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A show presenting the best new scholarship in political and social philosophy, featuring lively conversations with leading thinkers. Join hosts Jeffrey Howard and Emily McTernan as they explore some of the thorniest ethical questions of our time.
Episode 3
Discrimination and Privilege
With Cecile Laborde
Hello, I'm Emily McTernan.
I'm Jeff Howard.
And you're listening to Philosophically Speaking, where leading philosophers talk us through some of the trickiest moral and political issues of our time.
And this week, we'll be asking, can white men like me be discriminated against?
To help us figure that out, we're delighted to be joined by Professor Cécile Laborde, here to discuss her recent article, Structural Inequality and the Protectorate of Discrimination, published in Politics, Philosophy and Economics. Cécile is going to talk to us about the moral foundations of discrimination law and what that means for who should get protected by it.
All right. Let's go get Cécile.
Let's do it.
Welcome, Cécile, to the podcast.
Hi, thanks for having me.
Let's dive right in. What's discrimination?
Okay, so when we think of discrimination, we mean disadvantageous differential treatments that affect people defined by their protected characteristic. That's the legal definition. So perhaps I should say something about the motivation behind the paper. So much of the literature on the moral foundations of discrimination law focuses on what's wrong with discrimination. But very few authors are focused on what's right about the protected characteristics. Why do we protect things like race and gender, but not, say, eye color? One of the motivations behind the paper is to make a connection between what's wrong with discrimination and who do we protect. And the second motivation, I'm sure you get to that, is once we've identified who we should protect, what do we protect people on grounds of race and gender and so forth? Should people like Jeff get as much protection as people like Emily? Should men and women get the same level of protection? Should white people and black people get the same level of protection? So these are the two questions I struggled with.
So there's a popular set of theories about why discrimination is wrong. And for these theories, it seems key that discrimination involves treating someone differently on the basis of a morally arbitrary characteristic. And you might think that's objectionable because it's irrational. You might think it's objectionable because it's disrespectful in some way. But you take a different line. So before we get to your view, could you tell us a bit about these more popular views and why you don't think they're adequate?
So most moral philosophers who have tackled the issue, I think they've concentrated on asking what's wrong with discrimination in a broader sense than what the law covers, i.e. they're focused on covering things like idiosyncratic discrimination, that is, eye color, which is the characteristic I started mentioning earlier. And my worry about these theories is they can't really explain the moral salience or the moral relevance of existing protected characteristics in the law. So there are two kinds of theories that seem to imply that idiosyncratic discrimination might be wrongful. First, a family of views suggest that discrimination is wrongful because it's irrational. And the other family of views suggest that it's wrongful because it's disrespectful. So let me take both in turn. So on the rationality view, discrimination is wrongful if the trait discriminated against is irrelevant to the task at hand. So for example, one's skin color, completely irrelevant to the performance of all the tasks. The problem with the view is that it can't explain two things. First of all, it can't explain why discriminating on the grounds of skin color is more wrongful than discriminating on the grounds of eye color. It seems to put the two on the same plane. And secondly, it seems as the sometimes it can be very rational to discriminate. So if I have a small business and my customers are racist or Islamophobes, it might make sense for me to not to employ Muslim employees. It's a perfectly immoral but rational business decision. So there's a problem with our view that seems to confuse rationality and morality. And we intuitively think that it's always wrong not to employ someone because they're Muslim. Views based on disrespect, I think, are more plausible. They're quite influential in the literature. So here the view is discrimination is wrong because it fails to treat people as person. It reduces them to one characteristic, idiosyncratic characteristic that they have. And again, there are two problems here. The discussion gets a bit technical. But what I try to suggest is that you also can't explain why discrimination on grounds of race is worse than discrimination on grounds of eye color. But also, you can't explain why what I call P-based discrimination, that is discrimination on based on a group characteristic, is worse than whimsical discrimination. So if someone is not considered for a job because the employer just on that day threw their application in the bin, that seems to be very disrespectful, but we don't think that is discriminatory, right? So my conclusion here is that the disrespect-based views of discrimination fail to explain what's morally salient about P. And then further, what's morally salient about certain kinds of P, race, gender, but not eye color. So to sum up, the problem with these popular views, quite common views, is that they can't distinguish between arbitrary unfairness and structural injustice. And I take it that the point of the moral motivation behind discrimination law is to account for something more structural than simply idiosyncratic unfairness.
