jure racial segregation in public schools isunconstitutional. The Court writes, “Segregation with thesanction of law … has a tendency to [retard] the educationaland mental development of negro children and to deprive them of someof the benefits they would receive in a racial[ly] integrated schoolsystem” (1954: 495). Thus, the court rules that segregationamounts to illegal discrimination against black children because itimposes on them educational and psychological disadvantages.

Additionally, asBrown makes clear, the disadvantage imposedby discrimination is to be determined relative to some appropriatecomparison social group. This essential reference to a comparisongroup explains why duties of non-discrimination are “duties totreat people in certain ways defined by reference to the way thatothers are treated” (Gardner 1998: 355). Typically, therelevant comparison group is part of the same society as thedisadvantaged group, or at least it is governed by the same overarchingpolitical structure. InBrown, the relevant comparisongroup consisted of white citizens. Accordingly, it would bemistaken to think that the black citizens of Kansas who brought thelawsuit were not discriminated against because they were treated noworse than blacks in South Africa were being treated underapartheid. Blacks in South Africa were not the proper comparisonclass.

The appropriate comparison class is determined by normativeprinciples. American states are obligated to provide their blackcitizens an education that is no worse than what they provide to theirwhite citizens; any comparison with the citizens or subjects of othercountries is beside the point. It should also be noted that,whether or not American states have an obligation to provide aneducation to any of their citizens, if such states provide an educationto their white citizens, then it is discriminatory for the states tofail to provide an equally good education to their blackcitizens. And if statesdo have an obligation to providean education to all their citizens, then giving an education to whitesbut not blacks would constitute a double-wrong against blacks: thewrong of discrimination, which depends on how blacks are treated incomparison to whites, and the wrong of denying blacks an education,which does not depend on how whites are treated.

Discrimination is necessarily comparative, and theBrown caseseems to suggest that what counts in the comparison is not how well orpoorly a person (or group) is treated on some absolute scale, butrather how well she is treated relative to some other person. But animportant element of the court’s reasoning inBrownsuggests that the disadvantage or wrong imposed by a discriminatoryact can encompass more than the harmful downstream causal consequencesof the act. Thus, the Court famously writes, “Separateeducational facilities are inherently unequal” (1954: 495). TheCourt can be construed as saying that, apart from the harmfuleducational and psychological consequences for black children, the JimCrow segregation of public schools stamps those children with a badgeof inferiority and thereby treats them unfavorably in comparison towhite children.

It is important to recognize that discrimination, in the morally andsocially relevant sense, is not simply differential treatment.Differential treatment is symmetrical: if blacks are treateddifferently from whites, then whites must be treated differently fromblacks. But it is implausible to hold that Jim Crow and South Africa’sapartheid system discriminated against whites. The system arguablyheld back economic progress for everyone in the South, but that pointis quite different from the implausible claim that everyone was avictim of discrimination. Accordingly, it is better to think ofdiscrimination in terms of disadvantageous treatment rather thansimply differential treatment. Discrimination imposes a disadvantageon certain persons relative to others, and those who are treated morefavorably are not to be seen as victims of discrimination.

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

One might think that it downplays the harm done by discrimination tosay that the disadvantage it imposes only need be a relativedisadvantage. However, theBrown case shows how theimposition of even a “merely” relative disadvantage canhave extremely bad and unjust consequences for persons, especiallywhen the relevant comparison class consists of one’s fellowcitizens. Disadvantages relative to fellow citizens, when thosedisadvantages are severe and concern important goods such as educationand social status, can make persons vulnerable to domination andoppression at the hands of their fellow citizens (Anderson 1999). Thedomination and oppression of American blacks by their fellow citizensunder Jim Crow was made easier by the relative disadvantage imposed onblacks when it came to education. Norwegians might have had an evenbetter education than southern whites, but Norwegians posed littlethreat of domination to southern whites or blacks, because they livedunder an entirely separate political structure, having minimalrelations to American citizens. Matters are different in today’sglobalized world, where an individual’s disadvantage in accessto education relative to persons who live in other countries couldpose a threat of oppression. Accordingly, one must seriously considerthe possibility that children from poor countries are beingdiscriminated against when they are unable to obtain the educationroutinely available to children in affluent societies.

The relative nature of the disadvantage that discrimination imposesexplains the close connection between discrimination andinequality. A relative disadvantage necessarily involves aninequality with respect to persons in the comparison class.Accordingly, antidiscrimination norms prohibit certain sorts ofinequalities between persons in the relevant comparison classes (Shin2009). For example, the U.S. Civil Rights Act of 1866 requiresthat all citizens “shall have the same right, in every State andTerritory in the United States, to make and enforce contracts, to sue,be parties, and give evidence, to inherit, purchase, lease, sell, hold,and convey real and personal property, and to full and equal benefit ofall laws and proceedings for the security of person and property, as isenjoyed by white citizens” (Civil Rights Act 1866). And theinternational convention targeting discrimination against womencondemns “any distinction, exclusion or restriction made on thebasis of sex which has the effect or purpose of impairing or nullifyingthe recognition, enjoyment or exercise by women … on a basis ofequality of men and women, of human rights and fundamentalfreedoms” (CEDAW, Article 1).

To review: as a reasonable first approximation, we can say thatdiscrimination consists of acts, practices, or policies that impose arelative disadvantage on persons based on their membership in a salientsocial group. But notice that this account does not makediscrimination morally wrong as a conceptual matter. Theimposition of a relative disadvantage might, or might not, bewrongful. In the next section, we will see how the idea of moralwrongfulness can be introduced to form a moralized concept ofdiscrimination.

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

Nonetheless, the leveling-down objection is problematic. Thatplaintiffs in discrimination cases do not ask that voting be abolishedonly shows that they know that they would be better off with everyonehaving the right to vote than with no one having it. Moreover,although leveling down would, in typical cases, deprive everyone ofsomething to which all are entitled, it does not follow that levelingdown would constitute discrimination. The universal denial of thefranchise would be a wrong, but not the wrong ofdiscrimination. Denial of the franchise amounts to discrimination onlywhen it is selectively directed at some salient group within the adultpopulation. Accordingly, Lippert-Rasmussen seems to be right when heexplains, “Unlike other prima facie morally wrong acts, such aslying, hurting, or manipulating, one cannot discriminate against someunless there are others who receive (or who would receive) bettertreatment at one’s hands …. I can rebut an accusation ofhaving discriminated against someone by saying that I would havetreated anyone else at least as badly in that situation” (2014:16).

1.2 The Moralized Concept

The concept of discrimination is inherently normative to the extentthat the idea of disadvantage is a normative one. But it does notfollow from this point that discrimination is, by definition, morallywrong. At the same time, many—or even most—uses of theterm ‘discrimination’ in contemporary political and legaldiscussions do employ the term in a moralized sense. Wasserman isusing this moralized sense, when he writes that “[t]o claim thatsomeone discriminates is … to challenge her for justification;to call discrimination ‘wrongful’ is merely to addemphasis to a morally-laden term” (1998: 805). We can, in fact,distinguish a moralized from a non-moralized concept ofdiscrimination. The moralized concept picks out acts, practices orpolicies insofar as theywrongfully impose a relativedisadvantage on persons based on their membership in a salient socialgroup of a suitable sort. The non-moralized concept simply dispenseswith the adverb ‘wrongfully’.

