Let me try out a few possible answers to the question in the title of this post:
- Is discrimination wrong because it’s differential treatment of persons? That can’t be the case, because we treat people differently all of the time: some people earn more than others, have better grades in school, have a lot of friends or none at all, etc. None of those types of differential treatment seem to pose a moral problem per se.
- Is discrimination wrong because it’s differential treatment of persons based on the mere fact of their membership of a group? That can’t be true either. We don’t allow the blind to drive a car, we don’t allow the mentally ill to run for political office, and we don’t allow inmates to move freely across the country. Again, usually this is done without violating our moral intuitions. Differential treatment based on group membership may be wrong in some cases but it’s not discrimination per se.
- Is discrimination wrong because it’s disadvantageous treatment of some relative to others? Again, the answer is no. We certainly impose a disadvantage on inmates when we confine them to a prison building.
- Is discrimination wrong because it’s disadvantageous treatment that is morally objectionable? If I, as the sole racist member of a tolerant society, refuse to eat at a restaurant owned by an African American or serve African Americans in my own restaurant, I act in a morally objectionable way, and impose a small disadvantage on some people. And yet these people are not discriminated against in any meaningful sense of the word.
- Is discrimination wrong because it’s differential treatment of persons based on some of their immutable characteristics, for example their gender or skin color? Again, the answer has to be no. Sometimes it’s justified to treat persons differently based on their immutable characteristics or on characteristics that are beyond their control. We don’t allow one legged basketball players to compete in the NBA. And, conversely, sometimes it’s not justified to treat persons differently based on their self-chosen lifestyle. Forcing vegetarians to eat meat, for example, is wrong.
- Is discrimination wrong because it’s differential treatment of persons based on characteristics that are superficial or irrelevant, for example when we refuse to eat somewhere simply because the restaurant owner is black? That can’t be the case either. If I prefer to marry a blond because I believe blond women are better wives, I’m not discriminating against non-blonds. And if I’m the only one refusing to eat in a black man’s restaurant, it’s hard for him to claim that he’s discriminated against.
- Is discrimination wrong because it fails to treat people as individuals and relies on inaccurate stereotypes? For example, because I believe African Americans can’t cook properly and I therefore don’t bother to check out the food of an individual African American restaurant owner? Again, discrimination must be something else, for two reasons. First, there are laws against discrimination based on correct stereotypes, so-called statistical discrimination. Employers can’t just refuse to hire young women simply because young women are more likely to have children and hence be absent from work. Second, I may rely on inaccurate stereotypes and not engage in discrimination. For example, if I organize a successful boycott of German classical music based on the erroneous belief that this music is inferior to French classical music, I don’t discriminate orchestras or record labels that produce German classical music.
So then, why is discrimination wrong? Discrimination is wrong because it is a denial of rights. Not all denials of rights are discrimination – for example I imagine that Kim Jong Il denies the rights of all North Koreans consistently without discrimination. But discrimination is a denial of rights, and a denial of a particular type, namely the unequal denial of rights.
But not every case of unequal denial of rights is a case of discrimination. For instance, if some people in police custody are beaten up and others aren’t that’s not necessarily discrimination. Discrimination is the unequal denial of the rights of members of a socially salient group, and for no other reason than their membership of that group. It must be a socially salient group, i.e. a group that is an important and stable distinction in society, not a fleeting and inconsequential identity such as the group of people with blue eyes or people of the age of 40. Those groups aren’t salient and hence won’t be discriminated.
So, discrimination occurs when rights are granted to some and taken away from others, for no other reason than their membership of a socially salient group.
What exactly is a denial of rights? It’s an action (or a law, a custom etc.) that makes it impossible or very difficult to exercise one’s rights. That means that there won’t be discrimination if for example one lonely racist shop owner refuses to service blacks. Those blacks can easily exercise their rights by avoiding the racist shop. Only if the number of such cases is high and those cases occur systematically will there be denial of rights and hence discrimination. The policy of an army to reject homosexuals is discrimination because homosexuals can’t simply go to another army to serve their country. Racial discrimination at the time of Jim Crow and segregation was real discrimination because it substantially reduced the options of blacks who could not exercise their rights elsewhere.
If we revisit some of the examples given above we can see that they are not necessarily cases of discrimination as it is defined here. Giving people low grades or low salaries can be justified if it’s done for good reasons, i.e. not simply because of people’s membership of groups. But even if it’s done because of membership, it’s not discrimination if it’s isolated and if people can easily go elsewhere for their proper grades or salaries. Discrimination isn’t just about unequal treatment but also about options. Not all unequal treatment is discrimination. It’s discrimination when it also takes away the rights of those treated unequally. And their rights are taken away, not when there’s a single instance of unequal treatment based on group membership, but when there are many such instances and people can’t easily exercise their rights elsewhere. Their rights in these examples are the right to education and the right to fair wages. The same is true in the case of the sole racist member of a tolerant society refusing to eat at a restaurant owned by an African American. The restaurant owner isn’t denied his right to sell his food because one guy refuses to eat there.