Discrimination (17): Human Rights and Intersectionality

Intersectionality is an interesting concept because it’s related to the interdependence of human rights. (Sorry for the alliteration). Kimberlé Crenshaw was the first to propose the term for the purpose of describing interacting forms of discrimination. Some examples. A black woman may have relatively worse life outcomes compared to a white woman who is similar to her in most respects, even though both suffer gender discrimination. The combination of racism and sexism makes it much harder for the black woman to find a job. She will have to overcome anti-female prejudice as well as racism on the job market. An immigrant woman may have a hard time escaping sexual violence because her irregular status makes it difficult for her to go to the police. And so on.

Victims of discrimination and oppression are sometimes very different from each other, depending on the various types of discrimination that combine in order to make their lives difficult. A white upper-class able-bodied female citizen may be discriminated in some ways, but her fate is unlike the one suffered by a poor black illegal immigrant mother. Intersectionality makes for more intense discrimination.

And there’s an additional claim: people’s outcomes are made worse because of the ways in which different forms of discrimination combine (the sum being larger than the addition of the parts). Two or three types of discrimination can be mutually reinforcing. They do not act independently of one another but instead shape one another. Racial stereotypes for example need to be broken down by gender in order to see how different gender representations combine with racial stereotypes in order form an overall discriminatory ideology.

Take for example the Jezebel character. A Jezebel is a loose, sex-craved woman who is often depicted as stereotypically black, i.e. with big lips and funny hair. It’s racist prejudice about sexual morals of black people combined with a gender stereotype. (The idea that it’s men who want more sex is a relatively recent one; and “the sex-mad negro” representation is still around). It’s also no surprise that Reagan’s “welfare queen” was black. Being both poor and a “lazy and untrustworthy black person”, the welfare queen encapsulated a toxic mix used to criticize poor blacks until this day.

The concept of intersectionality “grew up” in the context of feminism. Feminists at some point in the 60s or 70s realized that although the focus on gender as a cause of discrimination is necessary, gender isn’t the sole factor determining the fate of women. A white middle class woman suffers a different form of oppression compared to a poor black women or a disabled woman. Intersectionality (or intersectionalism) became the effort to understand how gender, race and class combine to limit women’s life prospects. Since then, the word has transcended the realm of feminist theory and is now applied to all people who suffer a combination of different forms of oppression. 

All this has practical implications. For example, if you want to take a stand on more female CEO’s or quota for women in parliament you may inadvertently leave existing class structures intact, even if you include race in your quota demands (black women can have class privilege too). On the other hand, if you focus only on racism you may be blind to the specific suffering of black women. Intersectionality is therefore kind of a call for solidarity across victimized groups. 

Time to get back to human rights, I hear you say. The notion of interdependency in rights theory can be likened to intersectionality. If both your right to a decent standard of living and your political rights are violated, then these violations affect each other. For a poor person it’s much harder to reclaim her political rights because her struggle to survive takes precedence over other concerns. However, without her political rights, it’s much more difficult to escape poverty. The squeaky hinge gets the oil. I think it’s fair to say that this interdependence of rights is similar to the notion of intersectionality.

More posts in this series are here.

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Discrimination (16): When Is It OK to Discriminate?

Discrimination is generally blameworthy and therefore often illegal as well. However, there are situations in which it’s acceptable to discriminate and unacceptable to legislate against discrimination. I’m not referring to rules that apply unequally to different people in order to produce a more equal outcome, such as rules regarding affirmative action (which are sometimes claimed to be a form of positive discrimination); nor am I referring to rules regarding different height requirements for male and female candidate police officers. These are two examples of rules that discriminate in order to make outcomes more equal, and they can therefore, paradoxically, be seen as anti-discriminatory. Conversely, rules that apply equally to all can have a “disparate impact“: e.g. one uniform and “neutral” height requirement for police officers would mean that fewer women will be allowed in the police force and would therefore have a discriminatory impact on women. Even if such rules are not intended to discriminate against women, they obviously do. (I’ll come back to intent in discrimination at the end of this post).

So, I’m thinking about rules like those, or rules that not only have unequal outcomes but also apply unequally (take the rules against gay marriage for instance). Can some such rules, which clearly discriminate some groups of people (given a certain understanding of discrimination), ever be justified?

I think they can. Discrimination can be unobjectionable if the benefits outweigh the harm done by discrimination. “Benefits” meaning not the benefits from the discriminator’s point of view, since those always, by definition, outweigh the harms for others – that’s the point of discrimination. We have to look at the benefits generally speaking, from a neutral point of view. For example, the safety of airline passengers and hence their rights to life and physical security outweigh the discrimination imposed on people who are not allowed to be pilots because of their bad eyesight. Another example: the importance of a good education for our children outweighs the discrimination imposed on people who want to be teachers but don’t have the qualifications. Discrimination of people with a physical disability or intellectual deficiencies is acceptable and even beneficial in these cases, not because those who can become pilots and teachers benefit from the exclusion of rivals, but because society as a whole benefits, and because this benefit outweighs the harm done to those excluded.

The downside of the consequentialist balancing inherent in these examples is that it is seldom clear what the exact harms and benefits of discrimination are. After all, every historical instance of discrimination was once defended on the basis of its beneficial consequences: equal voting rights for women was supposed to lead to irrational politics; legalization of homosexuality would lead to immorality; miscegenation would lead to the downfall of the white race etc. However, these examples don’t prove that there can’t be any forms of discrimination that can have some real and overriding benefits, and in fact we daily assume that they have: we give good teachers a job as a teacher, we give talented people higher wages etc. because we believe that society as a whole benefits from this.

Maybe we shouldn’t talk about discrimination in cases of acceptable and beneficial discrimination. I argued here that we should probably limit the concept to those cases in which the equal rights of those who are discriminated are violated and, more specifically, are violated for no other reason than their membership of a socially salient group. The would-be pilots and teachers in the examples above don’t have an equal right to be pilots or teachers or to any other specific job. There is no such right. There is a general right to work, but that right isn’t violated since people with bad eyesight or without the qualifications to become good teachers have ample opportunities to find a job elsewhere (under normal economic conditions).

Also the second condition for discrimination is absent in these examples: the people in question are certainly not part of socially salient groups (which is another way of saying that people with bad eyesight or without the qualifications to become good teachers are not regularly put at a disadvantage in society). Hence they are not discriminated when they are excluded from certain jobs on the basis of qualifications.

If, however, the would-be pilots and teachers were black – and therefore part of a socially salient group – and if they were excluded for no other reason than their skin color, and if this exclusion would violate their right to work (or any other right), then there would be discrimination. Their exclusion would violate their right to work when they regularly face this kind of exclusion, not when that sort of things happens only exceptionally and when they therefore have ample opportunities elsewhere.

This last point about alternative opportunities is crucial. Single instances of discrimination usually don’t violate people’s rights and therefore aren’t really discrimination according to the definition given here. Discrimination requires violations of people’s rights and violations based on people’s membership in socially salient groups. And violations of rights imply the absence of alternative opportunities  (I once gave the example of one lonely restaurant owner refusing to serve blacks, or the isolated landlord refusing to rent a house to Italian immigrants).

In this older post I argued that forcing some people to stop discriminating would violate their rights, such as their right to free association, to property, to religion etc. and that it can only be acceptable to force them to stop if the discrimination they inflict is so widespread and historically deep that it limits the rights and options of the targets of discrimination.