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

There is an additional point that needs to be made in connection withthe wrongfulness of discrimination in its moralized sense. It isnot simply that such discrimination is wrongful as a conceptualmatter. The wrongfulness of the discrimination is tied to thefact that the discriminatory act is based on the victim’smembership in a salient social group. An act that imposes arelative disadvantage or deprivation might be wrong for a variety ofreasons; for example, the act might violate a promise that the agenthas made. The act counts as discrimination, though, only insofaras its wrongfulness derives from a connection of the act to themembership in a certain group(s) of the person detrimentally affectedby the act. Accordingly, we can refine the first-approximationaccount of discrimination and say that themoralized conceptof discrimination is properly applied to acts, practices or policiesthat meet two conditions: a) they wrongfully impose a relativedisadvantage or deprivation on persons based on their membership insome salient social group, and b) the wrongfulness rests (in part) onthe fact that the imposition of the disadvantage is on account of thegroup membership of the victims.

2. Types of Discrimination (in its Moralized Sense)

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

2.1 Direct Discrimination

Consider the following, clear instance of direct discrimination. In2002, several men of Roma descent entered a bar in a Romanian town andwere refused service. The bar employee explained his conduct bypointing out to them a sign saying, “We do not serveRoma.” The Romanian tribunal deciding the case ruled that theRoma men had been the victims of unlawful directdiscrimination (Schiek, Waddington, & Bell 2007: 185). Thebar’s policy, as formulated in its sign, explicitly andintentionally picked out the Roma qua Roma for disadvantageoustreatment. It was those two features—explicitness andintention—that made the Roma case a paradigmatic example ofdirect discrimination. Such examples of discrimination are cases inwhich the agent acts with the aim of imposing a disadvantage onpersons for being members of some salient social group. In the Romacase, the bartender and bar owner aimed to exclude Roma for beingRoma, and so both the owner’s policy and the bartender’smaxim of action explicitly referred to the exclusion of Roma. It isclear that the policy of the bar was wrong, but the question of whatmakes the policy and other instances direct discrimination wrongfulwill be put on hold until section 4.1 below.

In some cases, a discriminator will adopt a policy that, on its face,makes no explicit reference to the group that he or she aims todisadvantage. Instead, the policy employs some facially-neutralsurrogate that, when applied, accomplishes the discriminator’shidden aim. For example, during the Jim Crow era, southern statesused literacy tests for the purpose of excluding African-Americans fromthe franchise. Because African-Americans were denied adequateeducational opportunities and because the tests were applied in aracially-biased manner, virtually all of the persons disqualified bythe tests were African-Americans, and, in any given jurisdiction, thevast majority of African-American adults seeking to vote weredisqualified. The point of the literacy tests was precisely suchracial exclusion, even though the testing policy made no explicitreference to race.

Notwithstanding the absence of an explicit reference to race in theliteracy tests themselves, their use was a case of directdiscrimination. The reason is that the persons who formulated,voted for, and implemented the tests acted on maxims thatdidmake explicit reference to race. Their maxim was something alongthe lines of: ‘In order to exclude African-Americans from thefranchise and do so in a way that appears consistent with the U.S.Constitution, I will favor a legal policy that is racially-neutral onits face but in practice excludes most African-Americans and leaveswhites unaffected.’ As with the Roma case, there wereagents whose aim was to disadvantage persons for belonging to a certainsocial group.

However, it is too simple to say that direct discriminationsimplyis intentional discrimination. Lippert-Rasmussenrightly points out that there can be cases of direct discriminationnot involving the intention to disadvantage anyone on account of hergroup membership (2014: 59–60). A disadvantage might, instead,be imposed as a result of a general indifference toward the interestsand rights of the members of a certain group. Thus, an employer mightuse hiring criteria that unfairly disadvantages women, not because theemployer intends to disadvantage women, but because the criteria areeasy to use and he simply does not care that women are unfairlydisadvantaged as a result. Such instances of discrimination might nothave the paradigmatic status that an example like the Roma case has,but they should be counted as forms of direct discrimination, becausethe disadvantageous treatment derives from an objectionable mentalstate of the agent. The same goes for disadvantageous treatment thatis the product of bias against a certain group, even when the biasdoes not involve an intention to treat the group disadvantageously. Apaternalistic employer might intend to help women by hiring them onlyfor certain jobs in his company, but, if the employer is motivated byunwarranted views about the capabilities of women, he is guilty ofdirect discrimination.

Acts of direct discrimination can be unconscious in that the agent isunaware of the discriminatory motive behind them. It is plausible tothink that in many societies, unconscious prejudice is a factor in asignificant range of discriminatory behavior, and a viableunderstanding of the concept of discrimination must be able toaccommodate the possibility. In fact, there is growing evidence thatunconscious discrimination exists (Jost et al. 2009; Payne and Cameron2010; and Brownstein and Saul 2016). And as Wax has noted, even theintention to disadvantage persons on account of their groupaffiliation can be unconscious (2008: 983).

2.2 Indirect Discrimination

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

It should be noted that the ECHR says that policies withdisproportionate effectsmay be discriminatory even if that isnot the aim of the policies. So what criterion determines when apolicy with disproportionately worse effects on a certain groupactually counts as indirect discrimination? There is no agreedupon answer.

The ECHR has laid down the following criterion: a policy withdisproportionate effects counts as indirect discrimination “ifit does not pursue a legitimate aim or if there is not a reasonablerelation of proportionality between means and aim” (Abdulaziz etal. v. U.K., 1985: para. 721). The Human Rights Committee of theUnited Nations has judged that a policy with disproportionate effectsis discriminatory “if it is not based on objective andreasonable criteria” (Moucheboeuf 2006: 100). Under the BritishRace Relations Act, such a policy is discriminatory if the policymaker“cannot show [the policy] to be justifiable irrespective of the… race … of the person to whom it is applied”(Osin and Porat 2005: 900). And in its interpretation of the CivilRights Act of 1964, the U.S. Supreme Court has held that, in judgingwhether the employment policies of private businesses are (indirectly)discriminatory, “[i]f an employment practice which operates toexclude Negroes cannot be shown to be related to job performance, thepractice is prohibited” (Griggs v. Duke Power 1971:431). Despite the differences, these criteria have a common thoughtbehind them: a disproportionately disadvantageous impact on themembers of certain salient social groups must not be written off asmorally or legally irrelevant or dismissed as mere accident, butrather stands in need of justification. In other words, the impactmust not be treated as wholly inconsequential, as if it wereequivalent, for example, to a disproportionate impact on persons withlong toe nails. Toe-nail group impact would require no justification,because it would simply be an accidental and morally inconsequentialfeature of the act, at least in all actual societies. In contrast, thethought behind the idea of indirect discrimination is that, if an acthas a disproportionately disadvantageous impact on persons belongingto certain types of salient social groups, then the act is morallywrong and prohibited by anti-discrimination law unless it can meetsome suitable standard of justification.

To illustrate the idea of indirect discrimination, we can turn to theU.S. Supreme Court case,Griggs v. Duke Power (1971). Acompany in North Carolina used a written test to determinepromotions. The use of the test had the result that almost all blackemployees failed to qualify for the promotions. The company was notaccused of direct discrimination, i.e., there was no claim that aracially discriminatory attitude was behind the decision of thecompany to use the written test. But the court found that the test didnot measure skills essential for the jobs in question and that thestate of North Carolina had a long history of deliberatelydiscriminating against blacks by, among other things, providinggrossly inferior education to them. The state had only very recentlybegun to rectify that situation. In ruling for the black plaintiffs,the court reasoned that the policy of using the test was raciallydiscriminatory, because of the test’s disproportionate racialimpact combined with the fact that it was not necessary to use thetest to determine who was best qualified for promotion.

