Abstract
ABSTRACTThis article explores the necessary and jointly sufficient conditions for the recognition of a ground of unlawful discrimination. It is important not only to have a coherent understanding of the currently enumerated grounds, but also to have a theoretical framework that can assist in enumerating new grounds through the open-ended “other status” aspect of many legal frameworks. To that end, this article argues that personal characteristics that are generally morally irrelevant, and that are socially salient in that they carry with them a prevalence of inequality-laden attitudes, amount to necessary and jointly sufficient conditions for recognizing a ground of unlawful discrimination. Other conditions, such as immutability and the presence of relative group disadvantage, will be assessed and dismissed as contingent but not necessary conditions.
Highlights
Why is it that sex and race and religion are protected grounds for the purposes of antidiscrimination law, but height or hair color are not? Is it just as wrongful to discriminate against someone on the basis of their physical appearance as it is to do so on the basis of their philosophical beliefs? Even if it is, should the state approach each of these forms of discrimination ? These questions, or questions like them, must be answered before a coherent theoretical account of discrimination law can be advanced
Drawing the previous section together, we can define unlawful discrimination generally as follows: Unlawful discrimination occurs where a duty-bearer treats someone less favorably on the basis of a morally irrelevant personal characteristic that is socially salient in that there is a prevalence of inequality-laden attitudes relating to it
The social salience and moral irrelevance of these traits can and often does contribute to those traits becoming fundamental to someone’s identity such that they might be classed as fundamental choices worthy of being protected under a principle of nondiscrimination.[111]. This being the case, it is the social salience of the traits that is of primary importance; “fundamental” choices that are not socially salient such as the university association or support for a particular football team will not be protected whereas morally irrelevant socially salient personal characteristics may be protected even where they do not amount to fundamental choices.[112]
Summary
Discrimination is often presented in a moralized sense such that it carries with it a negative connotation of some kind, to be contrasted with a morally neutral conception.[13]. L. 712 (2016); see HELLMAN, supra note 14; Deborah Hellman, Equality and Unconstitutional Discrimination, in PHILOSOPHICAL FOUNDATIONS OF DISCRIMINATION LAW 51 (Deborah Hellman & Sophia Moreau eds., 2013). It is important to be aware of the possibility that the reasons to protect a ground may diverge from the reasons to prohibit discrimination based on that ground in certain contexts and not others It is not unlawful for a customer to refuse to shop at a black-owned business, even if it is wrongful. While this distinction is relevant, it is often the case that exceptions to the general prohibition on certain forms of discrimination are justified by reference to the reasons we protect certain grounds and not others. The best way to begin to explain this is to be clear that the reasons motivating the recognition of race as a ground may be different from the reasons to protect race in a particular context and not others
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