Nevertheless, this rule still leaves us with a few hard cases. The rights of discriminators may still receive priority even when the discrimination does severely limit the options and rights of target groups. Suppose there’s a general disapproval to marry “outside of one’s race” among the majority white population in a society. Most of us would not want legislation against this kind of discrimination because that would drastically limit the right to marry of the discriminators. Discrimination here severely impacts the choices and opportunities of non-whites, and yet seems acceptable. The whites in question may be immoral and repugnant, but this doesn’t render their rights null and void and doesn’t justify legislation prohibiting an exclusive preference for white husbands and wives. The reason, I think, is that it’s very difficult to do something about the actions of the whites. You can force people to hire blacks, serve them in your restaurant, admit them in your school etc. But you can’t force people to marry someone. So, the system I set up here to separate cases of discrimination from other cases isn’t perfect. It won’t solve some hard cases, but maybe those can never be solved.

A final word about intent. There’s no mention of intent in the definition of discrimination given here. That means that rules with a disparate impact can be cases of wrongful discrimination even if there is no intent to discriminate. Take again the case of height requirements for police officers: a single height requirement for both genders is not necessarily discriminatory, but when it is part of a wider social pattern of gender inequality, then it may violate women’s equal rights because the total set of gender biased rules makes it difficult for women to have ample employment opportunities elsewhere. Women are then a socially salient group. Intent is irrelevant here. Even if the height requirement is motivated by efficiency reasons, it contributes to discrimination and rights violations. The goal of anti-discrimination is equal protection of rights, whatever the causes of rights violations.

Now, imagine the height requirement isn’t part of a wider pattern of gender inequality. In that case, women have ample opportunities elsewhere and their equal right to work is therefore not violated. Hence there is no discrimination.

Discrimination (15): Is Assortative Mating a Form of Discrimination?

Assortative mating is the selective mating between individuals whose choice of marriage partners is determined by similarity of social environment. (It’s a form of homogamy, the mating of like with like). One example is the preference to mate with individuals of the same race. Take this case:

Is it racist when a white woman declares, when asked out on a date, that she will only date white men? … She, a white women, took her boss, an African American, to court on sexual harassment charges. During the hearings, he commented that she had said to him that she did not date African Americans, and he maintained that that was racist. (source)

Let’s not focus on the African American man’s apparent attempt to deflect harassment charges by playing the race card. That’s not what I want to discuss here – and, anyway, the story cited above doesn’t provide sufficient information to allow us to judge the intentions of either party. Let’s instead take the general case of a person of one race refusing to date and marry a person of another race for no other reason than race.

Is this kind of assortative mating racist? I think it is. It shows a general dislike of people of another race. It’s prejudiced and bigoted and it implies writing off whole groups of people on the sole basis of their skin color. However, is it also discrimination? I guess not. If it were discrimination, we would be allowed to use the power of the law to fight it, and no one wants the law to mess with people’s mating choices as long as both partners are consenting adults. (Polygamy may come to mind as a counterexample, but my view on the legality of polygamy is much more liberal than the conventional view; I’ll explain in another post).

No one has a right to his or her mate of choice, and no one can use the force of law to compel the consent of this mate of choice. Hence, there’s a lot of racism and bigotry that we can’t fight with the force of law and thus have to accept. We can try to change people’s minds over time, educate future generations and so on, but if this doesn’t convince everyone to regard all individuals as potential mates then there’s no more we can do.

I argued here that we can only speak about discrimination when there is a violation of rights. The account above is yet another example.

More posts in this series are here.

Discrimination (14): Lookism

Lookism means discrimination, stereotyping or prejudice based on how people look, and preferential treatment of the physically attractive, the tall, the non-fat and those with the right skin color. I feel the need to revisit the topic, since a previous post on heightism – one form of lookism – was a complete failure. While trying to make the point that heightism, historically speaking, caused much less harm than other forms of prejudice – such as racial or gender prejudice – I managed to offend a lot of short people, and was scolded for it in comments. In my defense, I wanted to talk about preferential treatment based on a few inches of height difference; I understand perfectly well that there is a stigma attached to very short people. However, it seems that this point didn’t come across and I take full responsibility for that.

So, in order to state things clearly from the start and avoid a similar miscommunication: I agree that lookism is a real and serious form of discrimination imposing real harm on those who suffer from it. How serious compared to other types of discrimination? Let’s just ignore that question for the moment and focus on the topic at hand. “Serious enough” will do.

In general, it helps to understand lookism as a form of beauty bias. Many instances of preferential treatment or discrimination based on the way people look are actually about the perceived beauty or lack of beauty of the targets. That’s true even for heightism, since height is often associated with beauty and lack of it with ugliness. Beautiful people – or, better, people generally considered as beautiful – get a lot of advantages in life. They earn more, even in professions where looks wouldn’t seem to matter and even if they aren’t more intelligent or productive. Finding a job, getting a promotion and getting a loan are some of the things that are easier with good looks. And beautiful people are also better at finding mates and getting elected in democratic elections. I could go on.

Some of these advantages result not from direct discrimination by others who prefer beautiful people. Beauty may result in higher self-confidence, and then it’s self-confidence rather than beauty that convinces others to give beautiful people a job or a promotion. But the fact that beauty comes with self-confidence is probably the result of society’s bias towards beauty. There’s also some evidence that taller people have higher average cognitive abilities, which would mean that a wage premium for height is justifiable and not a form of discrimination. Still, an abilities gap doesn’t rule out lookism, since taller children may be treated preferentially by their parents and educators, giving them a head start. This head start then explains their supposedly higher abilities later in life. Even if rewarded according to their abilities, we’re still talking about discrimination.

While some of the undeserved advantages that go to the beautiful are difficult to correct (we wouldn’t want to regulate mating), others are not, given the right form of anti-discrimination legislation. Some form of correction via legislation is necessary especially when preferential treatment results in violations of equal human rights for some. However, legislation can have some serious drawbacks (see here), so we’ll have to be careful.

More posts in this series are here.

Discrimination (13): Is Disability Just a Case of Bad Luck or Is It Discrimination?

When people think about disability they usually don’t see it as a moral issue. A disabled person supposedly suffers from bad luck, and the problems she encounters while living her life with a disability don’t result from the decisions or actions of her fellow citizens. They are instead caused by ill health or by biological and anatomical inadequacies, things for which no one is to blame. Brute misfortune, that is all.

Of course, a disability can be caused by someone else’s misconduct, for example industrial pollution or paralysis following an accident caused by someone else. However, let’s focus on blameless disability, the kind that is not anyone’s fault.

There’s a problem with the view that this kind of disability is no more than misfortune. The threshold level of normal human functioning that determines the difference between disability and non-disability isn’t just determined by biological facts, but also by social practices and the artificial social environment. For example, imagine a society that has developed technologically up to a point where people don’t have to use their hands anymore. No more computer keyboards, steering wheels in cars, remote controls etc. Let’s assume that everything that needs to be done can be done by programming and brain power (not a far-fetched assumption). A person who loses her hands in an accident will not be considered “disabled” in such a society. This accident will not push her below the threshold level of normal human functioning. In fact, most likely it won’t even be viewed as an accident, but rather a small nuisance, depending on the level of pain involved. Much like we in our existing societies react to a bee sting. It’s usually not disabling.

Now, when we take the same example of a person losing her hands, but situate her in a country such as the U.S. today, then we would say that she is disabled and that she has fallen below the threshold level of normal human functioning. But the reason we say this isn’t simply a biological or anatomical one, otherwise she would also have to be disabled in the imaginary society described a moment ago. The reason we say that she is disabled depends on the social circumstances and the social system in which she finds herself after losing her hands. Because U.S. society has been designed in such a way that people need to use their hands a lot of the time, we say that someone without hands is disabled. The decision to count someone as disabled has less to do with biology and anatomy than with the social practices and the artificial social environment we live in. The level of functioning a person can achieve depends less on her biological or anatomical abilities than on the artificial social environment in which she finds herself.