2.3 Organizational, Institutional, and Structural Discrimination

In many cases, acts of discrimination are attributed to collectiveagents, rather than to natural persons acting in their individualcapacities. Accordingly, corporations, universities, governmentagencies, religious bodies, and other collective agents can act indiscriminatory ways. This kind of discrimination can be called“organizational,” and it cuts across the direct-indirectdistinction. Confusion sometimes arises when it is mistakenly believedthat organizations cannot have intentions and that only indirectdiscrimination is possible for them. As collective agents,organizations do have intentions, and those intentions are a functionof who the officially authorized agents of the institution are andwhat they are trying to do when they act as their official powersenable them. Suppose that the Board of Trustees of a university votesto adopt an admissions policy that (implicitly or explicitly) excludesJews, and the trustees vote that way precisely because they believethat Jews are inherently more dishonest and greedy than otherpeople. In such a cases,the university is deliberatelyexcluding Jews and is guilty of direct discrimination. Individualtrustees acting in their private capacity might engage in other formsof discriminatory conduct; for example, they might refuse to joinclubs that have Jewish members. Such a refusal would not count asorganizational discrimination. But any discriminatory actsattributable to individual board members in virtue of some officialpower that they hold would count as organizational discrimination.

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

When the rules of a society’s major institutions reliablyproduce disproportionately disadvantageous outcomes for the members ofcertain salient social groups and the production of such outcomes isunjust, then there is structural discrimination against the members ofthe groups in question, apart from any direct discrimination in whichthe collective or individual agents of the society might engage.This account does not mean that, empirically speaking, structuraldiscrimination stands free of direct discrimination. It is highlyunlikely that the reliable production of unjust anddisproportionately disadvantageous effects would be a chanceoccurrence. Rather, it is (almost) always the case that, at somepoint(s) in the history of a society in which there is structuraldiscrimination, important collective agents, such as governmental ones,intentionally created rules with the aim of disadvantaging the membersof the groups in question. It is also likely that some collectiveand individual agents continue to engage in direct discrimination insuch a society. But by invoking the idea of structuraldiscrimination and attributing the discrimination to the rules of asociety’s major institutions, we are pointing to a form ofdiscrimination that is conceptually distinct from the directdiscrimination engaged in by collective or individual agents. Thusunderstood, structural discrimination is, as a conceptual matter,necessarily indirect, although, as an empirical matter, directdiscrimination is (almost) always part of the story of how structuraldiscrimination came to be and continues to exist.

Also note that the idea of structural discrimination does notpresuppose that, whenever the rules of society’s majorinstitutions consistently produce disproportionately disadvantageousresults for a salient group such as women or racial minorities,structural discrimination thereby exists. Because our concern iswith the moralized concept of discrimination, one might think thatdisproportionate outcomes, by themselves, entail that an injustice hasbeen done to the members of the salient group in question and thatstructural discrimination thereby exists against the group.However, on a moralized concept of structural discrimination, theinjustice condition is distinct from the disproportionate outcomecondition. Whether a disproportionate outcome is sufficient forconcluding that there is an injustice against the members of the groupis a substantive moral question. Some thinkers might claim thatthe answer is affirmative, and such a claim is consistent with themoralized concept of structural discrimination. However, theclaim is not presupposed by the moralized concept, which incorporatesonly the conceptual thesis that a pattern of disproportionatedisadvantage falling on the members of certain salient groups does notcount as structural discrimination unless the pattern violates soundprinciples of distributive justice.

3. Challenging the Concept of Indirect Discrimination

The distinction between direct and indirect discrimination plays acentral role in contemporary thinking about discrimination. However,some philosophers hold that talking about indirect discrimination isconfused and misguided. For these philosophers, direct discriminationis the only genuine form of discrimination. Examining their challengeto the very concept of indirect discrimination is crucial indeveloping a philosophical account of what discrimination is.

3.1 Is Indirect Discrimination Really Discrimination?

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

Cavanagh holds a position similar to Young’s, writing thatpersons “who are concerned primarily with how things like raceand sex show up in the overall distributions [of jobs] have nobusiness saying that their position has anything to do withdiscrimination. It is not discrimination they object to, but itseffects; and these effects can equally be brought about by othercauses” (2002: 199). On Cavanagh’s view, then, if one finds itinherently objectionable for political officeholders to bepredominantly male, then one can sensibly charge that such adisproportion is unjust but cannot coherently claim that it is, initself, discriminatory.

Along the same lines, Eidelson contends that“‘indirect’ discrimination is not usefully thoughtof as a distinct form of discrimination at all, except as a piece oflegal jargon” (2015: 19). He writes, “Precisely becausethe connotation of ‘discrimination’ as an act … inwhich an agent is sensitive to some feature of the discriminatee, andengages in some manner of differential treatment, is inescapable,describing indirect discrimination as discrimination is a seriousobstacle to clear communication” (56).

The arguments of Cavanagh, Eidelson and Young raise a question that is not easyto answer, viz., why can indirect and direct discrimination belegitimately considered as two subcategories of one and the sameconcept? In other words, what do the two supposed forms ofdiscrimination really have in common that make them forms of the sametype of moral wrong? Direct discrimination is essentially amatter of the reasons or motives that guide the act or policy of aparticular agent, while indirect discrimination is not about suchreasons or motives. Even conceding that acts or policies ofeach type can be wrong, it is unclear that the two types are eachspecies of one and the same kind of moral wrong, i.e., the wrong ofdiscrimination. And if cases of direct discrimination areparadigmatic examples of discrimination, then a serious question arisesas to whether the concept of discrimination properly applies to thepolicies, rules, and acts that are characterized as“indirect” discrimination.

Moreover, there is a crucial ambiguity in how discrimination isunderstood that lends itself to conflating direct discrimination withthe phenomena picked out by ‘indirectdiscrimination’. Direct discrimination involves theimposition of disadvantages “based on” or “on accountof” or “because of” membership in some salient socialgroup. Yet, these phrases can refer either to a) the reasons thatguide the acts of agents or to b) factors that do not guide agents butdo help explain why the disadvantageous outcomes of certain acts andpolicies fall disproportionately on certain salient groups (Cf. Shin2010). In the Roma case, the disadvantage was “becauseof” ethnicity in the former sense: the ethnicity of theRoma was a consideration that guided the acts of the bar owner andbartender. In the Griggs case, the disadvantage was“because of race” in the latter sense: race did notguide the acts of the company but neither was it an accident that thedisadvantages of the written test fell disproportionately onblacks. Rather, race, in conjunction with the historicalfacts about North Carolina’s educational policies, explained whythe disadvantage fell disproportionately on black employees.

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

Nonetheless, the idea of indirect discrimination can help to highlighthow the wrongful harms of direct discrimination are capable oframifying via acts and policies that are not directly discriminatoryand would be entirely innocent but for the link between them and actsof direct discrimination. In the Griggs case, direct discriminationhad harmed blacks by putting them at an educational disadvantage.Even if the direct discrimination had ceased at some prior point, thepolicy of the company enabled the educational disadvantage to branchinto an employment disadvantage, thereby amplifying and perpetuatingthe wrongful harms of the original direct discrimination. Thelanguage of indirect discrimination can spotlight the link between thetwo forms of disadvantage and capture the idea that the wrongful harmsof direct discrimination should not be allowed to extend willy-nillyacross time and domains of life via otherwise innocent acts.