I wanted us to chase down a little bit this disrespect view and whether it can do a little bit better with skin color and eye color in particular. So it seemed to me that it might not get you a difference in kind, but it might get you a difference in severity that did just about manage with our intuitions. So what I was thinking here is something like, it just looks vastly more disrespectful given the ways in which people of color have been treated to discriminate on the grounds of skin color. Whereas eye color, that is still disrespecting the person because you're treating them in a way that's not taking them as a whole being seriously. But it's nowhere near as disrespectful as doing it on the ground of skin color because of the background. And so I wondered if a kind of disrespect for personhood comes in degrees here and if it did, whether those disrespect views can do a little bit better or do they still not do well enough?
I think they do quite a bit of work for us because they explain intuitively how disrespect can take different forms and can be more or less serious. But my interest, remember, is to tackle the moral foundations of discrimination law. So we have an existing body of law, and I take it one of the fixed points of this body of law on a broadly Dworkinian understanding of the law, you have to explain its best features, is that the law protects certain characteristics. And it seems to me that the disrespect view doesn't fully explain why these characteristics are protected more than others.
That the disrespect is very serious for these cases and less serious for these others?
I think that's right. So what the theory provides is an account of why this is more serious. And I think you can't explain why this kind of disrespect is more serious unless you understand this body of discrimination law as being a response to what we call structural injustice. So it seems to me that ultimately you need to have a more consequentialist account of what discrimination law is for, is for treating certain kinds of injustices as opposed to expressing certain attitudes towards people. So for me, disrespect is a side effect of these kinds of wrongful consequential behavior, but I don't think disrespect itself is the main wrong.
So let's turn to your view then of what you think the main wrong is. So you offer an alternative story of the aim of discrimination law, which is to reduce gaps between historically dominant and dominated groups. Tell us more about what your structural solution is here.
So if you go back to skin color versus eye color, I think only skin color discrimination perpetuates systems of hierarchy. It seems to compounds well-known histories of domination. So what I mean by structural inequality is inequalities that has its roots in the past, but still persists today, right? So we still have residue of historical injustice that are reproduced through institutions and norms. So they reproduce both through material outcomes that might be unequal, but also through norms that seem to reproduce bias and prejudice and stigma. So I take it that this is what this body of law aims to address. That's my interpretation of it. It aims to address pervasive structures of inequality.
So whimsical or idiosyncratic discrimination, like discriminating against a person because you dislike their green eyes, or whimsically, quote unquote, discriminating against someone by throwing their application in the bin simply because you're tired and you want to go home. Neither of those would count as a form of wrongful discrimination on your view because they don't connect up to any kind of deeper structural injustices. Do I have you right there?
That's right. They are unfair, but they are unfair on other grounds. So arbitrary dismissal, procedurally unfair treatment, the kinds of things. But I think it's wrong to see them as discriminatory. That's obviously not a mainstream view, but I take it furloughs from, if we take the structural inequality view seriously, that's what would furlough, yeah.
One way of thinking about discrimination law is protecting individuals from these bad things that happen to them. And I wonder a little bit whether the structural account begins to move us away from the individual and protecting the individual against these kind of more grotesque acts of discriminatory practice like hiring Jeff and not me or something of that kind, and towards a kind of much more diffuse picture of the general structure. How could we make it better? How can we shift norms? And I wonder whether you'd get the same kinds of laws in both pictures. So I can see how we have lots of discrimination around hiring on my picture, right? Where it's the wrong done to the person. And that's what we're trying to protect people against on the basis of protected characteristics. And your account where it might be that discrimination law should shift a whole different set of things that would better shift norms and practices than just happening to hire me not Jeff this time around.
Yeah, I mean, what my approach does, I think, is to give what I think is a convincing story about the group. Yeah, discrimination as a group wrong. We will need an additional theory, which was going to be the aim of another paper on what can we deduce regarding personal wrongs. And they would differ in different cases. They would differ in case of direct and indirect discrimination, for example, which I guess we'll come back to. So I agree with you. We need a more complex story to account for these intuitions we have about the type of personal wrong that comes with being discriminated against.