Hence, disability isn’t just something that happens to people; it’s something that we as a society have decided should happen to people. There’s nothing about our society that necessarily relegates people without hands to the category of the disabled. On the contrary, we have willingly designed our society in such a way that people without hands are disabled. We could just as well design our society in another way. Technology permitting, of course, but technology is also – up to a point – a choice: we just simply decided to develop technologies and the wider social environment in such a way that they don’t really take into account the needs of people without hands.

The fact that we designed our society in the way we did seems to indicate that we don’t care a lot about the disabled, at least not enough to do something for them. And such an absence of care can be viewed as a type of discrimination. After all, until some decades ago, men didn’t much care about the education of women, even though society was quite able to give women the same kind of education as men. The relative lack of education of women wasn’t a necessary fact of life but a choice. And that choice was a symptom of discrimination.

Of course, the analogy is shaky because gender discrimination was and is often a conscious choice, whereas the disabled are only rarely consciously disadvantaged. However, as I’ve stated before, the fact that discrimination is unconscious doesn’t automatically excuse it.

More on luck. More posts in this series.

Discrimination (12): Is Price Discrimination Immoral?

Price discrimination – or price differentiation – is a commercial policy. A seller may want to sell identical goods at different prices to different classes of customers in order to increase market shares, reach otherwise unreachable groups of customers or profit from customers’ willingness to pay.

The question is whether we should treat this type of discrimination like we treat other types. In other words, should we label price discrimination as something that is morally reprehensible, and should we also make it illegal (which are two different things – lying is often reprehensible but only rarely illegal)?

The answer is: it depends. Some forms of price discrimination are morally neutral or even praiseworthy. Offering students or poor people discounts for museum tickets or public transport has some moral benefits. Other forms, however, are clearly reprehensible:

[O]ne field experiment examined discrimination against disabled people in the context of car repairs, finding that disabled customers received higher quotes than the non-disabled customers. To get at the nature of this discrimination, the authors first conducted a survey, which revealed that “mechanics believe the disabled approach 1.85 body shops for price quotes while the non-disabled approach 2.85.”  In a second field experiment, the authors instructed participants to say the phrase, “I’m getting a few price quotes.”  This significantly changed outcomes — disabled participants received much lower offers: “Importantly, the lower offers received by disabled testers after signaling a willingness to search are not statistically different from those received by the abled,” write the authors. (source)

This is an example of so-called third degree price discrimination, which is in fact a form of statistical discrimination because the price is differentiated on the basis of an attribute of a customer segment (in this case disability), and this attribute is taken as a proxy of the customers’ ability or willingness to pay (in this case, the disabled are willing – or believed to be willing – to pay more because they can’t or won’t be troubled with shopping around).

Clearly, not all third degree price discrimination or statistical discrimination is wrong (student or senior discounts are cases of third degree price discrimination), but in this example it is wrong. Offering the disabled higher prices simply because they are disabled and hence less likely to shop around, is clearly immoral, even if it’s not based on animus against the disabled. It aggravates the disadvantage that nature has imposed on the disabled, and it’s a typical case of exploitation.

Exploitation occurs when one party in a voluntary exchange between two (or more) partners gets an unfair price for the goods or services exchanged, and when this party enters the exchange from a disadvantaged position. A price is unfair when it is below what it would have been in a fair auction. It is beyond doubt that a fair auction would have allowed the disabled, who enter the exchange from a disadvantaged position, to pay less.

More posts in this series are here.

Discrimination (11): Types of Discrimination

After this post about the reasons why discrimination is wrong, I thought it might be useful to add something about the differences between some types of discrimination and in the process link to some older and forgotten posts.

The most common type or at least the most commonly referenced type of discrimination is explicit discrimination: “whites only” signs, apartheid, miscegenation laws etc. When this type starts to become more and more unacceptable, hidden discrimination often takes over. Someone who wants to discriminate no longer does so explicitly – because that’s illegal or socially frowned upon – but instead adopts a policy or a law that doesn’t reference the target group, that remains facially neutral and that, when applied, accomplishes the intended discrimination. The most famous examples are the Jim Crow era literacy tests for voters. These tests effectively excluded blacks from the franchise although blacks weren’t explicitly targeted. Decades of educational discrimination made sure that very few blacks passed the tests.

Both these forms of discrimination are intentional, but some cases of discrimination are unintentional. People may not intentionally aim to impose disadvantages on other groups, but the structures of society, as they have been influenced by decades of previous – intentional – discrimination, make it very hard to avoid the imposition of systematic harm on some groups. The enduring effects of slavery in the U.S. are an example. Some would argue that this isn’t discrimination at all, since discrimination is typically defined on the basis of intentions and not purely in terms of consequences or outcomes.

Then there’s unconscious discrimination (see also here). People often have unconscious motives for their actions. And finally there’s statistical discrimination (see also here), which is discrimination that doesn’t arise from prejudice or bias, but occurs when people use aggregate group characteristics, such as group averages, to evaluate individual personal characteristics (for example, employers avoiding to hire African Americans because it’s statistically more likely for an African Americans to be an ex-convict).

More posts in this series are here.

Discrimination (9): The Beauty Bias

Although someone’s looks and attractiveness aren’t explicitly mentioned in human rights law as prohibited grounds of discrimination, we can safely say that the general prohibition on discrimination does apply to discrimination based on appearance, just like it applies to discrimination of people belonging to a certain race, sex, religion etc. This statement may sound extreme – and some will call it the first step on a slippery slope – but I think it’s a justified statement given the fact that appearance based discrimination can be just as harmful as more traditional types of discrimination.

People generally prefer beautiful individuals and express this preference by giving them certain advantages. One symptom of the beauty bias is the beauty premium: in the U.S., and probably in most other countries, an attractive person earns more: the premium is about $250.000 over the course of a lifetime, compared to the least attractive. Monthly averages point to a difference between 10 and 12%, even in professions where looks wouldn’t seem to matter. Daniel Hamermesh (in “Beauty Pays“) found evidence of differences in promotions, risks of unemployment, credit facilities etc.

A number of role-playing, laboratory studies have demonstrated that more attractive men are more often hired, but the laboratory data for women are less consistent. … more attractive men had higher starting salaries and they continued to earn more over time. For women, there was no effect of attractiveness for starting salaries, but more attractive women earned more later on in their jobs. (source)

There’s no reason to believe that beautiful people deserve this kind of advantage since they generally aren’t more intelligent, productive, etc. (although some disagree about productivity). It’s simply the case that people who decide about employment, pay and career prefer beautiful people. Beauty brings along a degree of self-confidence I guess, which may persuade (possible) employers and makes them believe – correctly or not – that with higher self-confidence comes higher productivity. But that isn’t all that’s happening:

even when the experimenters controlled for self-confidence, they found that employers overestimated the productivity of beautiful people. (source)

So it looks like the beauty bias is just that, a bias, much like the bias against women and blacks.

The beauty bias can be measured because a

common standard of beauty does exist. Based on an attractiveness scale of one to five, most people surveyed will come to near agreement on a test subject’s looks, a finding that holds true across all cultures. (source)

By the way, the beauty bias operates in other areas as well. Beautiful candidates are more successful in democratic elections. And ugly criminals face rough justice:

Stephen Ceci and Justin Gunnell, two researchers at Cornell University, gave students case studies involving real criminal defendants and asked them to come to a verdict and a punishment for each. The students gave unattractive defendants prison sentences that were, on average, 22 months longer than those they gave to attractive defendants. (source)

Also:

11 percent of surveyed couples say they would abort a fetus predisposed toward obesity. College students tell surveyors they’d rather have a spouse who is an embezzler, drug user, or a shoplifter than one who is obese. (source)

Of course, earning a little less and having a smaller chance of being elected aren’t the world’s gravest human rights violations. It’s not as if we still banish the ugly from the public square:

In the 19th century, many American cities banned public appearances by “unsightly” individuals. A Chicago ordinance was typical: “Any person who is diseased, maimed, mutilated, or in any way deformed, so as to be an unsightly or disgusting subject … shall not … expose himself to public view, under the penalty of a fine of $1 for each offense.” (source)

However, the evidence above suggests that beauty does play an important role in many different areas, making the impact of appearance based discrimination potentially large. Hence the obvious question: should ugly people be protected against discrimination? Should there be a law making it illegal to pay people more simply because of their looks? After all, there seems to be no difference between this form of discrimination and more traditional forms. All forms of discrimination impose a disadvantage on a group of people for no other reason than their group membership.