However, it is also true that the idea of indirect discrimination istypically understood in a broader way that does not require anyconnection to direct discrimination. Accordingly, in his discussionof how persons adhering to certain religious beliefs or practicesmight be put at an unjust disadvantage by an employer’s dresscode, Jones writes, “Indirect discrimination law aims …to eliminate inequalities of opportunity arising from religion orbelief” (170). For example, if a code excludes a form of dressthat persons adhering to a particular religion regard astheologically-favored, such as head coverings or veils, then theBritish law of indirect discrimination requires that the company grantan exemption to those persons, unless it can show that the code is aproportionate means for achieving a legitimate aim. On Jones’sview, the law thereby counters, albeit in a limited way, an unjustburden placed on certain religious adherents and promotes equalemployment opportunity.

The critics of the idea of indirect discrimination think that Jones isconflating distinct wrongs: the right of equal opportunity can beviolated by discrimination, but it can also be violated by other sortsof wrongs. Even if certain dress codes violate the right and do so ina way that tracks a particular religious identity, it does not followthat the codes are cases of wrongful discrimination. But Jones canrespond that, as long as the wrongful treatment tracks salient socialcategories, differentially disadvantaging persons belonging to such acategory, then characterizing the treatment as discrimination is inorder.

Still, critics will contend that the concept of indirectdiscrimination is problematic, because its use mistakenly presupposesthat the wrongfulness of discrimination can lie ultimately in itseffects on social groups. Certainly, bad effects can bebrought about by discriminatory processes, but critics argue that thewrongfulness lies in what brings about the effects, i.e., in theunfairness or injustice of those acts or policies that generate theeffects, and does not reside in the effects themselves. Addressingthis argument requires a closer examination of why discrimination iswrong, the topic of section 4. Before turning to that section, itwould be helpful to address a suspicion that might arise in the courseof pondering whether indirect discrimination really is a form ofdiscrimination.

3.2 Is the Dispute Merely Terminological?

One might suspect that any disagreement over whether indirectdiscrimination is really a form of discrimination is only aterminological one, devoid of any philosophical substance and capableof being adequately settled simply by the speaker stipulating how sheis using the term ‘discrimination’ (Cavanagh 2002:199). One side in the disagreement could, then, stipulate that, as itis using the term, ‘discrimination’ applies only to directdiscrimination, and the other side could stipulate that‘discrimination’, as it is using the term, applies todirect and indirect discrimination alike. However, the choice ofterminology is not always philosophically innocent or unproblematic. Apoor choice of terminology can lead to conceptual confusions andfallacious inferences. Cavanagh argues that precisely these sorts ofinfelicities are fostered when ‘discrimination’ is used torefer to a wrong that essentially depends on certain effects beingvisited upon the members of a social group (2002: 199). Moreover, thecritics and the defenders of the term ‘indirectdiscrimination’ presumably agree with one another that theconcept of discrimination possesses a determinate meaning that eitheradmits, or does not admit, of an indirect form of discrimination. Soit seems that the disagreement over indirect discrimination hasphilosophical significance.

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

4. Why Is Discrimination Wrong?

In examining the question of why discrimination is wrongful, let usbegin with direct discrimination and then turn to the indirectform. This approach will help shed some light on whether the wrongsinvolved in the two forms are sufficiently analogous to consider themas two types of one and the same kind of wrong.

4.1 The Wrongs of Direct Discrimination

Specifying why direct discrimination is wrongful has proved to be asurprisingly controversial and difficult task. There is generalagreement that the wrong concerns the kind of reason or motive thatguides the action of the agent of discrimination: the agent is actingon a reason or motive that is in some way illegitimate or morallytainted. But there are more than a half-dozen distinct views aboutwhat the best principle is for drawing the distinction between acts ofdirect discrimination (in the moralized sense) and those acts that arenot wrongful even though the agent takes account of another’ssocial group membership.

One popular view is that direct discrimination is wrong because thediscriminator treats persons on the basis of traits that are immutableand not under the control of the individual possessing them. Thus,Kahlenberg asserts that racial discrimination is unjust because raceis such an immutable trait (1996: 54–55). And discriminationbased on many forms of disability would seem to fit this view. ButBoxill rejects the view, arguing that there are instances in which itis justifiable to treat persons based on features that are beyondtheir control (1992: 12–17). Denying blind people adriver’s license is not an injustice to them. Moreover, Boxillnotes that, if scientists developed a drug that could change aperson’s skin color, it would still be unjust to discriminateagainst people because of their color (1992: 16). Additionally, aparadigmatic ground of discrimination, a person’s religion, isnot an immutable trait, nor are some forms of disability. Thus, thereare serious problems with the popular view that direct discriminationis wrong due to the immutable nature of the traits on the basis ofwhich the discriminator treats the persons whom he wrongs.

A second view holds that direct discrimination is wrong because ittreats persons on the basis of inaccurate stereotypes. When the stateof Virginia defended the male-only admissions policy of the VirginiaMilitary Institute (VMI), it introduced expert testimony that therewas a strong correlation between sex and the capacity to benefit fromthe highly disciplined and competitive educational atmosphere of theschool: those who benefited from such an atmosphere were, for the mostpart, men, while women had a strong tendency to thrive in a quitedifferent, cooperative educational environment. This defense involvedthe premise that the school’s admissions policy was notdiscriminatory because the policy relied on accurate generalizationsabout men and women. And in its ruling against VMI, the Supreme Courtheld that a public policy “must not rely on overbroadgeneralizations about the different talents, capacities, orpreferences of males and females” (U.S. v. Virginia1996: 533). But the Court went on to argue that “generalizationsabout ‘the way women are’, estimates of what isappropriate formost women, no longer justify denyingopportunity to women whose talent and capacity place them outside theaverage description” (550;ital. in original).

The Court’s reasoning implies that, even if gender were a very goodpredictor of the qualities needed to benefit from and be successful atthe school, VMI’s admissions policy would still bediscriminatory (Schauer 2003: 137–141). Accordingly, on theCourt’s view, direct discrimination based on largely accurategender generalizations can still be wrongful. For example, consider afire department whose policy is to reject all women applicants for thejob of fire fighter, on the grounds that the vast majority of personshaving the requisite physical strength for the job are men and thatthe policy saves the department the time and expense of testingpersons unlikely to meet the requirement. Even if the gendergeneralization underlying the policy is accurate, it is clear that thepolicy amounts to wrongful discrimination against women, deprivingthem of their right to equal employment opportunity. Thus, thewrongfulness cannot be explained simply by saying that thegeneralization is inaccurate.

A third view is that direct discrimination is wrong because it is anarbitrary or irrational way to treat persons. In other words, directdiscrimination imposes a disadvantage on a person for a reason that isnot a good one, viz., that the person is a member of a certain salientsocial group. Accordingly, Cotter argues that such discriminationtreats people unequally “without rational justification”(2006: 10). Kekes expresses a similar view in condemning race-basedaffirmative action as “arbitrary” (1995: 200), and, in thesame vein, Flew argues that racism is unjust because it treats personson the basis of traits that “are strictly superficial andproperly irrelevant to all, or almost all, questions of social statusand employability” (1990: 63–64).

However, many thinkers reject this third view of the wrongness ofdirect discrimination. Gardner argues that there is no“across-the-board-duty to be rational, so our irrationalityas such wrongs no one.” Additionally, Gardner contends that“there patentlycan be reasons, under some conditions,to discriminate on grounds of race or sex,” even though theconduct in question is wrongful (1998: 168). For example, arestaurant owner might rationally refuse to serve blacks if most of hiscustomers are white racists who would stop patronizing theestablishment if blacks were served (1998: 168 and 182). Theowner’s actions would be wrong and would amount to a rationalform of discrimination. Additionally, Wasserstrom arguesthat the principle that persons ought not to be treated on the basis ofmorally arbitrary features cannot grasp the fundamental wrong of directracial discrimination, because the principle is “too contextuallyisolated” from the actual features of a society in which manypeople have racist attitudes (1995: 161). For Wasserstrom,the wrong of racial discrimination cannot be separated from the factthat such discrimination manifests an attitude that the members ofcertain races are intellectually and morally inferior to the rest ofthe population.