But discrimination laws not really about that personal wrong. You're saying it really is about the structural inequality that's lurking in the background.
Yeah.
So Cécile, I wanted to ask you to just state, so the audience has it clearly in view, what are the two central clauses of your theory?
So the main clause of the theory, I have a main clause and a secondary clause, and we will do kind of work they do when we discuss both direct and indirect discrimination in a minute. So the main clause says that discrimination is wrong when it contributes causally to structural inequality. But remember earlier, I suggested that structural inequality was both about material outcomes but also about norms and prejudices and stigma, hence the importance of the secondary clause, which says that discrimination is wrong additionally when it expresses biased attitudes that legitimize structural inequality. So both clauses really are about structural inequality but the second one allows us to capture the importance of certain expressive dimensions of rules and laws, which is that they sometimes express bias and stereotypes. And I think it is right to think that discrimination law should address those. And that's what the secondary clause does.
And either is sufficient for something to qualify as wrongful discrimination? You don't need both?
That's right. They're both sufficient.
Great. That's really helpful.
Let's get to direct discrimination and white men. So you distinguish clearly between direct and indirect discrimination. Let's start with direct discrimination. So is your view that this is symmetrical? Let's pin it down. So that means that not hiring Jeff here for a job because he's a man is discriminatory, just like not hiring me because I'm a woman. You can go either way.
So you said I clarified direct and indirect discrimination, but I haven't yet. So let me just give you that would be for the audience benefit. So when we talk about direct discrimination, we talk about explicit differential treatment of P persons on grounds of P, right? So the rule itself singles out the person. It says no women here or no blacks here. Indirect discrimination, you don't get any singling out. Talking about neutral rules or rules are neutral on their face, facially neutral, that however have the effect of disadvantaging or affecting certain groups.
Can you think of examples of that?
Yes.
So you can think of norms that structure the workplace, for example, general norms, for example, of having meetings between five and seven in the afternoon, clearly have an indirectly discriminatory effect on those of us who historically have taken care of children, for example. So we know that these seemingly neutral rules have a disproportionate impact historically on women. So that's one example.
So let's go back to the to the symmetry here. So I guess one of the central things about discrimination law is whether it should and does cover equally, say, people of either gender or people of any race. So what's your view? Should it in the cases of direct discrimination? That is signs like no women here or we're going to hire men.
So think of a man or white applicant, so members of dominant groups historically. A member of that group is denied a job. On the face of it, given what I've said so far, you apply the main clause of the theory, it sounds as if just denying that job to that person is not going to contribute to structural inequality, right? So a man like Jeff not getting a job doesn't do anything for the overall balance of advantage and disadvantage in society. So because he's not structurally oppressed, there seem to be nothing wrong with it. However, that's where the secondary clause kind of kicks in. And here, we have to say a bit more about how structural inequality functions, right? So it functions through ideologies as well as practices. So the ideologies, we say, of domination, that structure expectations, both for the behavior of both dominated groups, but also for the behavior of dominant groups, right? So I'll take, let's take two examples. So the first one would be that, say, if Jeff is discriminated when he applies to be a nurse, because the employer thinks that that's really not a job for a man, right? This is problematic because this kind of norm reinforces patriarchy, the sexual norms that shape expectations about what particular kind of people should do and should not do. So I would say that if Jeff is discriminated against as an application to be a nurse, so the secondary clause kicks in, because this denial of opportunity to Jeff contributes indirectly to reinforce the idea that men and women have different functions in society and that in itself is what underpins patriarchy. Another example would be certain types of racial prejudice against whites. When they are prejudices, they end up reaffirming the racialized order. So one example I take is a Canadian case called Eva vs. Spruce Hill Resort, where the employer preferred to employ Chinese workers instead of white workers on the ground that the latter were more lazy than the Chinese. So clearly a racial stereotype about white people. But my point is that these kinds of stereotype end up reinforcing the racialized order.
I wanted to see how general this is going to get. So will it do enough to protect Jeff against not being hired?