However, legal protections would require a public determination of beauty and ugliness. And they would require the ugly to step forward and claim damages or benefits. That’s stigmatizing, and open to discussion: there is, as stated, a common standard of beauty, but there can still be disagreement on specific cases, especially along the margins. Beauty is to some extent in the eye of the beholder, and if you’re labeled as ugly by some or even by the majority, there may still be others who think the world of you. Including yourself. De gustibus non est disputandum. The same isn’t true for gender, sexual orientation and race (with some caveats for the latter). When governments sanction a universal scale of attractiveness we’re going down a dangerous route because this can ossify opinions about beauty and lead to even more discrimination. And then there’s the issue of self-esteem: would people be willing to apply for official recognition of their ugliness, even if the money is good?

Discrimination (8): What’s Wrong With Discrimination?

Let me try out a few possible answers to the question in the title of this post:

  1. Is discrimination wrong because it’s differential treatment of persons? That can’t be the case, because we treat people differently all of the time: some people earn more than others, have better grades in school, have a lot of friends or none at all, etc. None of those types of differential treatment seem to pose a moral problem per se.
  2. Is discrimination wrong because it’s differential treatment of persons based on the mere fact of their membership of a group? That can’t be true either. We don’t allow the blind to drive a car, we don’t allow the mentally ill to run for political office, and we don’t allow inmates to move freely across the country. Again, usually this is done without violating our moral intuitions. Differential treatment based on group membership may be wrong in some cases but it’s not discrimination per se.
  3. Is discrimination wrong because it’s disadvantageous treatment of some relative to others? Again, the answer is no. We certainly impose a disadvantage on inmates when we confine them to a prison building.
  4. Is discrimination wrong because it’s disadvantageous treatment that is morally objectionable? If I, as the sole racist member of a tolerant society, refuse to eat at a restaurant owned by an African American or serve African Americans in my own restaurant, I act in a morally objectionable way, and impose a small disadvantage on some people. And yet these people are not discriminated against in any meaningful sense of the word.
  5. Is discrimination wrong because it’s differential treatment of persons based on some of their immutable characteristics, for example their gender or skin color? Again, the answer has to be no. Sometimes it’s justified to treat persons differently based on their immutable characteristics or on characteristics that are beyond their control. We don’t allow one legged basketball players to compete in the NBA. And, conversely, sometimes it’s not justified to treat persons differently based on their self-chosen lifestyle. Forcing vegetarians to eat meat, for example, is wrong.
  6. Is discrimination wrong because it’s differential treatment of persons based on characteristics that are superficial or irrelevant, for example when we refuse to eat somewhere simply because the restaurant owner is black? That can’t be the case either. If I prefer to marry a blond because I believe blond women are better wives, I’m not discriminating against non-blonds. And if I’m the only one refusing to eat in a black man’s restaurant, it’s hard for him to claim that he’s discriminated against.
  7. Is discrimination wrong because it fails to treat people as individuals and relies on inaccurate stereotypes? For example, because I believe African Americans can’t cook properly and I therefore don’t bother to check out the food of an individual African American restaurant owner? Again, discrimination must be something else, for two reasons. First, there are laws against discrimination based on correct stereotypes, so-called statistical discrimination. Employers can’t just refuse to hire young women simply because young women are more likely to have children and hence be absent from work. Second, I may rely on inaccurate stereotypes and not engage in discrimination. For example, if I organize a successful boycott of German classical music based on the erroneous belief that this music is inferior to French classical music, I don’t discriminate orchestras or record labels that produce German classical music.

So then, why is discrimination wrong? Discrimination is wrong because it is a denial of rights. Not all denials of rights are discrimination – for example I imagine that Kim Jong Il denies the rights of all North Koreans consistently without discrimination. But discrimination is a denial of rights, and a denial of a particular type, namely the unequal denial of rights.

But not every case of unequal denial of rights is a case of discrimination. For instance, if some people in police custody are beaten up and others aren’t that’s not necessarily discrimination. Discrimination is the unequal denial of the rights of members of a socially salient group, and for no other reason than their membership of that group. It must be a socially salient group, i.e. a group that is an important and stable distinction in society, not a fleeting and inconsequential identity such as the group of people with blue eyes or people of the age of 40. Those groups aren’t salient and hence won’t be discriminated.

So, discrimination occurs when rights are granted to some and taken away from others, for no other reason than their membership of a socially salient group.

What exactly is a denial of rights? It’s an action (or a law, a custom etc.) that makes it impossible or very difficult to exercise one’s rights. That means that there won’t be discrimination if for example one lonely racist shop owner refuses to service blacks. Those blacks can easily exercise their rights by avoiding the racist shop. Only if the number of such cases is high and those cases occur systematically will there be denial of rights and hence discrimination. The policy of an army to reject homosexuals is discrimination because homosexuals can’t simply go to another army to serve their country. Racial discrimination at the time of Jim Crow and segregation was real discrimination because it substantially reduced the options of blacks who could not exercise their rights elsewhere.

If we revisit some of the examples given above we can see that they are not necessarily cases of discrimination as it is defined here. Giving people low grades or low salaries can be justified if it’s done for good reasons, i.e. not simply because of people’s membership of groups. But even if it’s done because of membership, it’s not discrimination if it’s isolated and if people can easily go elsewhere for their proper grades or salaries. Discrimination isn’t just about unequal treatment but also about options. Not all unequal treatment is discrimination. It’s discrimination when it also takes away the rights of those treated unequally. And their rights are taken away, not when there’s a single instance of unequal treatment based on group membership, but when there are many such instances and people can’t easily exercise their rights elsewhere. Their rights in these examples are the right to education and the right to fair wages. The same is true in the case of the sole racist member of a tolerant society refusing to eat at a restaurant owned by an African American. The restaurant owner isn’t denied his right to sell his food because one guy refuses to eat there.

Discrimination (7): Statistical Discrimination v. Background Checks?

Employers often use background checks before deciding to hire someone. For example, they may check the criminal record of job candidates, their credit scores, health history etc. It’s somewhat understandable although not always acceptable that they are reluctant to hire someone who has been in jail, has been sick for a long time, or has proven to be undisciplined by not paying her bills.

Let’s focus on ex-convicts for the moment. These people have a hard time as it is, sometimes even for no good reason because they shouldn’t have been incarcerated in the first place (I argued here that many countries, and especially the U.S., put too many people in jail). So, allowing employers to use criminal background checks can force ex-convicts into a vicious circle: unable to find a job, they may be forced to go back to crime.

Furthermore, there’s a racial aspect to all of this: in the U.S., African Americans are more likely to be ex-convicts. According to some, this racial discrepancy is precisely the reason to allow criminal background checks. If employers aren’t allowed to check individual candidates, they will resort to statistical discrimination: they know that blacks are more likely to have a criminal record and so they won’t hire any blacks at all, just to be safe.

However, if you espouse this argument in favor of background checks, you essentially want to make things better for one disadvantaged group – blacks, who are generally disadvantaged in employment – by making things worse for an even more disadvantaged group, namely ex-convicts. And that’s assuming that employers will hire more black people if they can use criminal background checks; but assuming that means assuming there’s no racism. Helping a disadvantaged group by harming an even more disadvantaged group is plainly absurd, and you can only fail to see that it’s absurd if you have an overriding fear of government regulation. Regulation should be kept in check but not at any price. I think in this case regulating businesses and outlawing background checks is the appropriate thing to do.

