Making Sense of Discrimination

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Ratio Juris. Vol. 27 No. 1 March 2014 (4778)
Making Sense of Discrimination

REEM SEGEV*
Abstract. Discrimination is a central moral and legal concept. However, it is also a

contested one. Particularly, accounts of the wrongness of discrimination often rely
on controversial and particular assumptions. In this paper, I argue that a theory of
discrimination that relies on premises that are very general (rather than unique to
the concept of discrimination) and widely accepted provides a plausible (exhaus-
tive) account of the concept of wrongful discrimination. According to the combined
theory, wrongful discrimination consists of allocating a benefit that is not supported
by a morally significant fact (a valid reason), or in a way that involves distributive
injustice, or both.
1. Introduction
Discrimination is a central moral and legal concept. However, the concept of
discrimination is unclear and contested with respect to the fundamental fault of
discrimination (the question of why discrimination is wrong) and regarding the
scope of the concept of wrongful discrimination (the question of when discrimi-
nation is wrong). Indeed, even the paradigm of discrimination, namely the con-
ventional meaning of the concept of discrimination as reflected in natural language
and in law, is unclear and not uniform. This paradigmthe denial of a benefit
based on race, sex, and religionis unclear and not uniform, especially since it
does not seem to be a necessary or a sufficient condition of wrongful discrimina-
tion. In addition, there are more specific questions, for example, what is morally
unique about the paradigm grounds of discrimination, whether rational discrimi-
nation and a practice of separate but equal are wrong, and when affirmative
action is justified. A successful theory of discrimination should explain why and
(accordingly) when an action constitutes wrongful discrimination. Such a theory
should therefore meet two conditions: a normative conditionit should rely on
sound (general) normative premises that entail plausible (specific) normative
implications; and a conceptual conditionits implications should be compatible
* For helpful comments I am grateful to the participants in the Jerusalem Political Philosophy
Forum workshop at the Hebrew University (March 2010) and in the Global Research Fellows
Workshop at New York University (October 2012), as well as to Ofer Malcai, Liav Orgad, Ram
Rivlin, Shlomi Segall, Hanoch Sheinman, Michal Tamir, Jeremy Waldron, Joseph Weiler, and
an anonymous referee for Ratio Juris. I am also grateful to Beni Bekkerman for excellent
research assistance.
2014 The Author. Ratio Juris 2014 John Wiley & Sons Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main
Street, Malden 02148, USA.
48 Reem Segev
with (at least) a substantial part of the paradigm of discrimination, so that it

qualifies as a theory of discrimination. It is of course possible that no theory meets
these two conditions in a perfect manner, since no theory that is normatively
plausible entails something that is close enough to the paradigm of discrimination
and no theory that entails this paradigm is normatively appealing. Indeed, there is
no simple theory that clearly meets these conditions in a non-controversial manner.
In this paper, I suggest a theory that I believe meets these conditions in a
promising way: It relies on general and modest normative premises, entails
plausible specific conclusions, and provides a justification for the main part of the
paradigm of discrimination. The proposed theory is comprised of two parts: the
Moral Significance Conception (MSC), which condemns the allocation of a benefit
that is not supported by a morally significant fact (a valid reason); and the
Distributive Justice Conception (DJC), according to which wrongful discrimination
consists of allocating a benefit in a way that involves distributive injustice. Each of
these conceptions accounts for a different part of the concept of (wrongful)
discrimination and the part in which they overlap covers cases that are especially
wrongful.
The association of discrimination and moral insignificance is relatively straight-
forward and quite common. However, it is often misconstrued and conflated with
other ideas. The hypothesis that another part of the concept of discrimination is
based on a general conception of distributive justice, is (to the best of my
knowledge) unfamiliar (and certainly not systematically explored) in the literature
about discrimination, as is the theory that combines these two conceptions.
