Structural inequality and the protectorate of discrimination law

Abstract

This article asks whether discrimination law should be symmetrical: whether it should offer the same level of protection to dominant and dominated groups. It articulates a structural inequality theory of the moral foundations of discrimination law and defends it against prominent alternatives, such as the view that discrimination is wrong because it is irrational or disrespectful. The paper then argues that while direct discrimination is symmetrical, indirect discrimination is asymmetrical. It cannot be claimed by those – men, or white persons – who are not at the sharp end of structural inequality. Furthermore, even dominated groups cannot claim to be indirectly discriminated against by just any law that has a disparate impact on them. If the structural inequality view is correct, the protectorate of discrimination law is not as extensive as is commonly assumed.