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

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

A fifth view, defended by Arneson and Lippert-Rasmussen, explains thewrongfulness of discrimination in terms of a certain consequentialistmoral theory. The theory rests on the principle that every actionought to maximize overall moral value and incorporates the idea thatbenefits accruing to persons who are at a lower level of well-beingcount more toward overall moral value than benefits to those at ahigher level. Additionally, the view holds that benefits to personswho are more deserving of them count more than benefits to those whoare less deserving (Arneson 1999: 239–40 and Lippert-Rasmussen2014: 165–83). This approach holds that discrimination is wrongbecause it violates a rule that would be part of the social moralitythat maximizes overall moral value. Thus, Arneson writes that hisview “can possibly defend nondiscrimination and equalopportunity norms as part of the best consequentialist publicmorality” (2013: 99). However, for many thinkers, the view willfail to adequately capture a key aspect of discrimination, viz., thatdiscrimination is not simply wrong but that it is a wrongto thepersons who are discriminated against. One might argue indefense of Arneson that those who are victimized by discrimination canclaim that they deserve the opportunity that is denied them, butphilosophers like Cavanagh, who object to the merit approach, willhave the same objections to such a defense (Cavanagh 2002: 20 and24–25).

A sixth view, developed by Moreau, regards direct discrimination aswrong because it violates the equal entitlement each person has tofreedom. In particular, she contends that “the interest that isinjured by discrimination is our interest in …deliberative freedoms: that is, freedoms to have our decisionsabout how to live insulated from the effects of normatively extraneousfeatures of us, such as our skin color or gender” (2010:147). Normatively extraneous features are “traits that webelieve persons should not have to factor into their deliberations…as costs.” For example,“people should not be constrained by the social costs of beingone race rather than another when they deliberate about such questionsas what job to take or where to live” (2010:149).

Yet, it is unclear that Moreau’s account gets to the bottom ofwhat is wrong with discrimination. One might object, following thecriticisms leveled by Wasserstrom and Cavanagh at the arbitrarinessand merit accounts, respectively, that the idea of a normativelyextraneous feature is too abstract to capture what makes racialdiscrimination a paradigmatic form of direct discrimination. Thereare reasons that justify our belief “that persons should nothave to factor [race] into their deliberations …ascosts,” and those reasons seem to be connected to the ideathat racial discrimination treats persons of a certain race as havinga diminished or degraded moral status as compared to individualsbelonging to other races. The wrong of racial and other forms ofdiscrimination seems better illuminated by understanding it in termsof such degraded status than in terms of the idea of normativelyextraneous features.

A seventh view, developed by Hellman, holds that “discriminationis wrong because it is demeaning” (2018: 99). On her account, anact that is demeaning in the relevant way is one that “expressesthat a person or group is of lower [moral] status” and isperformed by an agent who has “sufficient social power for theexpression to have force” (2018: 102). For example, it isdemeaning, she argues, for an employer to require female employees towear cosmetics because such a requirement “conveys the idea thata woman’s body is for adornment and enjoyment by others”(2008: 42). Shin proposes a similar account in his discussion of equalprotection, arguing that “to characterize an action as unequaltreatment is to register a certain objection as to what, in view ofits rationale, the action expresses” (2009: 170). Offendingactions are ones that treat a person “as though that individualbelonged to some class of individuals that was less entitled to righttreatment than anyone else” (2009:169). And this seventh viewof what makes discrimination wrongful is reflected in the legalcaseObergefell v. Hodges, decided by the U.S. Supreme Courtand declaring unconstitutional laws prohibiting same-sex marriage. Inhis opinion for the Court, Justice Kennedy wrote that “thenecessary consequence [of such laws] is to put the imprimatur of theState itself on an exclusion that soon demeans or stigmatizes thosewhose own liberty is then denied. Under the Constitution, same-sexcouples seek in marriage the same legal treatment as opposite-sexcouples, and it would disparage their choices and diminish theirpersonhood to deny them this right” (2015: Slip Opinion at19).

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

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

The eighth view, along with the accounts of Hellman and Shin, rest onthe intuitively attractive idea that the wrongfulness of directdiscrimination is tied to its denial of the equal moral status ofpersons. The idea is at the center of Eidelson’s account, whichholds that “acts of discrimination are intrinsically wrong whenand because they manifest a failure to show the discriminatees therespect that is due them as persons” (2015: 7). Eidelson thendisaggregates two dimensions of personhood: all persons are 1)“of [intrinsic] value and equally so” and 2)“autonomous agents” (2015: 79), shaping their own livesthrough their choices. Discrimination can violate either or both ofthese dimensions, leading Eidelson to describe his account as a“pluralistic view” (2015: 19; cf. Beeghly on “hybrid”theories, 2018: 95). Thus, a physician who refuses to treat would-bepatients due to their race fails to recognize and appropriatelyrespond to their equal intrinsic value, and a fire department thatautomatically rejects women who apply to be fire fighters violates thewomen’s autonomy by failing to make reasonable efforts todetermine whether they have endeavored to develop the requisitephysical strength.

Eidelson’s account explicitly dispenses with the social saliencerequirement, instead requiring only that the discriminator beresponding to some perceived difference of whatever kind between thevictim and other people. However, it is not clear that this approachcan draw a viable line between wrongful acts of discrimination, on theone hand, and wrongful acts not helpfully characterized as“discrimination,” on the other. Murderers fail to respectthe personhood of their victims, and most murders involve someperception of difference between the victim and others. But murdersare typically regarded as acts of discrimination only when they are“hate crimes” connected to the victim’s membershipin some salient social group. So Eidelson’s account seemsoverinclusive. Yet, Eidelson can reply that any account thatincorporates the social salience requirement will be underinclusive,because it will fail to count as discrimination the actions of anemployer who hires workers on the basis of hair color in a societywhere hair color is not socially salient (2018: 28–30).

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

For defenders of the social salience requirement, the value of theidea of discrimination is that it can be used to pick out andhighlight injustices that track socially salient categories. And astrong reason for having a concept that captures such injustices isthat they are the among the most widespread and serious over thecourse of history (see section 6 below). From this perspective,Eidelson’s hypothetical case of the idiosyncratic employer whodiscriminates on the basis of hair color should not dictate how thecore of the moralized concept of discrimination is constructed orconstrued but rather should be regarded as peripheral to the centralreason for having a concept of discrimination. Additionally, as wewill see in the next section, this perspective casts light on why theidea of indirect discrimination is a valuable part of our moralthinking.

4.2 The Wrongs of Indirect Discrimination

The most egregious forms of indirect discrimination are typicallystructural, due to the pervasive impact of a society’s basicinstitutions on the life-prospects of its members (Rawls 1971:7). Indirect discrimination is structural when the rules and normsof society consistently produce disproportionately disadvantageousoutcomes for the members of a certain group, relative to the other groupsin society, the outcomes are unjust to the members of the disadvantagedgroup, and the production of the outcomes is to be explained by thegroup membership of those individuals. Cass Sunstein nicely captures thewrong of this form of indirect discrimination in the course ofexplaining his antidiscrimination principle, which he calls the“anticaste principle.” He writes, “Themotivating idea [for the anticaste principle] is that without goodreason, social and legal structures should not turn differences thatare both highly visible and irrelevant from the moral point of viewinto systematic social disadvantages. A systematic disadvantage is onethat operates along standard and predictable lines in multiple andimportant spheres of life” (1994: 2429). In a similar vein,Catharine MacKinnon finds structural discrimination against women to beintolerable because it consists of “the systematicrelegation of an entire group of people to a condition ofinferiority” (1987: 41).

