Harm and Fault in Discrimination Law: The Transition from Intentional to Adverse Effect Discrimination
Bibliographic record
Abstract
A central trend in the development of discrimination law, in every jurisdiction, has been the movement from a requirement of intention to ground a complaint to the recognition as actionable of indirect or adverse effect discrimination. Initially, liability for discrimination was circumscribed very narrowly, requiring a form of intention that was tantamount to malice. The practical consequences of this narrow conception were apparent early on, and those concerned about them have long been agitating, with some success, for a reading or redrafting of anti-discrimination statutes that would yield broader liability. Advocacy (both practical and theoretical) in the discrimination law context has tended to swing wildly between two extremes -- from a virtually exclusive focus on the moral blameworthiness of the defendant to an attempt to focus solely on the effects of discrimination on its victims. This article seeks to reexamine the gradual expansion of liability in discrimination law from the perspective of the key conceptual elements of liability in tort law in order to reexamine the normative underpinnings of this area of law. Viewed from a tort perspective, the enlargement of the scope of discrimination law can best be understood as resulting from an implicit expansion of the concept of fault appropriate to this context of human interaction, a change linked to an expanding conception of the human interests that discrimination law protects from infringement. From its beginnings, discrimination law implicitly recognized that deliberately refusing to contract with others out of ill will or prejudice toward an important aspect of identity such as race or sex constituted an affront to human dignity that could not be justified by the value of freedom of contract. The expansion of liability over time reflects an expansion of the concept of human dignity bound up with fair access to important opportunities and due consideration of the needs and interests of differently situated groups in the design of important social institutions. This conception of dignity constructs it as an objective interest that can be affected by implicitly discriminatory behavior as well as by conduct motivated by prejudice, requiring more robust justification than the mere claim to liberty. This approach can explain many of the advances in modern discrimination law without resorting to end-state distributive principles.
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How this classification was reachedexpand
Full frame machine prediction
Teacher imitationNot calibrated prevalence, not ground truth. Human validation pending. The Gemma side is a direct model label for every work in the frame, read from the title-only record. The Codex side is a classifier learned from the 10,348 direct Codex labels and calibrated to design-weighted sample rates; fields without enough sample support carry no Codex call. Candidate is the union of the two sides; consensus is their intersection. These outputs are machine_predicted_unvalidated and are not human labels.
Distilled classifier scores by category (both heads)
| Category | Codex | Gemma |
|---|---|---|
| Metaresearch | 0.008 | 0.015 |
| Meta-epidemiology (narrow) | 0.000 | 0.000 |
| Meta-epidemiology (broad) | 0.001 | 0.001 |
| Bibliometrics | 0.002 | 0.001 |
| Science and technology studies | 0.005 | 0.069 |
| Scholarly communication | 0.009 | 0.018 |
| Open science | 0.002 | 0.008 |
| Research integrity | 0.010 | 0.014 |
| Insufficient payload (model declined to judge) | 0.002 | 0.000 |
Machine scores (provisional)
The two teacher heads of the student model, read on this work. A score orders the frame for review; it never asserts a category, and the validation status ships verbatim with every row.
Baseline scores from an immature model (maturity gate not passed, 7 training rounds). Scores rank; they never assert a category.
score_only:v0-immature-baseline · verbatim from the scoring run: score_only means the number may rank works, and no category label ships from itClassification
machine, unvalidatedMachine predicted; a candidate call from one source (direct Gemma or distilled Codex), not a consensus.
How this classification was reached, model by model and score by score, is at the end of the page under "How this classification was reached".