The main advantage of the proposed theory is normative: It relies on normative
premises that are clear (as opposed to, for example, mysterious conceptions of
dignity), very general (and not limited to the context of discrimination), thus not
raising the suspicion that they are ad hoc, and very widely accepted. The main
worry about this theory is conceptual, namely, that it might be too general and
therefore too remote from the paradigm and law of discrimination, so that it does
not qualify as a theory of discrimination (that is, fails the conceptual condition). I
argue that this is not the case, or at least that this theory is the best normative
justification of the paradigm of discrimination.
Before proceeding, I wish to clarify a few points. First, the fact that the
paradigmthe conventional understandingof the concept of discrimination is, at
least partly, formulated by many people without much reflection, affects what it is
reasonable to expect from a normative theory of discrimination in two respects.
One is that a justification of the paradigm of discriminationif it is possible at
allis not necessarily and even probably complete, justifying every aspect of the
paradigm and every common legal rule. Indeed while the proposed theory justifies
a substantial part of the paradigm and law of discrimination, it rejects a different
part. Another respect is that a justification of the paradigm of discrimination (that
is, the part of the paradigm that is justified, if there is such a part) is not necessarily
unified, namely, based on a single idea. While parsimoniousness is a virtue of a
moral theory, this is so only to the extent that other things are equal and of course
even then it is not the only pertinent virtue. With regard to a concept such as
discriminationa salient, controversial, and thick conceptwe should not expect
to find one distinct idea that all the many uses of the term discrimination reflect
in exactly the same manner. Therefore, the fact that the proposed theory is
2014 The Author. Ratio Juris 2014 John Wiley & Sons Ltd. Ratio Juris, Vol. 27, No. 1
Making Sense of Discrimination 49
comprised of two distinct general conceptions (and even more specific elaborations)
is, I believe, a virtue rather than a vice. Indeed, given the nature of the concept
under consideration, this theory is quite parsimonious in its premises.
Second, the paradigm of discrimination typically includes both a descriptive
dimension and a normative one, specifically a (negative) moral evaluation, namely,
it refers to wrongful discrimination (in other words, the concept of discrimination is
a thick one). Since my aim is to critically evaluate this normative judgment, I do
not assume, in advance, that it is correct, namely, that every type of action that is
part of the paradigm of discrimination is necessarily wrongful. Therefore, when I
refer to the paradigm of discrimination, I include only its descriptive dimension.
Third, I consider whether (why, when) discrimination is wrongful and not whether
(why, when) it is justified to prevent discrimination, inter alia through the law. While
these questions are related, they are distinct.
Fourth, a complete, conclusive argument in favor of the proposed theory requires
a comparison of its merits and drawbacks with those of competing accounts of
discrimination. Given the scope of the literature concerning discrimination, this
task is impossible in the framework of this paper. Therefore, my focus is on the
positive aim of demonstrating the advantages of the proposed theory, rather than
on the negative task of criticizing competing accounts. I only discuss a few
alternative ideas, which might be tempting at first sight and are quite common, in
a few places along the way when their failure relates to the proposed theory.
However, indirectly the positive discussion has implications also regarding the
comparative analysis and the negative task. I believe that the positive discussion
demonstrates that a theory that relies on premises that are general and widely
accepted, and in these respects parsimonious, provides a plausible normative
account of the concept of discrimination. This conclusion implies that theories that
rely on premises that are more particular and controversial, and thus less parsi-
monious, are unlikely to be more attractive overall.
I proceed as follows: I briefly describe the paradigm and law of discrimination
(Section 2), present the two conceptions that together constitute the proposed
combined theory (Section 3), explore the implications of this theory (Section 4) and
conclude (Section 5).
2. The Paradigm and Law of Discrimination

My aim in describing the paradigm of discriminationthe conventional meaning
of the concept of discrimination as reflected in natural language and in the common
legal rules concerning discriminationis modest. I merely wish to demonstrate that
the proposed theory is sufficiently related to the concept of discrimination to
qualify as a theory of discrimination. This task requires a relatively rudimentary
depiction.
