From “appropriate” means to desired aims

Abstract

Legal rules prohibiting discrimination often make this mandate subject to the condition that the difference of treatment in question is not considered justified. Typically, a difference of treatment must be considered justified if, among other factors, it pursues a legitimate aim and is an “appropriate” means to achieve it. But what does “appropriate” mean in such a context? My answer in this article develops over three steps. The first step is to elucidate the vague requirement of “appropriateness” as a given causal contribution. The second step is to reconstruct the content assigned to the notion of causal contribution by two conceptions of causality: the regularistic and the probabilistic. The third step is to argue for an understanding of the requirement of “appropriateness” as a probabilistic causal contribution. After establishing these grounds, I turn to the regulatory opportunities that the choice in the third step opens regarding the strategy, common in anti-discrimination law, of requiring a more robust justification for certain kinds of cases. As I will show, the gradual character of the notion of probabilistic causal contribution allows for the formulation of different levels of “appropriateness” that are sufficient for justificatory purposes. In relation to the non-basic levels, a dilemma may arise.