Let’s turn briefly to another type of background check: credit scores.

[M]illions of Americans, as a direct consequence of looking for work, have lower credit scores. … The use of credit checks in employment decisions should be banned. It is a form of discrimination against the poor — the codification and enforcement of class barriers. It is therefore a form of discrimination against those groups more likely to be poor. (source)

It seems there’s a

growing tendency of HR departments to check the credit scores of potential employees apparently deeming this data to be an important predictor of employee behavior. This creates a Catch-22 scenario for the unemployed where you can’t improve your credit score unless you get a job and you can’t get a job until you improve your credit score. (source)

Apart from the obvious fact that credit scores seem to be a type of knowledge that is much less useful for an employer compared to a criminal record – if your house burned down and your credit score is low as a result, does that make you a bad employee? – there’s a real issue for the poor here. They shouldn’t be discriminated against just for being poor. It’s not just a lack of conscientiousness or discipline that can lower your credit score. Back luck and poverty won’t help either. Some say the free market and competition will take care of this: employers stupid enough not to hire good poor people simply because they have a credit problem will lose out. Their competitors who don’t engage in credit checks will hire them, and those businesses will acquire a commercial advantage. I don’t know. Seems awfully optimistic to me.

Discrimination (6): Should People Be Liable For Unconscious Discrimination?

First of all, it’s evident that people often have unconscious motives for their actions. For example, parents “wishing the best” for their children can act out of frustration about their own past failures. So it’s likely that some acts of discrimination are based on similar “deep” motives. Some of us who genuinely believe that we are colorblind may still avoid black neighborhoods at night, cross a lonely street when a tall black male comes our way, or favor a CV sent in by someone with a “‘Caucasian” name. Tests have shown that people are more biased than they admit to themselves.

So we may be violating anti-discrimination laws without “really” and consciously wanting to. You could say that in such cases we shouldn’t be prosecuted for breaking the law, because there is no intent on our part. Discrimination takes place but no one really wants it to take place. True, normally there’s an intent requirement when deciding liability: if you drive your car and you hit someone who crosses the road where he or she shouldn’t do so, you’re not criminally liable. You killed a person but didn’t intend to. In some cases, the lack of intent diminishes rather than removes liability: if you’re in a fight with someone and the other person dies because of your actions, you won’t be charged with homicide but with the lesser crime of manslaughter if you didn’t intend to murder.

As the example of manslaughter already makes clear, intent isn’t always necessary for liability. Hence, lack of intent can’t be the reason not to make unconscious discrimination a crime.

Anyway, intent or the absence of it is often very difficult to prove. In the case of homicide/manslaughter, you can use witness accounts or physical evidence, you can reconstruct the crime and try to figure out if the killing was planned or intended, or you can interrogate the perpetrator, and even then it’s rarely easy. Things seem to be much more difficult still in cases of unconscious discrimination. Looking for intent is basically trying to look inside people’s minds, which isn’t obvious, and when people fool their own minds it’s becomes even harder.

If we accept that unconscious discrimination should be a crime in certain cases, and perhaps equivalent to conscious discrimination, then the problem is how to prove that it took place. In the case of conscious discrimination, you can often rely on the utterances of the person(s) who discriminate. That’s evidently impossible in the case of unconscious discrimination. Perhaps you can’t prove it in individual cases – if one black person’s CV is rejected, it’s probably impossible to say it’s because of implicit or unconscious racism. However, if a company rejects a large number of such CVs, and correcting for other factors such as education or skill level doesn’t remove bias in the distribution, then you may perhaps have evidence of discrimination (that’s a technique that’s useful in cases of conscious discrimination as well, by the way). So you would need to rely on statistical analysis, something that usually isn’t done in the determination of criminal liability. It’s not because x % of all killings are manslaughter that everyone charged with a killing has x % change of “getting away” with manslaughter. The decision to sentence someone for the crime of murder or manslaughter is always made on an individual basis and not a statistical one, although past conduct of the suspect can sometimes come into play.

An additional difficulty: if we accept that laws aren’t only meant to punish but also to prevent and deter, it seems that the latter goal is futile in the case of unconscious discrimination. People who are not aware that they engage in discriminatory activities will hardly be persuaded by laws telling them to stop doing so.

I’m personally not yet ready to take a firm position on these issues. For more information on this topic, take a look at this interesting paper.

Discrimination (5): Statistical Discrimination

Definition

Here’s the New Palgrave Dictionary of Economics definition of statistical discrimination:

Statistical discrimination is a theory of inequality between demographic groups based on stereotypes that do not arise from prejudice or racial and gender bias. When rational, information-seeking decision makers use aggregate group characteristics, such as group averages, to evaluate individual personal characteristics, individuals belonging to different groups may be treated differently even if they share identical observable characteristics in every other aspect. … group-level statistics, such as group averages, are used as a proxy for the individual variables. (source)

Statistical discrimination, also called rational prejudice (or rational racism), occurs when some stereotypes are considered to be statistically “accurate”. Accurate here in the sense of statistical generalization or average behavior (or characteristics).

Some examples

Young drivers are on average more likely to be involved in traffic accidents. Hence, auto insurers impose higher auto insurance premiums on young people. This insurance discrimination is called statistical discrimination because it’s based on some level of accuracy regarding the stereotype, and not on plain prejudice of or disgust for young people.

Regarding life insurance premiums, the customer’s likelihood of dying is one of the most relevant variables affecting the insurers profitability. Since gender is highly correlated with life expectancy, it is therefore optimal for the company to adopt a policy setting higher premiums for men, even for those men who may be healthier and less risk prone than the average woman. (source)

Employers often use the average performance of an applicant’s group to determine whether to hire him or her.

You don’t hire a guy with a Mohawk as a receptionist at a law firm – even if he promises to get a hair cut. Why not? Because on average, … guys with Mohawks have trouble with authority. (source)

Similarly, people with facial tattoos are unlikely to be hired as CEO’s, perhaps because they signal an anarchic, counter-cultural, contrarian, nonconformist, bohemian and “wandering” attitude.

Why?

The reason people engage in statistical discrimination is the high cost of making case-by-case judgments and the relative accuracy of group averages. Given that it’s not a product of bigotry, irrational prejudice, hatred and dislike, is it correct to call it discrimination? It is in the sense that people judge other people simply on the basis of group membership, not individual merit, as in “regular”, “irrational” discrimination or prejudice. Yet it’s not discrimination because people engaging in statistical discrimination often don’t do so because of their dislike or hatred of the discriminated group but because of economic self-interest and risk avoidance, as is shown by the examples above. The stereotypes are not baseless as most stereotypes are (“Blacks are lazy”, “Jews are money hungry”, “women are only productive at home” etc.).

This discrimination is “statistical” because contrary to normal prejudice it acknowledges that a relatively large number of members of a group do not conform to the stereotype. Just as it isn’t irrational to claim that it’s statistically accurate that republicans in general are pro-life while at the same time knowing that many aren’t. “Irrational” prejudice doesn’t have so much tolerance for exceptions. “People see others as average members of their groups until proven otherwise”. (source)

Is it acceptable?

So we know what it is and why people do it, but is it morally and legally acceptable? I think it depends on the type.

While such discrimination is legal in some cases (e.g., insurance markets), it is illegal and/or controversial in others (e.g., racial profiling). (source)

The difference between acceptable and unacceptable statistical discrimination hinges on several facts, I think:

1. How accurate are the group generalizations? You can forgive profit-seeking insurers for imposing higher auto insurance premiums on young people. However, wage gaps between genders resulting from theories about lower productivity of women (said to result from higher female investment in child rearing and a focus on “caring jobs” as opposed to jobs that tend to pay well) are less acceptable because the generalization is more dubious and the category of “women” too broad. Generalizations may be more accurate when they are not about behavior but about more “technical” and less controversial things such as life expectancy.