The paradigm of (wrongful) discrimination is an allocation (particularly a denial)
of a benefit, such as employment, a (legal) license to engage in a certain activity or
higher education, in a way that is related (in some way) to certain personal features
(grounds of discrimination). The most common features are race, sex, and religion
but the list it typically longer (and seems to be expanding) and often includes also
national or ethnic origin, political affiliation, wealth, sexual orientation, disability,
and age. One version limits (wrongful) discrimination to cases in which the average
Ratio Juris, Vol. 27, No. 1 2014 The Author. Ratio Juris 2014 John Wiley & Sons Ltd.
50 Reem Segev
or typical person with the relevant feature is better off than a person without this
feature in some salient respect (that is typically unspecified except for a reference
to stronger or weaker groups). In contrast, what is typically not (wrongful)
discrimination, according to the conventional view, is the denial of a benefit due to
inadequate (absolute or relative) pertinent qualifications, in the wide sense of a
means to an end (most commonly financial profit), such as general intelligence or
specific knowledge or skill (Siegel 2011, 13434).
The law typically reflects the paradigm of discrimination, but goes beyond it by
way of specification and addition. These are the main rules, which are quite similar
(although not identical) in different countries, such as the United States, Canada,
and the United Kingdom. First, a prohibition of direct discrimination,1 namely, on
the allocation of a benefit (mainly employment and education) based on a para-
digm ground.2 This prohibition applies both to an action, when the aim of the agent
is to deny a benefit based on a paradigm ground, and to a rule, when its (explicit
or implicit) content denies a benefit based on a paradigm ground.
Second, a prohibition on indirect discrimination,3 namely, on the allocation of
a benefit whose outcome is disproportionate relative to the prevalence of the
relevant ground, for example, an employment procedure that results in only white
employees in a community in which many blacks reside.4
Third, a principle of accommodation that forbids a denial of a benefit for a
candidate due to the cost involved in selecting this candidate5 if this cost is related
to a forbidden paradigm ground, for example, the cost of adjusting a work
environment for the access or efficient employment of a person with a disability,6
a pregnant woman, a parent,7 or a religious person.8
Finally, there are defenses to the above principles. These defenses could be
classified as follows: general and typically unclear principlesincluding constitu-
tional principle, for example, fairness,9 proportionality,10 a rational means for an
important (enough) aim,11 or legitimate nondiscriminatory reason,12 and reason-
able necessity13 or real need14; defenses that refer to qualifications, for instance,
1
Other common terms for this prohibition are disparate treatment and intentional
discrimination.
2
See Washington v. Davis 426 U.S. 229 (1976); Canadian Charter 15(1); Hogg 2006, v. 2 55.11.
3
Other common terms for this prohibition are adverse effect discrimination and disparate
impact.
4
See Griggs v. Duke Power 401 U.S. 424 (1971); Moreau 2004, 2912; Holmes 2005, 1834; Hogg
2006, 55.11.
5
See Kelman 2001, 8405; Jolls 2001, 64851; Employment Equity Act 1995 (Canada) 5(b).
6
See Americans with Disabilities Act 1990, Title I; Family and Medical Leave Act,
29 U.S.C. 2612(a)(1)(A) (1994); Ontarians with Disabilities Act 2001 (Canada) 8.
7
See Civil Rights Act, Title VII 42 U.S.C. 2000e-2(k); California Federal Savings & Loan
Association v. Guerra 479 U.S. 272, 289 (1987).
8
See Civil Rights Act 1964, Title VII, 42 U.S.C. 2000e-(j).
9
South Africa Constitution 9(5).
10
See Vande Zande v. Wis. Department of Administration, 44 F.3d 538 (7th Cir. 1995), p. 542;
Borkowski v. Valley Cent. Sch. Dist., 63 F.3d 131 (2d Cir. 1995), p. 138.
11
See Seattle School Case, p. 720; James Egan v. Canada [1995] 2 S.C.R. 513, 558560.
12
See McDonnell Douglas Corporation v. Green 411 U.S. 792 (1973).
13
See Ontario Human Rights Commission. v. Borough of Etobicoke [1982] 1 S.C.R. 202, p. 208.
