Against moralism in anti-discrimination law

Abstract

This article argues against a moralist interpretation of the purpose of statutory anti-­discrimination law. On this interpretation, there are instrumental reasons to legally prohibit discriminatory acts to achieve a collective goal that the state ought to pursue as a matter of political morality. But the fact that a discriminatory act is morally wrong according to interpersonal morality additionally gives a separate non-instrumental or moralist reason to legally prohibit it. According to moralism, the best interpretation of anti-­discrimination law’s purpose ascribes both moralist and instrumental justifying reasons for the law’s main features. Most writing in the philosophical literature on anti-­discrimination law proceeds under a dominant, yet inarticulate, assumption that moralism is true. Indeed, I explain that we might be persuaded to invoke moralist reasons to confer intelligibility on why the law prohibits directly discriminatory acts, why certain traits are included in the prohibited grounds of discrimination, why legal regulation is limited to certain spheres of private life such as employment and housing, and why the law is enforced through a mechanism of private recourse. I argue, however, that the attractions of moralism are illusory. We ought to invoke only instrumental reasons to explain these features of the law. A thoroughgoing instrumentalist account of anti-discrimination law as a tool for achieving an egalitarian political goal offers a unifying account of legal prohibitions of direct and indirect discrimination that coheres with a justification for the law’s protection of certain prohibited grounds and its application to the typical regulated spheres. I show how this conclusion has the important implication that, to the extent that anti-discrimination law’s private recourse enforcement method is inconsistent with the law’s overall instrumental purpose of reducing inequality, it ought to be reformed to place the onus of enforcement more squarely on administrative officials. In the final analysis, anti-discrimination law’s point is not to embody the morality of anti-discrimination as between private persons. It is to function as a means for realizing public justice.