The Relevance of Deliberative Freedom

Chapter Three, “The Relevance of Deliberative Freedom,” begins by considering a number of recent legal cases of discrimination in which we cannot understand the concerns of the claimants unless we think of the wrongness of discrimination as extending beyond social subordination. The author argues that in these cases—cases such as Masterpiece Cake Shop and Chand v. I.A.A.F.—the discriminatee has been denied deliberative freedom, in circumstances where they have a right to it. Deliberative freedom is the freedom to deliberate about one’s life, and to decide what to do in light of those deliberations, without having to treat certain personal traits, or other people’s assumptions about them, as costs, and without having to live one’s life with these traits always before one’s eyes. People do not always have a right to particular deliberative freedoms; but there are circumstances in which they do, and wrongful discrimination often denies people these freedoms in circumstances where they do have a right to them. In this chapter, the author explores the idea of deliberative freedom in detail and explains both what it consists in and when we have a right to it. The author discusses the idea of “white privilege” in relation to deliberative freedoms. The author shows how both direct and indirect discrimination can deprive people of deliberative freedom in circumstances where they have a right to it. Lastly, the chapter argues that, given the importance in our society of treating others as beings capable of autonomy, infringing someone’s right to deliberative freedom is a way of failing to treat them as an equal.

The Duty to Treat Others as Equals: Who Stands Under It?

Chapter Seven, “The Duty to Treat Others as Equals: Who Stands Under It?,” focuses on the obligations of governments and private individuals to treat people as equals. The author considers several arguments for the claim that governments owe those whom they govern a duty to treat them as equals. The author then turns to the duties of individuals. The author argues that we do not acquire a duty to treat others as equals only when we occupy certain institutional roles. Rather, we always have an obligation to treat others as equals, in the specific senses discussed in this book: we must not unfairly subordinate some to others, or infringe their right to a particular deliberative freedom, or deny them access to a basic good when it is in our power to give it to them. The author argues that this obligation is not too demanding, and distinguishes it from the duty to give equal concern to everyone’s interests in one’s deliberations. The author tries to show that this duty is consistent with recognizing the importance of a variety of individual freedoms, and that there are often good reasons for the state not to use anti-discrimination law to regulate decisions made in more personal contexts. The author also explains why, nevertheless, the state has an obligation to help us fulfil our obligations in these more personal context, by creating the conditions under which we can relate to others as equals.

Access to Basic Goods

Chapter Four, “Access to Basic Goods,” turns to a third way in which discriminatory practices can wrong people: they can leave them without access to resources or social institutions that are “basic” in the sense that access to them is necessary for these people if they are to participate fully and equally in their society. The author explains that to identify a good as “basic” in this sense is not to claim that it is objectively good or that it is necessary for all groups in that society. The author argues that certain goods can be seen as basic only from the perspective of the person or group who lacks that good, and that it is therefore very important to look to the discriminatee’s particular situation, needs, and values. The chapter then explains the importance of this form of wrongful discrimination and gives examples of cases that are best understood in this way, including the fight for same sex marriage and for women’s freedom to breastfeed in public. The author also argues that there is a distinctive kind of wrongness involved when discrimination leaves someone without access to a basic good, different from the wrongs explored in other chapters of the book.

Unfair Subordination

Chapter Two, “Unfair Subordination,” develops a theory of unfair subordination and then uses this theory to help explain why discrimination wrongs people. The author explains why, in this context, it is important to think of subordination as “social subordination”—that is, as something that happens to a person by virtue of her membership in a certain social group. The author argues that social subordination involves not only differences in the power, authority, and deference given to particular social groups, but also, crucially, the presence of what the author calls “structural accommodations.” These are practices that normalize the needs of the superior groups and render invisible the needs of inferior groups. The author then uses this account of subordination to explain a variety of ways in which direct and indirect discrimination contribute to unfair subordination. Both forms of discrimination perpetuate differences in power, authority, and deference. Direct discrimination also subordinates by marking out certain people or groups as inferior, constituting an expression of censure. And indirect discrimination contributes to unfair subordination when it leaves in place problematic structural accommodations, rendering certain groups invisible, and thereby marking them out as inferior, in certain contexts.

Conclusion

In the book’s Conclusion, the author summarizes three ways in which discrimination wrongs people: by unfairly subordinating them to others, by infringing their right to a particular deliberative freedom, and by denying them access to a basic good. She identifies a number of advantages of this theory. She relates the theory to the serigraph on the cover of the book, discussing the wrongful discrimination faced by indigenous peoples in Canada.

Indirect Discrimination

Chapter Six, “Indirect Discrimination,” makes explicit the implications that the author’s pluralist theory of wrongful discrimination has for our understanding of indirect discrimination. The author argues that the distinction between direct and indirect discrimination is not always morally significant. Indirect discrimination, like direct discrimination, can subordinate people; it can infringe their right to deliberative freedom; and it can deny them access to a basic good. The author also considers questions of responsibility and culpability. The author distinguishes between “responsibility for cost” and “responsibility as culpability.” Agents of indirect discrimination are, in many cases, both responsible for the costs of rectifying discrimination and also responsible in the sense of “culpable.” The author explains how we can see both indirect and direct discrimination as involving negligence on the part of the discriminator.

A Pluralist Answer to the Question of Inequality

Chapter Five, “A Pluralist Answer to the Question of Inequality,” explains how the three different components of this pluralist theory of wrongful discrimination fit together into a coherent and unified picture. Each of the three wrongs discussed in earlier chapters—unfair subordination, infringements of a right to deliberative freedom, and denials of basic goods—is a way of failing to treat someone as an equal. But each gives us a different way of understanding what it means to fail to treat someone as an equal. In this Chapter, the author also considers the relationship between these three ways of failing to treat someone as an equal. The author also argues that each, on its own, is sufficient to render discrimination wrongful; although most cases of wrongful discrimination will be wrong for more than one reason. Finally, the author presents a number of advantages of this pluralist theory, explaining how it helps us to resolve puzzles about whether discrimination wrongs individuals or groups, and about the kinds of comparative judgments that we need to when assessing whether a particular discriminatory practice wrongs people.

A Question of Inequality

Chapter One, “A Question of Inequality,” argues that complaints of wrongful discrimination are best understood as claims that one has been treated as the inferior of others, rather than as their equal. It then introduces the question that the book will answer: When we disadvantage some people relative to others on the basis of certain traits, when and why do we wrong them by failing to treat them as the equals of others? The author discusses monist theories of why discrimination wrongs people—that is, theories that trace the wrongness of discrimination to some single feature in all cases—and argues that such theories are problematic, and that we need to look instead for a pluralist theory. The author discusses a number of challenges facing pluralist theories, and explains how the theory elaborated in this book will address these challenges. The chapter also includes a detailed discussion of the relevance of the law to our moral thought about why discrimination is wrong, and a discussion of the importance of using real examples with real claimants. The author argues that particularly because the different wrongs involved in wrongful discrimination depend on the background social context, hypothetical examples that have no background social context will not help us assess what is wrongful about wrongful discrimination. Moreover, hypothetical examples risk leaving in place misunderstandings about the groups that have historically faced wrongful discrimination and who have not been given a voice. If we are to understand the situation of these groups, we need to try to take their perspective and learn from their actual experiences.