Two related wrongs belonging to structural discrimination can bedistinguished. First is the wrong that consists of society’s majorinstitutions imposing, without adequate justification, relativedisadvantages on persons belonging to certain salient socialgroups. Accordingly, it is wrong for society’s basic rules to deny towomen or to racial or religious minorities opportunities for personalfreedom, development, and flourishing equal to those that men orracial and religious majorities enjoy. Second is the wrong of placingthe members of a salient social group in a position of vulnerabilityto exploitation and domination as a result of the denial of equalopportunities and the imposition of other kinds of relativedisadvantage. Accordingly, it is wrong for a society to make womenvulnerable to sexual exploitation and domination at the hands of menby the imposition of various economic and social disadvantagesrelative to men.

In contrast, the wrongs of non-structural forms of indirectdiscrimination seem to be dependent on structural (or direct)discrimination. Consider theGriggs case. Thecompany’s promotion policy was not part of the wrong involved insociety’s basic institutions imposing relative disadvantages onblacks. But the policy did have some connection to structuralracial discrimination and to the widespread direct discriminationagainst blacks that existed prior to and contemporaneous with thepolicy. The policy helped to perpetuate the unjust disadvantagesthat were due to such structural and direct discrimination, even thoughthe policy was not needed to serve any legitimate business purpose, andthat was why the policy was wrong. Or at least that is what theproponents of the idea of indirect discrimination appear to have inmind when they talk about non-structural forms of indirectdiscrimination.

Are the wrongs of indirect discrimination sufficiently similar to thewrongs of direct discrimination that it is reasonable to say that theyare, in fact, two different types of one and the same wrong? We haveseen that the accounts of the wrong of direct discrimination are manyand various. But abstracting from those differences, critics of theidea of indirect discrimination might argue that discrimination isessentially a process-based wrong, rather than an outcome-based one,and that only direct discrimination is process-based. In other words,only with direct discrimination is there a defect in how some outcomeis brought about, rather than in what the outcome itself is. On thisview, discriminating against people is similar to having someone whohas been bribed serve as a judge in an ice-skating competition: justas the biased judging taints the process by which places are awardedin the competition, discrimination taints the process by whichopportunities and other social goods get distributed among the membersof society.

However, one can understand indirect discrimination as involvingprocess-based wrongs, although the wrongs do not necessarily occur atthe retail level of the practical reasoning of specific agents.Consider the structural form of indirect discrimination.Disproportionately disadvantageous outcomes do not, bythemselves, amount to structural discrimination, even when thoseoutcomes fall on the shoulders of the members of a salient social groupsuch as women or racial or religious minorities. There must alsobe a linkage between membership in the group and the disadvantageousoutcomes: group membership must help explain why the disproportionatelydisadvantageous outcomes fall where they do. This explanationwill proceed at the wholesale level of macro-social facts about thepopulation and the various groups that constitute it. But therequirement of a linkage shows that how the disproportionate outcomesare brought about is essential to the existence of structuraldiscrimination. There must be social processes at work that, asSunstein puts its, “turn differences that are both highly visibleand irrelevant from the moral point of view into systematic socialdisadvantages” (1994: 2429). It is true that thedifferences do not need to be literally visible; they need only besocially salient. But the main point is that there is somethingmorally wrong with social processes that consistently but avoidablyturn such differences into relative disadvantages for the members ofsalient groups, such as women or racial or religious groups. Aparallel is thereby established with direct discrimination, in whichthere is something morally wrong with a practical-reasoning processthat treats sex, race, or religion as grounds for treating persons ashaving a degraded or diminished moral status.

With the non-structural form of indirect discrimination, the parallelto the wrong of direct discrimination is even stronger, because themorally flawed process does occur at the retaillevel. InGriggs, the company’s decision to use certainexams to determine promotions contributed to the unjust disadvantagessuffered by blacks from structural and direct discrimination. Yet,the use of the exams was apparently not necessary to determine whocould best perform the jobs in question or to meet any otherlegitimate purpose of the business. It is plausible to say, then, thatthe company’s decision process wrongly counted for nothing thepromotion policy’s contribution to the perpetuation and evenexacerbation of unjust disadvantages from which blacks alreadysuffered. This process-based wrong is at the level of a specificagent, albeit a collective agent. The difference with directdiscrimination is that it is a moral failure of omission, i.e.,failing to take appropriate account of the impact of the promotionpolicy on blacks, rather than a failure of commission, such asdeliberately excluding blacks from better-paying positions. In eithercase, though, an agent has engaged in a morally flawed process ofpractical reasoning in which the flaw concerns the role thatconsiderations of salient group membership play.

There is a case to be made, then, that the wrongs of indirectdiscrimination, structural and non-structural, are importantlyparallel to those of direct discrimination. The case will look lessconvincing to Eidelson (2015: 28–30) and others who think of(moralized) discrimination as fundamentally a retail-level wrong withno necessary connection to socially-salient groups. For thosethinkers, it might be an injustice if the basic structure of a societyoperates so that certain socially-salient groups lack equality ofopportunity, but the injustice is not necessarily a matter ofdiscrimination. Yet, for thinkers who would contend that the value ofthe idea of discrimination derives from the fact that it can pick outsystemic wrongs linked in a certain way to socially-salient groups,then direct and indirect discrimination represent distinct butparallel versions of the same type of wrong, and the term‘indirect discrimination’ is not simply “a piece oflegal jargon” (Eidelson 2015: 19) but a valuable term in ourmoral lexicon.

5. Which Groups Count?

According to the account on offer in this entry, discriminationwrongfully imposes relative disadvantages or deprivations on personsbased on their membership in some salient social group. But whichsalient groups count for the purpose of determining whether an act isan act of discrimination? This question is at the heart of many heatedpolitical and legal disputes, such as the controversies over therights of gays and trans persons. The question is also central to amatter that is less politically prominent than such disputes but whichhas important political and philosophical implications. The questionis whether or not the members of socially dominant groups can, inprinciple, be victims of discrimination. It is sometimes said that, inthe United States and other Western countries, whites cannot really bediscriminated against on account of their race, because whites are thesocially dominant racial group whose members are systematicallyadvantaged by their being white. Thus, in his account of racialdiscrimination, Scanlon acknowledges that his view entails that, inthe U.S., at least, whites can discriminate against blacks but notvice-versa. He holds that discrimination is “unidirectional,[applying] only to actions that disadvantage members of a group thathas been subject to widespread denigrations and exclusion.” Thisimplication derives from his claim that it is “crucial to racialdiscrimination … that the prejudicial judgments it involves arenot just the idiosyncratic attitudes of a particular agent but arewidely shared in the society in question and commonly expressed andacted on in ways that have serious consequences” (2008:73–74). The idea that discrimination is unidirectional is alsoimplied by Fiss’s understanding of discrimination in terms of“the perpetual subordination” of “speciallydisadvantaged groups …[whose] political power is severelycircumscribed” (1976: 154–155).

