The Moral Seriousness of Indirect Discrimination

Twenty years ago, Canadian equality rights activists Sheilagh Day and Gwen Brodsky criticised the widespread belief that there are deep moral differences between direct and indirect discrimination. Many people, they noted, assume ‘that direct discrimination is more loathsome, more morally repugnant’ than indirect discrimination ‘because the perpetrator intends to discriminate or has discriminated knowingly.’ By contrast, they suggested, indirect discrimination, even when justifiably prohibited by law, is commonly held to be ‘’innocent,’ unwitting, accidental, and consequently not morally repugnant.’ These assumptions about direct and indirect discrimination are still very much a part of our shared moral thought about discrimination; and they also linger within anti-discrimination law itself, purporting to justify certain features of these laws. The aim of this chapter is to question these assumptions about the relative moral seriousness of the two forms of discrimination. I shall argue that indirect discrimination is often just as morally problematic as direct discrimination, and its agents often just as culpable. But first, we need to look more closely at these assumptions. What is it, exactly, that we commonly assume? We tend to assume that agents involved in acts of wrongful direct discrimination are generally more culpable than those who discriminate indirectly, even in cases where we agree that the indirect discrimination can justifiably be prohibited by law, and even in cases where we agree that it is morally impermissible. This is a judgement about the culpability of the agent. We also assume that acts of direct discrimination are, when wrong, seriously problematic from a moral standpoint. By contrast, we are less certain about the moral status of acts and policies that indirectly discriminate. Even if we agree that a government is justified in legally prohibiting policies that are indirectly discriminatory, we may wonder whether the policies are all morally impermissible; and even when we view them as morally impermissible, we may feel that they are rarely as bad as most cases of wrongful direct discrimination. We would probably hesitate before ever calling any indirectly discriminatory policy ‘morally repugnant’. This second set of judgements is about the moral status of acts and policies. A set of parallel examples may help both to draw out these assumptions and to clarify the way in which the distinction between direct and indirect discrimination is commonly drawn. First, consider direct discrimination. In the UK, it is defined as an act or rule that treats one individual less favourably than another ‘because of’ a certain protected characteristic, such as race or sex or sexual orientation. The most common way to demonstrate that such treatment has taken place ‘because of’ a protected characteristic is to show that the agent intended to distinguish between this individual and others using this characteristic; but in cases where intent is difficult to prove or where the agent has something closer to an unconscious bias against members of this group, it suffices under UK law to show that the category of the individuals who are disadvantaged and the category of those who are correlatively advantaged ‘coincide exactly with the respective categories of persons distinguished only by applying a prohibited classification’. In other words, direct discrimination seems to involve acts that—either consciously or unconsciously—aim at disadvantaging certain individuals because they possess or are presumed to possess a certain characteristic. It is natural therefore to assume that the agents of direct discrimination are culpable. Consider, for instance, a case of direct discrimination that arose recently in Canadian sports: the Quebec Soccer Federation’s explicit ban on turbans on the soccer field. In the wake of this ban, the Federation was accused of racism and insensitivity. Because the ban singled out a particular garment from a particular religion, in circumstances where there were no reasons to think that the garment in any way impeded the game, it is difficult to see how the Federation could have been motivated by anything but a combination of religious and racial prejudice. Their aim was to exclude Sikhs from the soccer field, simply because they disliked them. The Federation therefore seemed morally culpable, and the policy, morally repugnant.

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