Between Intentional Discrimination and Discriminatory Side Effects

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The courts in the United States have distinguished between acts of intentional discrimination and acts that involve only unintended discriminatory impact or side effects. Such disparate impact cases are outside the protection of the Fourteenth Amendment’s equal protection clause. The focus of this paper will be on cases that lie in between intentional and side effect discrimination, i.e., cases in which we would be hard pressed to define the discrimination as intentional, but that nonetheless consist of something more than benign acts with unintentional adverse side effects on minority groups. One such intermediate category that I wish to explore in this paper is the category of discrimination out of indifference towards the discriminatory effect. How should we view cases in which the governmental actor, while not motivated by the wish to discriminate, is completely indifferent to the possibility of discrimination? In the article, I explore the moral standing of indifference and argue that we might have reason to believe that it is on par with the moral standing of intent. I move on to apply this insight to constitutional law and give examples of indifference in anti-discrimination law and whether it, too, can be considered on par with intention.