Equality and Discrimination

Ever since the publication of John Rawls’ A Theory of Justice in 1971, Anglo-American philosophers have discussed the nature of equality and its place in a theory of distributive justice. They have asked whether it is equality per se that is valuable, or priority for those who are worst off, or perhaps sufficiency—that is, ensuring that each person has enough. They have also asked about the ‘currency’ of egalitarian justice: what is it that should be distributed equally? Is it welfare, resources, opportunities, or perhaps what Amartya Sen called ‘capabilities’? In response, philosophers such as Elizabeth Anderson, Samuel Scheffler and Joshua Cohen have argued that it is a mistake to think of the value of equality solely in distributive terms. Rather, within a democratic society, we need to aim at relational equality—that is, relationships of equal status, in which no one is unfairly subordinated to others. Relational equality requires the redistribution of certain goods; so it is not unrelated to distributive equality. But from the standpoint of relational equality, particular distributive goals matter only insofar as they help us achieve a society in which no one is relegated to the status of a second-class citizen. And to achieve such a society, we need to pay particular attention not just to how various goods are distributed, but also to inappropriate expressions of deference toward certain groups and censure of others, and to policies and structures that inadvertently leave certain groups unable to see themselves as full and equal participants in society. This description of relational equality sounds very much like a description of the aims of discrimination law. Most preambles to anti-discrimination statutes indicate that the purpose of such legislation is to prevent the unfair subordination of certain members of society and to create a climate in which people publicly recognise each other as deserving of equal respect. Discrimination laws apply not only to the state—through constitutional rights or statutes requiring non-discrimination by the government—but also to ordinary individuals, and in particular to those individuals who have power over other people’s access to basic social institutions, such as places of employment and education, and providers of goods and services. So these laws do seem to aim at ensuring, not just that the state treats us as equals, but that we treat each other as equals, giving everyone equal access to these basic social institutions without showing undue deference to some groups or undue censure of others. Discrimination law also aims to rectify certain distributive injustices, both between individuals and between groups. Those who have been unfairly denied certain goods are given them or their monetary equivalent. The discriminator is usually required to adjust his policies so that in the future, similar injustices will not occur. And sometimes quotas are imposed, for the benefit of the broader group marked out by a particular ground of discrimination. It may therefore seem surprising that discrimination and discrimination law have not been a part of our mainstream philosophical discussions about equality. Instead, they have been treated as a specialised area that does not hold much of interest to philosophers who are working on broader debates about the nature and value of equality. It is only recently that moral and political philosophers have taken an interest in discrimination and have initiated a debate about why it is wrong or unfair and what the purpose of discrimination law is. Why was this, and why has the situation changed? How do current debates among philosophers working on discrimination law relate to the debates about distributive and relational equality that I have just mentioned? And what are the most pressing currently unresolved issues in the philosophy of discrimination? These are the questions I shall be addressing in this chapter.

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