2. What is the “weight of history”? Statistical discrimination of blacks or women is by definition less acceptable than statistical discrimination of young people, given the history (maybe that’s a stereotype about discrimination…). Differentiated treatment, even if it isn’t really discrimination, can still cause harm given a certain history. The harm can be feelings of insecurity regarding a possible repetition of the past, feelings of continued attacks on self-esteem etc.

3. What are the consequences of statistical discrimination? Paying a slightly higher insurance premium is a lesser harm than being pulled over by the police a few times a week because of your skin color, even if your skin color is a statistically “accurate” prediction of the probability that you engage in crime in your neighborhood.

4. To what extent is statistical discrimination self-fulfilling? To some extent it clearly is.

People think teen-age males are criminally inclined (and they are), this angers the teen-age males, leading them to commit more crimes. (source).

If everyone assumes that boys are not good at domestic work, the benefit of learning domestic work is zero because no one will hire you as a domestic worker. In some areas, this self-fulfilling process is obviously harmful, and hence statistical discrimination is harmful as well.

It is possible that, because employers are less likely to hire women in jobs that require labour market attachment, then women are more likely to be involved in child-rearing than men, and are less prone to acquire the skills that are necessary to seek and perform well in those jobs, confirming the asymmetric belief that employers hold regarding labour market attachment. (source)

This phenomenon is called the stereotype threat. On the other hand, there can be self-reversing prophesies at work as well. A-typical members of a group, who of course suffer from the prejudice in the same way as typical members, may incite the latter to change their behavior. E.g. responsible young drivers who pay too much insurance because of the typical behavior of their fellow group members, may pressure the latter to change their ways. In this way, statistical discrimination may work to undermine itself. The same result will occur because a non-typical member of a group may get relatively more exposure. A woman who’s relatively good at soccer – compared to other women – but just as good as an average male soccer player, may get more attention than the latter. This excess of attention may undermine the stereotype on female soccer players.

Discrimination (4): Private Discrimination, Freedom of Association and Property Rights

To what extent should anti-discrimination laws apply to private associations, to voluntary employment contracts and in private property? Let’s have a look at a number of recent news stories:

  • There was the controversy over Rand Paul’s opposition (shared by many other libertarians) to the application of the Civil Rights Act to private enterprises, which implies that a restaurant owner for example should be able to segregate his restaurant or even refuse black customers for example. (This view is based on the libertarian opposition to government regulation of the private sector).
  • Then there was the case of the Christian student’s union refusing gay members.
  • A teacher in a Christian school got herself fired because of premarital sex.
  • There’s the famous case of the Boy Scouts’ refusal to allow gay members (Boy Scouts of America v. Dale).
  • The D.C. police department recently decided to no longer intervene in an ongoing protest by Muslim women over their place in area mosques. These women have provoked confrontations in mosques by claiming the right to worship next to men, a right refused by conservative Muslim men. The police initially escorted the women out of the mosques, as requested by the men, but won’t do that anymore. The men claim that the mosques are private institutions, and private property rights should prevail. The women, they say, are trespassers.
  • And some time ago the British BNP, a racist political party, was forced to accept black members.

A similar but different case – because not based on prejudice or discrimination (except if you count PC as discriminating between views) – was the firing/quitting of journalist Helen Thomas following a politically incorrect and possibly antisemitic comment on Israel.

We can, of course, imagine an infinite number of similar cases:

  • Can a gym be held liable for dismissing a fat fitness trainer?
  • Should a business be able to offer a gays-only retirement home?
  • Can a landlord invoke religious objections to renting to an unmarried or gay couple?
  • Etc.

What all such real and imaginary cases have in common (even the Thomas case, which I’ll exclude from the current discussion because it’s slightly different and doesn’t – necessarily – involve discrimination) is that different values clash. Equality, equal treatment and the absence of discrimination on the one hand clashes with the freedom of association, the right to property and the freedom of contract on the other hand. (In the Thomas case, free speech clashes with freedom of employment contract).

If you’re a value pluralist – as I am – then these are hard cases. Property rights, freedom of association, freedom of contract (including in employment), equality and non-discrimination are all important values. It’s a right to hire or fire employees, accept or reject members of associations and serve or fail to serve customers on whatever basis you wish, even if this means discriminating certain employees, members or customers. But it’s also a right not to suffer discrimination. None of these values is by definition or a priori more important than the others. (If you think only freedom and property count, then you can wrap this up in a minute. Likewise if you think equality does count but is the automatic result of freedom. Don’t laugh, some actually think like that. Remember trickle down and the invisible hand).

All those rights are important, and when they clash, as in our examples, we’ll have to make a hard choice: which right in which case will receive priority? That will be, by definition, a case by case trade-off. You can’t use a general rule, since all these rights are – in the abstract – equally important. You can’t use a rule that says, for example, “property rights are equally important as equal treatment, except for bigots”. It’s not because you’re a bigot that you lose your property rights, your freedom of association or your freedom of contract. Those rights are human rights and intrinsically valuable.

So let’s assume that we will find many cases in which equal treatment is more important than property, contract or association rights. Pre-Civil-Rights-Act-America would be such a case. We will then engage in some justified anti-discrimination efforts that limit these other rights. And we will acknowledge that there is a limitation of rights going on. That there is a trade-off between rights and that the limitations of certain rights don’t mean that those rights are no longer important. It’s a necessary evil and an unfortunate consequence of clashing rights.

We’ll also find numerous cases in which property, contract or association rights will outweigh discrimination concerns. The example of the fitness teacher given above (who doesn’t have a right to employment in the business of his choice), or the gay retirement home (non-gay pensioners have ample opportunities elsewhere) would be cases like this. The same goes for the case of the guy protesting ladies’ night. Not all consequences of discrimination are equally harmful.

Consequently, anti-discrimination efforts can’t be an absolute concern and can’t become the only preoccupation. Otherwise, other rights would suffer needlessly. A balance has to be found. We have to decide how far our anti-discrimination measures can go without weighing too heavily on other rights, and how far bigots can be allowed to use their rights without harming the targets of their bigotry. (Or how far non-bigots can discriminate for non-bigoted reasons).

And when attempting to make this balance, we have to look at the specific circumstances and the relative harm that we can do on both sides. Small scale bigotry against a single individual who has numerous outside options – another employer, another restaurant, another organization etc. – won’t initiate anti-discrimination action, certainly not by the government. Jim Crow, on the other hand, inflicted enormous harm on large groups of people during many decades. And it would not have been abolished by a few activists, boycotts or sit-ins. Nor, for that matter, by the government ending its own discrimination. Active government action against private – and public – discrimination was required. And did happen in the Civil Rights Act of 1964 and later decisions which banned private actors from withholding services or denying employment on the basis of race (or of religion, sex, or national origin). Those anti-discrimination efforts did harm property and other rights but it’s clear that a failure to intervene would have meant perpetuating the greater harm of Jim Crow. I’ll come back to the topic of government vs private intervention against discrimination in a moment.

A parenthesis: some cases fall outside the current discussion. Government mandated discrimination in public places – trains, buses, public schools etc. – is completely and utterly unacceptable in all cases since the government can never be allowed to discriminate. Government discrimination also doesn’t cause a conflict of rights. The topic here is strictly private discrimination.

