The Powers of Discrimination

This paper defends a novel conception of discrimination as based on the idea of (legitimate or ostensible) normative powers.  We begin by challenging some contemporary philosophical approaches to the characterization of discrimination and its wrongfulness.  Contrary to these approaches, we argue that discrimination is not harm-based (even when harm is broadly conceived), and that its wrongfulness is not grounded in one uniform standard but depends instead on the raison d’être of the social practice at hand and the normative powers it justifiably entails.  Consequently, there need not be a universal standard (or standards) in order to determine whether a case counts as wrongful discrimination.  Rather, acts of discrimination will count as wrongful if discriminators employ their normative powers to make decisions that hold, or result in holding, certain traits or choices of the discriminatees against them.  Thus, the inquiry must focus on the normative power undergirding the pertinent acts and, ultimately, on the value of the particular practices where this normative power figures.  At a concrete level, this conception of discrimination shows why private discrimination in the market, including that motivated by religious belief, is wrongful, and also validates and clarifies why statistical discrimination cannot be deemed innocuous.  At a theoretical level, our analysis explains that many individual cases of wrongful discrimination arise from structural injustices.