I don't know why I'm the example here, but carry on.
So I was thinking of something like the following case. So we discriminate against men for a surgical position, not a nurse position this time. We say because we think female surgeons probably have better bedside manners and more considerate of patients' interests and wants. You might then undermine a patriarchal view that men just make better surgeons. So men have been historically, most surgeons have been men. I can't quite see the contribution causal stories going on here. Look like they might get undermined in weird ways for cases like me discriminating against hiring male surgeons or male academics, right? Insofar as there's a stereotype that men are better at this work, by discriminating against men and put more women in, aren't I overall doing better?
But you're substituting one stereotype for another. And it seems to me that any stereotypes about gender behaviour contributes to a gendered social order. So I would be very nervous about this.
But perhaps not to the patriarchy, right?
For sure, for sure.
I mean, with the racial order, I can see where we're going with that.
Yeah, yeah, yeah.
With the gender case, it's slightly less clear to me that that's our problem.
So my view about this is if we're going to fight the patriarchy, there's probably better ways than to openly discriminate by appealing to certain historically acquired behaviours associated with the gender system, right? So I'll be very nervous in directly applying this kind of reasoning to hiring policies. But I hear that's quite controversial. That can be quite controversial. However, one advantage of my approach is, for example, it tells you why certain forms of affirmative action are okay, right? So affirmative action is not motivated by differential assessment of the particular aptitudes of different groups, right? So it's quite different from the one you just spelt out. It simply gives a story about certain structural inequalities that have to be rectified. So the main clause is met on my theory. And the secondary clause is inert here, because by definition, there's no bias against any group. A new assumption is made that either black people, African-American in the US case, or other groups are better or worse at a particular job. It just uses the law to make structural transformation. So there might be other reasons why affirmative action policies might be problematic, but to me, it's not usually because they discriminate. And another advantage of the theory is that it tells us very clearly why rational discrimination can be wrong. So, rational discrimination also doesn't express any bias. Remember the employer who refuses to employ a Muslim, not because she's herself Islamophobic because she assumes her customers are. So, it's a business decision, it's not motivated by her own bias. She doesn't express any bias, she just makes a commercial decision. The theory explains what that's wrong for, because of the effect on maintaining patterns that are problematic.
I wanted to ask a couple of questions about the relationship between morality and law here. So, when we were discussing the case of whether discriminating against men might count as wrongful discrimination, your answer was, well, yes, it can be if it contributes to the unjust extant ideology, for example, a patriarchal ideology, as in the case of discriminating against male applicants to nursing jobs. But then there'll be other cases where discriminating against men doesn't seem to re-entrench the unjust ideology. And I'm wondering, that may all be persuasive at the level of morality, but when we're thinking about entrusting decision makers like courts with the authority to make these kinds of judgments, they seem pretty nuanced, pretty contextual. And I can see the case for what you might call an over-inclusive rule, where we just say, right, these suspect classifications are going to be ruled out as discriminatory at the level of law, even if the moral story underlying it is a bit more nuanced. And that might mean we have a blanket rule against discrimination on the places of sex or gender or sexual orientation or religion, even though the underlying morality is more nuanced. Do you think that's a plausible view that one could have at the legal level and if not, why not?
That's a very plausible view and it's a problem that philosophers writing about the moral foundations of discrimination law keep having to engage with. There's always been going to be some gaps between the moral foundations or the moral ideals that the law is trying to pursue. And how do we operationalize the law so that it can be actually handled by judges and at all levels, both the high judges but also down to the employers. And so I agree there are issues of admissibility and practicability in implementing the theory. But I still think it's a reasonable intellectual exercise to try to pin down exactly. And I think there's a real puzzle here. That, you know, I mean, why does, you know, if you think of discrimination law in the US., they came about really as a response to, in the 1960s, to the civil rights movement, right? And clearly the reason why whites were included in the scope of the protectorate is purely for pragmatic reasons. If you wanted the population as a whole to support this set of law, then you have to say so universal protection is not simply for African Americans, right? So, there are lots of political, administrative, constitutional reasons why the law is as it is. But the role of philosophers really is to get down to what we think are the more morally coherent foundations, even if in practice we're going to have to cut corners and make the law more effectively applicable, either on grounds of political prudence or on grounds of administrative convenience.