Take a look at this quote:

Wasn’t racial discrimination basically a private affair? Did we really have to enact federal laws and regulations to end it? Many of these laws dictate how people run their businesses and associations, and these restrictions are problematic to say the least. Even if we do find discrimination wrong, isn’t it a private wrong? (source)

In fairness to the author, he doesn’t seem to answer completely in the affirmative. And yet, why would you even ask those questions? Well, you should if you’re a libertarian and if liberty – including the liberty to do with your private property as you like and to freely engage in contracts and associations as you please without limitations – is the supreme value in life. However, if we accept the logic of this quote, then domestic violence and a whole bunch of other crimes are “private affairs” that shouldn’t be governed by “problematic” laws. And yet they are governed by laws, and hence we have laws “dictating how people run their associations”, and that’s a “problematic restriction”. We may think domestic violence or marital rape is wrong, but it’s a “private wrong” and hence none of our business. Domestic violence or marital rape take place within “private property” and can be seen, with a stretch of the imagination, as part of the freedom of contract (if a wife doesn’t want to be beaten or raped she should cancel the marriage contract, just like a pre-1964 African American who didn’t want to be discriminated by a restaurant owner should have gone elsewhere).

Of course, no one in his right mind would view domestic violence or marital rape like this, and no libertarian does. But the fact that libertarians – as well as many conservatives for that matter – never spill a drop of ink defending these crimes and yet fill libraries with defenses of private discrimination (and have even run a presidential campaign on the basis of this defense) just goes to show that equality and non-discrimination aren’t very important concerns for them, or at least not as important as violence and rape.

Do we really need government intervention to harmonize the two legitimate concerns? The concern for private freedom to discriminate within your property or associations, and the fight against discrimination? Some say that the fight against discrimination shouldn’t necessarily entail government coercion against private discrimination and should focus on private activism. That’s possible of course. Boycotts may help, just as minority organization, lobbying, education etc. (Another proof that free association is an important right. Minorities often depend on freedom of association and on strong property rights for their activism, and free commerce and freedom of contract tend to lower prejudice). There are also market mechanisms that counteract discrimination and fostering those mechanism might reduce discrimination without government coercion.

But that effort is certainly naive in many settings, especially when discrimination is widespread and group conformity counteracts market incentives (for example when customers are willing to pay a premium to visit segregated businesses, in which case the business owners will not be pressured by the profit motive to accept all customers; or when businesses are threatened into respect for segregation). Likewise when discrimination is government mandated. Hence the need, in many cases, for government coercion to break widespread patterns of discrimination that seriously reduce the options and opportunities of those who are discriminated against.

Why specifically state intervention? Racist business restaurant owners or bigoted employers or organizations can perhaps, sometimes, be persuaded to accept non-whites customers, employees or members through boycotts, social ostracism or the pressures of the market, but state intervention is often necessary in order to force them to do so. And they should be forced when the targets of their discrimination are seriously harmed by this discrimination, don’t have options elsewhere and can’t wait for the slow process of the market and of mentality changes. For example, a black person failing to get hired because of his or her race, after many attempts, suffers more harm than a black person failing to get served in a restaurant but having many more restaurant options close by.

It can be, in some settings, immoral to say that government shouldn’t intervene and that only social activists should struggle against racism and discrimination. In many cases, such as the southern parts of the US under Jim Crow, a struggle that isn’t backed by government often means risking life and limb. Discrimination in the US was underpinned by private terrorism (KKK) and actively supported or condoned by government law enforcement officers. Insisting that discrimination should be combated solely by private actors means exposing them to serious risks.

A final consideration: what if property is the direct result of discrimination? Can the descendants of slave owners really claim that their property rights should be a justification of their discriminatory actions? Or is their property illegitimate given the fact that it wouldn’t have existed without slavery? That would be an additional reason to favor equal treatment over property rights, when these two values clash.

Discrimination (3): Libertarianism and Private Discrimination

Prominent libertarian politician Rand Paul recently caused a stir by claiming that he didn’t support parts of the Civil Rights Act of 1964, specifically the parts applying non-discrimination legislation to private businesses. Like most libertarians, he believes that if private restaurant owners, for example, want to prevent blacks from eating there, then that’s their right. Similarly, banks should be allowed not to lend to blacks, real-estate agents not to sell to blacks, private homeowner groups should be able to band together and keep out blacks etc. Same when the targets are Jews, gays, immigrants and so on.

The standard libertarian position is that only government enforced or government protected discrimination is wrong. Private actors should be allowed to discriminate. A private restaurant owner for instance should be allowed to refuse to serve blacks. However, government rules forcing restaurant owners not to serve blacks are not allowed, even though for the blacks in question the results are much the same.

It’s not that most libertarians think this kind of discrimination is acceptable and would engage in it themselves. They reject legislation against private discrimination because they consider the right to private property and the sovereignty of property owners much more important than the fight against private discrimination. They also argue that market mechanisms, which they also like a whole lot, will – over time – weed out such discrimination. A restaurant owner who refuses to serve blacks will do a lot worse than his competitors who are more open minded. He will lose benefits of scale, will have to raise his prices and ultimately also lose the bigoted white customers who detest eating in the presence of blacks but detest even more paying unreasonable prices.

Here’s a good statement of the libertarian position by a self-confessed libertarian:

(1) Private discrimination should, in general, be legal (this includes affirmative action preferences, btw). Many libertarians would make exceptions for cases of monopoly power, and most would ban private discrimination when the government itself ensured the monopoly by law, as with common carriers like trains; (2) The government may not discriminate. If necessary, the federal government should step in to prevent state and local governments from discriminating; (3) The government may not force private parties to discriminate, and the federal government should, if necessary, step in to prevent state and local governments from forcing private parties to discriminate; (4) The government must protect members of minority groups and those who seek to associate with them from private violence. If the state and local government won’t do so, the federal government should step in. (source)

Note the mention of violence in this quote: private violence against blacks isn’t allowed, private discrimination is. Why the difference? Again, property rights. Laws against violence don’t usually violate anyone’s property rights.

Now, what’s the problem with this libertarian position? Property rights are obviously very important. You don’t need to be a libertarian to believe that. I argued strongly in favor of property rights here. Likewise, the free market does an enormous amount of good. The problem with the libertarian view is absolutism and a rejection of value pluralism. There are many values in life, and many different strategies to realize them. And sometimes, some values or strategies come into conflict with each other. When that happens – as is the case here – you have to be willing to balance them and see which one should take precedence. Privacy and free speech, for example, are both important, but what do you do when a journalist exposes the private life of a public figure? You balance the right and wrong: which value is better served by publishing? Free speech or privacy? In some cases, we may believe that free speech is more important than the right to privacy (for example when the politician’s private life has relevance for his functioning). In other cases privacy will trump speech (for example when the facts published have no political meaning). Such decisions can only be taken case by case because the specifics always differ. Doctrinaire and absolutists positions in favor of one value or the other won’t do. And unfortunately many libertarians, and certainly Rand in this case, seem to think that their preferred values – property, freedom and the market – should always have priority over all other values.

Is legislation such as the Civil Rights Act an infringement of property rights and the freedom to do with your property as you want? Of course it is. Are such infringements always wrong? Of course they aren’t. Sometimes they are a necessary evil to gain a greater good.

There a resemblance between the libertarian views on private discrimination and the more widely accepted view in the U.S. that free speech rights and the First Amendment can only be invoked against the government, as if private actors can’t violate people’s right to free speech. The dominant U.S. free speech doctrine reflects an antiquated view of human rights as exclusively vertical. Of course, the government probably does most of the violations, particularly of a right such as free speech, but probably not in the case of the right not to be discriminated against. That’s more of a private monopoly, and markets, protest marches, boycotts, activism etc. won’t solve that problem by themselves. Just look at the market: it didn’t solve segregation, and neither would it have had it been more free. In fact, it’s likely that bigoted white customers who detest eating in the presence of blacks, will not find themselves in white only and hence more expensive restaurants, but will band together and boycott non-segregated restaurants which then lose far more business among whites than they gain from allowing blacks. Such boycotts are absolutely in line with property rights and the free market, which shows that the market can make discrimination worse instead of destroying it. (For a more sympathetic view of the power of the market, go here).