14
See Halsburys Laws of England (4th ed.), volume 13 (2007 reissue), 422; R (E) v.
Governing Body of JFS [2009] UKSC 15, 319, 356.
bona fide occupational qualification (or requirement or justification),15

essential qualification (or ability),16 business necessity (and lack of alterna-
tive employment practice),17 job-relatedness (see Griggs case); and, regarding the
principle of accommodation, reasonable accommodation,18 undue burden,19
and undue hardship.20
A special rule, which is often presented as a defense, is a permissionand
sometimes a dutyto engage in reverse discrimination (affirmative action), namely,
benefiting a person based on a paradigm ground in a way that is the inverse of the
common pattern of (standard) discrimination, namely when the average or typical
person with the relevant feature is worse off than a person without this feature in
some salient respect, for example, preferring a black over a white candidate.21
The paradigm of discrimination and the standard legal rules concerning dis-
crimination are unclear to a significant degree. The most fundamental question is
what (if anything) is wrong with (the paradigm of) discrimination. More specific
questions, which should be answered in light of the answer to this fundamental
question, concern the content and scope of the appropriate standards regarding
discrimination. These questions are typically morally controversial and are typically
not clearly answered by the law. Here are several salient examples: What is morally
unique about the paradigm grounds of discrimination (in what way are they
different from other grounds that are typically considered morally innocent and
legal, for instance, eye color, as opposed to skin color?) and accordingly whether
these are all and the only forbidden grounds, whether rational discrimination
(discrimination that is not supported by a valid consideration) and a practice of
separate but equal are (necessarily or sometimes) wrong, and when (if at all) is
affirmative action justified (obligatory or at least permissible). I now turn to
consider these questions. I begin with a theory regarding the fundamental question,
after a few brief remarks about the shortcomings of some alternative accounts,
before considering the implications of this theory concerning the scope of the
concept of wrongful discrimination.
3. Theory
Before considering the theory that I believe provides a plausible answer to the
basic question of what is fundamentally wrong with discrimination, I wish to make
two preliminary points. The first concerns an objection to the question itself. The
objection is that there is no need to answer this question since the paradigm of
15
Civil Rights Act, Title VII, 42 U.S.C. 2000e-2(e)(1); Canadian Human Rights Act 1985
15(1)(a), 15(1)(g).
16
Employment Equity Act 1995 (Canada) 2, 6(b), 33(b).
17
See Civil Rights Act, Title VII, 42 U.S.C. 2000e-2(k); Chevron v. Echazabal 536 U.S 73 (2002);
Jolls 2001, 6545.
18
Civil Rights Act, Title VII, 42 U.S.C. 2000e-(j); Americans with Disabilities Act 1990
12112(b)(5)(A) (1994); Employment Equity Act 1995 (Canada) 5(b), 10(a).
19
Americans with Disabilities Act 1990, 42 U.S.C. 12182(b)(2)(A)(iii) (1994).
20
Americans with Disabilities Act 1990, 42 U.S.C. 1211112112 (I994); Civil Rights Act, Title
VII 42 U.S.C. 2000e-(j); Canadian Human Rights Act 1985 15(2); Employment Equity Act
1995 (Canada) 6(a) 33(a).
21
See Canadian Charter of Rights & Freedoms 15(2). For a different rule, which prohibits
affirmative actions, see California Constitution, 31.
52 Reem Segev
discrimination is the most fundamental standard in this context. According to this

view, the paradigm of discrimination is inherently wrong and is accordingly
constitutive of wrongful discrimination, namely it is both necessary and sufficient
for (wrongful) discrimination.22
The suggestion that a more fundamental account of the wrongness of discrimi-
nation is redundant seems to me unpersuasive for two reasons. First, the idea that
the paradigm of discrimination is the most fundamental moral standard in this
context is implausible. Not every feature of the paradigm of discrimination is
constitutive of the fundamental moral status of the paradigm. The paradigm of
discrimination seems very different in this respect from principles that are plausibly
considered as fundamental, such as the principle that individual well-being is a
moral value (at least the most rudimentary aspects of this principle, such as the pro
tanto prohibition on causing pain), or the (pro tanto) reason to prefer a greater
benefit to one person rather than a smaller benefit to another (when it is impossible
to benefit both), or even the (pro tanto) reason to prefer a worse off person to a
better off person regarding the allocation of a benefit. Rather, the paradigm of
discrimination seems to belong to the type of derivative principles that are
explained in light of more fundamental ones.