I wanted to raise one more way in which your account reveals the law to be quite quirky, perhaps, or at least deviate from the nuanced contours of morality. So go back to that really interesting Canadian case you mentioned, where they discriminate against the white workers in favor of the Chinese workers on the basis of objectionably stereotypical views about Chinese people that thereby reinforce this racialized hierarchy. I haven't looked into that case in detail, but I take it that in discrimination law generally, the party with the legal standing to sue is the discriminated against party, which in that case would be the white workers who don't get the job.
Correct.
But if you're right, they aren't the party who are morally wronged.
Correct.
The party morally wronged are the Chinese workers who do get the job. That's not an objection to your view, it's just an observation about the way in which, if your view is right, the law deviates.
That's a further reason why I need to do the other paper, which connects the story about personal wrongs, who can claim to be wronged, and what's the more general wrong that the law is supposed to address. So we need a more complex story that connects the two.
So we've talked a lot about direct discrimination. Why don't we spend some time thinking about indirect discrimination? What is it, Cécile, and who can be the victim of it?
So direct discrimination sometimes can be symmetrical, sometimes, not always, as we concede it, but it can sometimes be symmetrical because bias operates in both dimensions, right? So the key is bias, and that's where the secondary clause applies. When we turn to indirect discrimination, I think we get a different and in some way, a simpler story. So let's just remind ourselves what indirect discrimination is. You're talking about neutral rule, a rule that is only on its face, doesn't single out anyone, and yet incidentally, adversely affect some group. So the classic case here is one of the rare instances of recognition of so-called disparate impact in US law, and that's the famous or notorious Griggs vs. Duke Power case. So this is an educational test in a North Carolina firm, which had a disparate impact on African Americans on grounds of they were deprived of basic opportunities, educational opportunities, due to segregation in North Carolina in particular. So why is this a classic case of indirect discrimination, as we say in Europe, or disparate impact in the US.? It's because despite the fact that the rule doesn't express any bias against African Americans, it clearly perpetuates the structural inequality they've suffered. So I think indirect discrimination is asymmetrical, always, like structurally, because only dominated groups can suffer structural harms. The best that dominant groups can suffer is episodic harm, right? When locally, a neutral rule might impact them disproportionately, but we can say that this disadvantage is part of a broader pattern of cumulative disadvantage and harm. So that's why I conclude that, and I think in line with existing law, mostly, that indirect discrimination is structurally asymmetrical. That is, it can only be wrongful when it affects members of dominated groups.
So I'm wondering about how religion fits into this picture. You've done a huge amount of work in religion over the years. Are there important historical examples of indirect discrimination that focuses on religion that can help us think through this problem of indirect discrimination?
Okay, so perhaps I'm going to take two cases of religious discrimination, of what some people have qualified as indirect religious discrimination. And I'll try to explain why all my views, one of them counts as wrongful discrimination and the other doesn't. So just to explain the kind of shape of the theory, I try to defend something that I call the tracking view. The tracking view gives you an account of in what case does disparate impact on a dominated group, in which case is exactly easy to be unjust. And the answer I provide is it's when it connects with past injustices or exclusions. They don't have to be unjust, but past exclusion. So that's a broad picture. I think you need a connection, otherwise it's too broad, or that any disparate impact would count as unjust. So we need a story of what kind of impact are we concerned about. Because I think the harm we're trying to redress is structural inequality, I want some kind of connection with past exclusion and injustice to be present. So let's look at two cases. One of them is a famous case in the UK. This is Mr. Hamad, who was fired for trying to take some time off on a Friday for Muslim prayer. He wanted to go to the mosque for prayer. And the other case is Mrs. Mbah, who is also a UK case. And Mrs. Mbah was fired because she refused to work on a Sunday. She was working in a facility where it was the norm that everybody worked at a care facility for children. And so it opened 24-7, including on Sundays. So I want to leave aside the question of either or both of them having suffered an infringement of their religious freedom. I've argued elsewhere that they probably did. My question is different. Is either of them discriminated against indirectly? And I think only Hamad is. Because Hamad's claim is made against a broader framework where it