Strangely, Rand Paul himself invoked the parallel between private discrimination and free speech, but twists it to serve his goals:

INTERVIEWER: But under your philosophy, it would be okay for Dr. King not to be served at the counter at Woolworths?

PAUL: I would not go to that Woolworths, and I would stand up in my community and say that it is abhorrent, um, but, the hard part—and this is the hard part about believing in freedom—is, if you believe in the First Amendment, for example—you have too, for example, most good defenders of the First Amendment will believe in abhorrent groups standing up and saying awful things… It’s the same way with other behaviors. In a free society, we will tolerate boorish people, who have abhorrent behavior. (source)

So we have to tolerate discrimination that actually harms real people, just like we tolerate awful speech that most likely doesn’t hurt a fly? Words don’t equal behavior, although sometimes there may be a thin line between them (which is why hate speech laws can sometimes be justified).

Discrimination (2): Racial and Gender Discrimination in Adoption

Both straight and gay adoptive parents [in the U.S.] are likely to exhibit racial and sex-based biases when applying to adopt a child, a new study finds. … The authors found that girls are consistently preferred to boys. For non-African-American babies, for example, the probability that a prospective adoptive parent expresses interest in such a baby is 11.5 percent if the baby is a girl and 7.9 percent if the baby is a boy.

Interestingly, in many cultures the preference for biological children runs in the opposite direction, with parents strongly preferring boys instead of girls. The authors suggest that this preference for girls in cases of adoptive children may be because adoptive parents “fear dysfunctional social behavior in adopted children and perceive girls as ‘less risky’ than boys in that respect.”

Additionally, Caucasians and Hispanics are consistently preferred to African-Americans. The probability that a non-African-American baby will attract the interest of an adoptive parent is at least seven times as high as the corresponding probability for an African-American baby. The desire for white babies can be partly, but not fully, explained by the fact that most of the adoptive parents in this data set were white; previous research has found that adoptive parents often want children who look similar to themselves. …

In some ways, gay adoptive parents were more “selective”. Somewhat ironically (at least considering the continued social prejudice against their own family structures), same-sex couples and single women appeared to exhibit even stronger prejudice in favor of girls and against African-American babies than their opposite-sex couple counterparts. (source)

This paper finds that the cost of adopting a black baby needs to be $38,000 lower than the cost of a white baby, in order to make parents indifferent to race. Boys will need to cost $16,000 less than girls (source). The latter point seems to contradict the son preference for live births in many countries (leading even to gendercide).

Discrimination (1)

Discrimination, in its non-political and non-legal sense, simply means the recognition of differences. In the political and legal sense, it means unjustifiable differences in treatment between groups of people, most often the unjustifiable denial of the equal enjoyment of human rights.

Groups of people are discriminated because they have certain group-specific attributes that set them apart from the rest of society and that warrant, in the eyes of the people who are discriminating, less favorable treatment. One can make the following distinctions:

  • Discrimination can come in different degrees, affecting large or small numbers of people to a large or small extent: from government policy to an unspoken mentality of a small part of the population, and everything in between (such as states not acting to counter discrimination, very active and outspoken discrimination in some parts of the community, entrenched cultural practices such as the caste system etc.).
  • It can be exercised in different ways. People may be discriminated on the grounds of their race, gender etc. They can be discriminated in relatively harmless ways (denial of a promotion because of a likely pregnancy for example) or very brutal ways (slavery, denying of equal education etc.). They can also be discriminated in many different fields of life: education, employment, justice, health care etc.

Some people have the misfortune of finding themselves in a state which has an overt and active policy of discrimination, and in different discriminated groups at the same time (black lesbians in Apartheid South-Africa for example). As a result, they may also be discriminated in different fields of life at the same time (employment, family law, education etc.).

There are many types of discrimination, and the concept of discrimination is often linked to others such as racism, agism, sexism, xenophobia, intolerance, religious fundamentalism, genocide, ethnic cleansing etc. Whereas all these phenomena undoubtedly have a dose of discrimination, they are not the necessary result of discrimination. Discrimination can be much more limited.

One can distinguish between types of discrimination according to the groups that are discriminated, and the ways in which these groups are discriminated.

Groups:

  • racial discrimination
  • gender discrimination
  • discrimination based on one’s sexual orientation
  • discrimination based on one’s language, culture or national origin
  • discrimination based on one’s religion or one’s status within a religion
  • discrimination based on one’s political convictions
  • age discrimination
  • health discrimination (e.g. discrimination of HIV patients, disabled persons or obese persons)
  • etc. (when it comes to cruelty, man’s imagination has no limits I’m afraid)

Ways:

  • economic discrimination (e.g. persistent differences in poverty levels between groups)
  • employment discrimination (e.g. discrimination in career opportunities, pay, “Berufsverbot” etc.)
  • housing discrimination
  • family law discrimination (e.g. the inability of homosexuals to marry or to adopt)
  • education discrimination, different levels or quality of education for different groups
  • discrimination of the access to public service or elected positions
  • judicial discrimination, discrimination in the justice system
  • health discrimination, different levels or quality of healthcare for different groups
  • cultural practices such as honor killings, female genital mutilation,…
  • legal discrimination such as Jim Crow or segregation
  • etc.

Causes of discrimination:

  • racism, sexism etc.
  • a history of discrimination, creating a burden on future generations
  • immigration
  • xenophobia
  • recession or economic scarcity
  • education
  • cultural practices (e.g. the caste system)
  • religious doctrine
  • legislation (e.g. the Jim Crow laws or other types of legally enforced discrimination)
  • etc.

Article 2 of the Universal Declaration prohibits discrimination:

“Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.”

Although poverty has many causes, discrimination is undoubtedly one of them. Large differences in wealth between groups (for example racial groups) may indicate the existence of discrimination.

Statistics on the differences between races in incarceration or execution rates may indicate the existence of discrimination in the justice system, although these differences may have other causes besides discrimination, e.g. differences in poverty rates (see above), differences in levels of education etc. Of course, the latter differences may be caused by discrimination so that discrimination is indirectly the cause of the differences in the application of justice. Here again are some data on the situation in the US, showing that blacks, although they make up only 12% of the population, account for more than 1 in 3 of the prison population and of the executions. 5% of black men are in jail, compared to less than 1% of white men.

 

 

Blacks are also about twice as likely as whites to be a victim of a crime.

Gay Marriage From a Human Rights Law POV

Do homosexuals have a right to marry according to the international human rights standards? Not explicitly. They do not even have the explicit right to be homosexual, but jurisprudence has established that homosexuals should not be discriminated. First of all, all human beings, whatever their convictions, practices, behavior etc., have the same rights. So killing or torturing or arbitrarily imprisoning people is always wrong. And if this is done because these people are homosexuals or something else is irrelevant.

Homosexuality is also protected by the right to privacy. Article 12 of the Universal Declaration of Human Rights:

No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence… Everyone has the right to the protection of the law against such interference or attacks.

And nothing is as private as sexuality.

Regarding the right to marry, article 16 states:

Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family. They are entitled to equal rights as to marriage, during marriage and at its dissolution. Marriage shall be entered into only with the free and full consent of the intending spouses. The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.

Sexual orientation is not mentioned as an unwarranted limitation. So the use of this article is a weak defense of gay marriage. But Article 2 states:

Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

The “such as” clause signifies that there may be other types of unwarranted distinction. See also Article 7:

All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination.

And from a non-legal POV: gay marriage is not necessarily a threat to the institution of marriage. A gay couple can be as serious about marriage and about raising children as a heterosexual couple. Those of us who care about the importance of marriage have much graver threats to deal with.