Although is it undeniable that the members of socially dominant groupstypically enjoy a host of unfair advantages, it might be a mistake tohold that such persons cannot be victims of discrimination. Belief inthe moral inferiority of the members of other racial groups is notexclusive to dominant groups. Although he subsequently repudiated theview, Malcolm X famously regarded whites as a race of devils, and thebelief was not some idiosyncrasy of his but rather a doctrine of theNation of Islam. Moreover, subordinate group members are sometimes inposition to deny members of a dominant group employment or othervaluable opportunities. When such opportunities are denied based on abelief in the moral inferiority of the dominant group, it would seemthat the dominant group members have been discriminated against.

Scanlon and others might argue that the unidirectional view fitsbetter than a bidirectional one with the main reason for having aconcept of discrimination, viz., to pick out systemic injusticeslinked to membership in a socially salient group. The discriminatoryactions of dominant group members typically combine to create suchinjustices, while actions of subordinate group members wronglydisfavoring on the basis of prejudiced attitudes persons in thedominant group fail to combine in that way.

However, history shows that there are certain kinds of socialidentities on whose basis persons have often been condemned as moralinferiors and victimized by serious systemic injustice. Thoseidentities are tied to race, religion, race, nationality, ethnicity,and sexual orientation, among other social categories incorporatedinto reasonable antidiscrimination principles. Wrongs done to personsin a dominant group on the ground that their group consists of morallyinferior beings is not the same as the discriminatory wrongs thatcombine to create serious systemic injustice, but there is more than apassing resemblance between the two sets of wrongs. And shifts in therelative power positions of groups in a society can readily transmutewrongs against a dominant group into ones against a subordinate group,especially when the wrongs are driven by beliefs about groups moralinferiority/superiority. Perhaps, then, we should say that the centralcases of discrimination are ones perpetrated against subordinate groupmembers but that dominant groups members can also be discriminatedagainst, even though wrongs of the latter sort do not typicallycombine to form systemic injustices at the broad social level.

Perhaps the most heated of contemporary debates over the question ofwhich social groups count for purposes of determining whether or notan act is an act of discrimination are those concerning sexualorientation and gender presentation. Many persons hold the view thatit is discrimination whenever LGBTQ persons are denied the same set oflegal rights and powers that heterosexual and cis-gender persons have,but others reject such a view. Philosophers and political theoristscan be found on both sides of this divide, although the predominantview among such thinkers is that itis discriminatory to denyLGBTQ persons the same legal rights and powers that others enjoy(Macedo 1996; Corvino 2017; Mikkola 2018; Brief of PhilosophyProfessors 2019, and, dissenting, Finnis 1997 and Anderson and Girgis2017). These debates are ultimately ones of moral principle, restingon the question of whether government wrongs LGBTQ persons if itdenies them any such rights or powers. The concept of discriminationcannot, by itself, settle the question, because the concept only tellsus that it is properly applied to the imposition of wrongfuldisadvantages on account of salient group membership. The concept doesnot specify whether it is wrongful to impose disadvantages on personson account of their sexual orientation, gender presentation, or anyother particular social category. Substantive moral reasoning isneeded to address the matter (see section 8 below).

6. What Good is the Concept of Discrimination?

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

Until the middle of the 19^th century, critical moralreflection and discussion proceeded largely without the concept ofdiscrimination. But over the course of the first half of the 20thcentury, moral reflection became increasingly sensitive to the factthat many, even most, of the large-scale injustices in history had agroup-based structure: certain members of society were identified byothers as belonging to a particular salient group; the group memberswere consistently denigrated and demeaned by the rest of society andby its official organs; and many serious relative disadvantagesconnected to this denigration and demeaning, such as materialdeprivation and extreme restrictions on liberty, were imposed on themembers of the denigrated group. It is this historical reality,apparently deeply rooted in human social life and in the tendency ofhumans to form in-groups and out-groups, that gives the concept ofdiscrimination its point and its usefulness. The concept highlightsthe group-structure of those unjust deprivations andrestrictions.

At the same time, the group structure of these injustices does notmean that the groupas such is the party that is wronged;rather, the wrongs are ultimately wrongs to the individual personsmaking up the group. Accordingly, the concept of discrimination hasbecome a useful tool for representing many serious wrongs, whileavoiding the implication that these wrongs are ultimately done to thegroups as such.

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

Nonetheless,contra Young’s understanding,discrimination against the members of a group can be, and often is,systemic. The reason is that wrongs against individuals on account oftheir group membership, especially when perpetrated by members ofdominant groups, are often not aberrant but form broad socialpatterns. Accordingly, the idea of discrimination can capture thesystemic wrongs to which Young refers, while preserving the key moralthought that the wrongs are done to individuals. Thus, discriminationtypically involves exploitation, marginalization, powerlessness and soon, where those wrongs are perpetrated against individuals and, at thesame time, track salient social categories.

Yet, Young is right insofar as she is claiming that systemic wrongscan persist even as direct discrimination recedes: indirectdiscrimination can, as we have seen, amplify and perpetuate thewrongful harms of diminishing direct discrimination. Additionally,Young correctly suggests that the idea of discrimination is too weakto adequately capture certain sorts of extreme systemic maltreatmentand abuse. When disadvantageous treatment exceeds a certain level ofseverity, it is no longer suitablesimply to speak ofdiscrimination. Enslavement and genocide are forms of wrongfuldiscrimination, but because of the extremity of the mistreatment theyinvolve, it would be morally obtuse to characterize them asdiscrimination and leave the matter at that. Clear-headed moralthinking demands that their extremity be registered in how they arecharacterized, and the idea of discrimination is not, by itself,equipped for the task. Accordingly, the invention of the term‘genocide’ by Raphael Lemkin (1944 [1973: 79]) and theopprobrium that later attached to it were important steps forward inunderstanding the distinctions among the different ways in whichhumans abuse one another on the basis of the salient groups to whichthey belong.

7. Intersectionality

Kimberlé Crenshaw (1998 [1989]) introduced the idea ofintersectionality in her account of the distinctive form ofdiscrimination faced by black women. Intersectionality refers to thefact that one and the same person can belong to several distinctgroups, each of whose members are victimized by widespreaddiscrimination. This overlapping membership can generate experiencesof discrimination that are very different from those of persons whobelong to just one, or the other, of the groups. Thus, Crenshawargues that “any analysis that does not take intersectionalityinto account cannot sufficiently address the particular manner inwhich Black women are subordinated” (1998: 315).

Crenshaw’s idea of intersectionality applies beyond race andgender to cover any social groups against which discrimination isdirected: discrimination is inflected in different ways dependingon the particular combination of social groups to which those personsdiscriminated against belong. And one implication ofintersectionality is that the disadvantages suffered by some personswho are discriminatedagainst on account of belonging to acertain group might be offset, partially or fully, by advantages thosesame persons gain by being discriminatedin favor of due totheir belonging to other groups. As Crenshaw notes, women who arewealthy and white are “race- and class-privileged,” even asthey are disadvantaged by their gender (1998: 314).

The idea of intersectionality threatens to destabilize the concept ofdiscrimination. The idea highlights what is problematic about anyaccount of discrimination that abstracts from how different salientidentities converge to shape the experiences of persons. But, taken tothe hilt, the idea of intersectionality might appear to undermine anyfeasible account of discrimination. Reflection on Crenshaw’s ownintersectional account illustrates the point: she examines theintersection of race and gender but abstracts from other salientsocial identities, such as disability status, sexual orientation, andreligion. Any of those additional identities can and do converge withrace and gender to form distinctive experiences of discrimination, andso abstracting from those identities seems problematic from theperspective that the idea of intersectionality opens to us. Yet, nofeasible treatment can take into account all of those identities andthe many more socially salient identities that persons have incontemporary societies.