is taken for granted that Christians can both work and go to their favorite place of worship, the church on Sunday. So Hamad was simply asking for the possibility of both working and praying on his preferred day, that set of possibilities to be equalized with members of the majority religion. Whereas Ma is hard to think that she's not asking for some kind of privileged treatment here, because everybody has to work every day. So it's not as if she's privileged in relation to Muslims or Jews. Everybody is put on the same level. As I said, she might have a claim of religious freedom, having been unfairly infringed, right? But I don't think she's been indirectly discriminated, right? Because I don't think there's any injustice. There's no past injustice that has been tracked. It's not the case that Christians have been victims of past injustice when we structured the weekday the way that we did, whereas clearly Muslims and Jews have a claim of indirect discrimination when they have to conform to a working week that makes it harder for them to be both good workers and good believers, so to say. That's how I conclude the paper. It's not everything that treats people differently, counts as discrimination. Many things are unfair, but they can be unfair on other grounds, either because your religious freedom is being infringed, and I think that's an important freedom, and it's an important right that deserves special protection. I won't get into that, but also you could be protected against unfair dismissal or arbitrary treatment, but not everything is discrimination. So it's a fairly narrow but I think robust theory of discrimination.
It sounds like it's a very local tracking requirement. So it's like around here, the weekday got structured such that Christians got a bit of an advantage because Sunday is the day off. But in a country that was majority Muslim, then that wouldn't be the story, which is the dominant group in your sense is extremely local in particular. Is that correct?
Absolutely. The only fairly universal group would be gender, because patriarchy is fairly universal. Racial hierarchy will manifest itself differently in different countries. So different groups will be at the end of racial injustice in different countries and likewise for religion, of course. I think that comes to the territory, because structural injustice will take different forms in different contexts.
It sounds like an advantage of your view, because it looks like it's not as tied to the past as perhaps one might have thought, because what really matters is what's structurally happening around here.
But why isn't that tied to the past?
So what I was thinking here is something like, it's going to let things shift quite quickly if they need to. So if the majority of the country shifts, no longer being majority Christian, for instance, then fairly quickly your view is going to say, well, now this is just not the case. Even if there's been a past where we were very discriminatory against this religious view, that's now a majority religious view around here, we're going to be able to quite quickly, I think, on your view, shift. Because the tracking looks to me like it's local both in place, but also in time frame, right? If things on the ground change, you can change quite fast. So it's not purely historical in the sense of, there's got to be a long pattern of injustice stretching back X number of years.
Good. So I agree with this. So you're right to think that things can shift. I don't think they shift fast. Because I think what the theory tries to grapple with is how sticky these patterns of inferiorization and hierarchy become. So it takes a long time for them to solidify into what we call an ideology of domination, right? So it will shift but slowly. But you're right, in some cases, it might mean that some protections we've had so far are not necessary for this group. And we're going to need to think other protections for other groups. But I don't think it will shift fast. I think it's a more conservative theory than you suggest, I think.
And I think that's a pretty good place to end. So what's a recommendation you have for something in your life that's made you happy lately? It can be a TV show you've been watching, it can be a dish you ate or a restaurant you went to, or perhaps a city you visited.
Okay. Can it be something else?
Of course.
What made me very happy recently is I thought I had a very bad injury and it turned out to be not that bad. I thought I had a muscle tear. It turned out the injury was much worse. It was a rupture.
Oh dear.
But I do recommend a rupture over a tear, because if your muscle snaps from your bone, it means it dissolves and then it's not painful anymore. So I do recommend muscle rupture instead of muscle tears.
Well, I didn't see that one coming.
No, that's different.
Wow. Very good. All right. Thank you so much, Professor Cécile Laborde.
My pleasure. Always great to speak to you too.
You've been listening to Philosophically Speaking, a production of the Digital Speech Lab at University College London. Our senior producer was George McDonough, studio recording by Matt Alcott, Teresa Baker, Ash Johnson, and Patrick Robinson. Music by the philosopher Adam Ettenson. Your hosts were Emily McTernan and me, Jeff Howard. See you next time.