The additional reason why the view that the paradigm of discrimination is the
most fundamental standard in this context should be rejected is that it leads to
implausible conclusions, which are also incompatible with the paradigm of dis-
crimination. Most clearly, it is over-inclusive since taking account of a paradigm
ground of discrimination is sometimes morally justified. A familiar example is
taking account of the race of an actor when it affects her performance as a character
one of the central features of which is her race. The view that the paradigm of
discrimination is the most fundamental standard is arguably also under-inclusive
as some actions are wrong (as discrimination) although they are not based on a
paradigm ground. The lesson is again that we need a deeper explanation of the
wrongness of discrimination.
The second preliminary point that I wish to note is the inadequacy of two
influential accounts of discrimination. My aim here is not to consider alternative
accounts of discrimination in a systematic or an exhaustive manner, but rather only
to note several limitations of influential accounts that are especially relevant to my
discussion. These accounts are unsuccessful at least in the sense that they do not
provide a sufficient foundation for the wrongness of discrimination and therefore
require supplementationspecifically in the form of the theory that I propose in
what follows. One common account is based on the idea that discrimination is
wrong due to its negative effect on the person who is being denied a benefit, for
example, in terms of well-being or autonomy.23 This account is misguided since
while there is (I assume) a consideration against denying a benefit to a candidate
due to the negative effect of this action on the candidate, this does not in itself
account for the wrongness of discrimination since the paradigm of discrimination
typically applies in cases in which there is more than one candidate and therefore
22
See Parents Involved in Community Schools v. Seattle School District 551 U.S. 701 (2007); Ricci
v. DeStefano 530 F.3d 87 (2009).
23
For various versions of this idea, see Gardner 1989, 122; Gardner 1998, 171; Moreau 2010,
14379; Zamir and Medina 2010, chap. 8.
there are several clashing considerations of this type. Since it is often impossible
or implausible to give the benefit to every candidate, so that giving the benefit to
one candidate necessarily means denying it to another, discrimination cannot be
typically wrong just because it involves the denial of a benefit with its associated
detrimental effects on individual well-being or autonomy.
There is a version of the idea that discrimination is wrong due to its negative
effect on the person who is being denied a benefit that is ostensibly not exposed to
this difficulty. This version is based on a non-consequential, agent-relative con-
straint, which forbids actions that negatively affect the well-being or the autonomy
of a person. But the standard versions of such constraints do not entail the
paradigm of discrimination for two reasons. First, such constraints forbid doing or
intending harm, while a refusal to select a candidate often seems more like allowing
(rather than doing) harm unintentionally. Second, even if such a refusal somehow
violates a deontological constraint, there is again the problem that the relevant
action, of the same agent at the same time, applies in the same way to every candidate
(this reinforces the previous point that there is no deontological constraint on this
type of actions). Therefore, when there is more than one candidate (as is typically
the case), discrimination cannot be wrong for this reason.
Another influential account of discrimination associates its wrongness with the
notions of (lack of) respect, dignity, or humiliation.24 This account is ambiguous.