Nonetheless, judgments about discrimination can and do reveal genuinewrongs that persons suffer due to their salient group membership andexpose actual patterns of disadvantage and deprivation that amount tosystemic injustices against the members of certain salientgroups. It is not necessary to take account of everythingrelevant to a phenomenon in order to understand and represent importantaspects of it. Thus, notwithstanding the complications introducedby intersectionality, judgments about direct and indirectdiscrimination can tell us something important about who is wrongfullydisfavored, and who is wrongfully favored, by the actions of individualand collective agents and by the rules of society’s majorinstitutions.

8. Religious Liberty and Antidiscrimination Laws

Like the right against discrimination, the right of religious libertyis enshrined in many domestic and international legal documents. Yet,the two rights often seem to be in conflict with each other. Forclaims of religious liberty are frequently made by persons who wish toengage in activities that appear to amount to discrimination. Ofparticular importance are cases in which religious institutions andreligiously-motivated individuals claim to be exempt from therequirements of antidiscrimination laws.

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

In theHosanna-Taborcase (2012), the U.S. Supreme Courtunanimously held that, under the Constitution, there was a“ministerial exception” immunizing religious organizationsfrom lawsuits brought against them by employees claiming that they hadbeen illegally discriminated against by the organization. Theexception applies in the paradigmatic case to employees who performreligious functions, such as ministers and priests, but the CourtinHosanna-Tabor ruled that the exception also applied in thecase of a church employee whose job was the teaching of secularsubjects. The employee had brought her lawsuit under a statuteprohibiting employment discrimination on the basis of disability. TheCourt held that the church was immune to the suit.

Chambers rejects the ministerial exception, even when it is limited toemployees who perform spiritual functions. Accordingly, she arguesthat the Roman Catholic Church should be legally prohibited, on theground of “the fundamental value of gender equality”(2008: 141), from ordaining only men. She points to the harmssuffered by women who wish to become priests but also the damage doneto children who are taught by their Church that “women are notfit to lead their fellow worshippers” (141). And Chamberscontends that “gender equality is … of sufficient importanceto merit [legal] intervention” (144) in a religiousorganization’s choice of spiritual leaders.

By contrast, Laborde contends that “the government cannot[legitimately] force the Roman Catholic Church to ordain femaleclergy, as long as the established doctrine of the church is that onlymen can be priests” (2017: 180). She argues that, if a certaingroup is a voluntary association “that individuals join topursue a conception of the good that is central to theiridentity,” then the group has a valid claim to “someimmunity from the reach of antidiscrimination legislation”(174). Such immunity enables the members “to live withintegrity,” i.e., to live in accordance with “their deepcommitments and beliefs” (174). Laborde adds that any groupclaiming an exemption from antidiscrimination law can be legitimatelyrequired to openly profess the discriminatory doctrine that is thebasis for its claim.

At the same time, Laborde rejects the scope of the ministerialexception as presented inHosanna-Tabor. She contends thatthe Court’s ruling grants religious groups “an exorbitantright” (177) that exceeds their valid moral claim to choosetheir own leaders and members.Contra the ruling, Labordedoes not think that the claim holds against the teachers of secularsubjects at church schools or any other employees whose jobs do notconsist in religious work. Laborde agrees with the Court that thesecular judiciary should not address theological questions, but sherejects the Court’s view that it is beyond the jurisdiction ofthe judiciary to examine whether a proffered non-discriminatorytheological reason for an employment decision is merely a pretext forsome hidden discriminatory motive.

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

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

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

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

Watson and Hartley reject the “more traditional liberalviews”on the ground that, even if there are alternative venuesat which same-sex couples can be served, the couples are still treatedas second-class citizens, because they are denied on grounds of thealleged inferiority of their partnership the full range of servicesoffered to the public. Vallier might reply that equal citizenship issecured as long as the couples have alternative venues, but it is notclear how convincing such a reply is, given his admission that theactions of the bakers “can stigmatize homosexual couples throughtheir denial of service” (17). It would seem that the stigmaamounts to a stamp of inferiority, publicly-enacted throughexclusionary actions and affixed to persons in same-sex partnerships,regardless of the availability to them of alternative venues.

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

However, Watson and Hartley would reply that there is an importantdistinction between a church, which is a “private association,composed of individuals who affirm, roughly, the same doctrine,”while a bake shop is a “business of public accommodation”(125). Yet, the question arises: If the social effects on genderinequality of the Catholic Church’s male-only priesthood can besufficiently blunted by the background culture, why are the paralleleffects of anti-gay bake shops on the equal citizenship of gays notlikewise blunted?

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

Vallier’s view requires a different account of what citizens oweeach other. The “more traditional liberal views” to whichhe refers contend that commercial enterprises should be placed in theprivate sphere and that antidiscrimination laws applying toprivately-owned businesses are thereby illegitimate (see Epstein 1995and the Civil Rights Cases 1883). But Vallier does not appear toembrace that aspect of the traditional liberal views, instead arguingthat the disparaging treatment of gays by the bakers is madepermissible (in part) by the fact that gays can receive service atother bake shops. The underlying premise appears to be that it is notreally a duty of citizens to treat one another as equals, even in thepublic sphere. For if the bakers did have a duty to treat all of theirfellow citizens, including gays, as equals in that sphere, then thebakers could not be relieved of the duty on the ground that there wereother citizen-bakers who did treat gays as equals. I am not morallylicensed to treat you with disrespect if only there are many otherswho treat you respectfully. So the disagreement between Vallier andWatson/Hartley seems to come down to the issue of exactly what dutiescitizens owe one another, which in turn rests on the large question ofwhat a society of free and equal citizens would look like.

9. Conclusion

The concept of discrimination provides a way of thinking about acertain kind of wrong that can be found in virtually every society andera. The wrong involves a group-based structure that works incombination with relative deprivations built around the structure. Thedeprivations are wrongful because they treat persons as having adegraded moral status, but also because the deprivations tend to makemembers of the group in question vulnerable to domination andoppression at the hands of those who occupy positions of relativeadvantage. It is true that there has been confusion attending theconcept of discrimination, and there will long be debates about thebest way to understand and apply it. However, the concept has provedto be a useful one for representing in thought and combating in actiona kind of wrong that is deeply entrenched in human socialrelations.

Bibliography

Legal Cases and Documents

Abdulaziz et al. v. U.K. European Court of Human Rights, App. No. 9214/80; decided 28 May 1985. [Available online]
Brief of the Philosophy Professors asAmici Curiae in Supportof the Employees, Bostock v. Clayton County, No. 17-1618. 2019.[Available online]
Brown v. Board of Education 347 U.S. 483 (1954). [Available online]
Civil Rights Act of 1866. [Available online]
Civil Rights Cases 109 U.S. 3 (1883). [Available online]
Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW). [Available online]
Convention on the Elimination of All Forms of Racial Discrimination (CERD). [Available online]
European Convention for the Protection of Human Rights. [Available online]
Griggs v. Duke Power 401 U.S. 424 (1974). [Available online]
Hosanna-Tabor v. EEOC 565 U.S. 1. (2012). [Available online]
Obergefell v. Hodges 576 U.S. ___ (2015). [Available online]
Shanaghan v. U.K. European Court of Human Rights, App. No. 37715/97; decided 4 May 2001. [Available online]
United States v. Virginia 518 U.S. 515 (1996), [Available online]

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