One version refers to a subjective, actual emotion (humiliation) of the candidate that
did not receive the benefit (as a necessary and sufficient condition of discrimina-
tion). The implications of this version are incompatible with the paradigm of
discrimination. First, this version is unsatisfactory for the same reason that the
previous account fails, namely since the common case of discrimination is sym-
metrical in this respect. In addition, this account is based on the assumption that
only a candidate who is denied a position based on a paradigm ground of
discrimination experiences, not only disappointment and frustration, but also
humiliation, whereas a candidate who is denied a position based on a non-
paradigmatic ground, including lack of qualifications, does not. This assumption
seems dubious: A candidate who is denied a position due to lack of qualifications
might well feel humiliated, especially if the relevant qualifications are of general
significance, for example, intelligence. Finally, even if this assumption is accurate,
it is unclear why the difference between humiliation and other negative emotions
is morally significant: Why only humiliation and not disappointment, for example,
matters.
Another subjective version of the same account (see, for example, Altman 2011)
refers to the negative attitude of the agent, for example, her derogatory attitude
(again, as a necessary and sufficient condition of discrimination). This version is
unhelpful for several reasons. First, the paradigm of discrimination is not limited to
such an attitude; it applies also to an action that is motivated, for example, by
preference or hatred that is not accompanied by a derogatory attitude (compare
Lippert-Rasmussen 2007, 667). Moreover, such an attitude is not necessarily wrong,
for example, when it is based merely on an evaluation of the qualification of a
24
See Hellman 2009, chap. 12; Moreau 2007, 41530; Seattle School Case, 752; Law v. Canada
[1999] 1 S.C.R. 497, par. 4055.
54 Reem Segev
candidate (compare Moreau 2004). Finally, the view that the attitude of an agent
affects in itself the moral status of her action is controversial (Lippert-Rasmussen
2012, 74).
A different account of discrimination refers to respect, dignity, or humiliation in
a non-subjective sense. However, in itself, this version does not offer an alternative
account: It only states that the purported wrong is not due to the subjective feeling
of the victim of discrimination but it does not explain what it isboth in terms of
a general principle and in terms of specific implications, for example, regarding gay
marriage. There are, of course, more specific versions of this idea, but considering
them is beyond the scope of this paper. My aim here is to suggest an alternative
account. However, I should at least note the general reason why I think this account
is better than objective versions of the dignity view: It rests on premises that are less
mysterious and less controversial.
3.1. Moral Significance

The first part of my account of the fundamental wrongness of discrimination is
based on the Moral Significance Conception (MSC). In its most general form, this
conception requires an agent to take account of a (non-moral) fact that is morally
significant (that constitutes a valid consideration) and forbids her to take account
of a fact that is morally insignificant (an invalid consideration). The answer to the
question of which facts are morally significant and which are not is determined by
the applicable moral standard with respect to the pertinent type of action. In this
way, the moral status of an action is determined in light of a combination of a moral
standardfor example, a pro tanto consideration in favor of promoting individual
well-being, or against harming a person, or an overall conclusion in favor of
preferring one person over another in the allocation of benefitsand a non-moral
fact that is morally significant according to this standard. A wrongful action is
wrong partly because of a moral standard and partly due to a non-moral fact. For
example, the fact that a certain liquid prevents harm is morally significant in light
of the moral standardthe pro tanto reasonin favor of preventing harm. In
contrast, the color of the cup that contains the liquid is typically not morally
significant.
According to this account, an action might constitute wrongful discrimination if
it is not supported by a (valid) reason, either because it involves a moral mistake,
for example, the view that the skin color of a candidate is a fact that is morally
significant in itself (in the typical context in which it is not), or a non-moral mistake,
for example, the view that blacks are typically less talented than whites in a certain
respect (where this is not the case). Note that this idea is different than the general
idea of wrongness because it focuses on a distinct type of case in which there is no
reason in favor of the action, as opposed to a case of an action that is wrong despite
the fact that it is supported by a reason due to the existence of a contrary reason
that is decisive.
The abstract (formal) version of the MSC merely states that some facts are
morally significant and some are not, without specifying these facts. This version
is presumably uncontroversial. A substantive version determines which facts are
morally significant and which are not. Every plausible substantive conception is
context relative since the answer to the question of which fact is significant depends
on the type of action (and perhaps other aspects of the context). The MSC requires
that the pertinent fact be morally significant regarding the justification of the action
that is under consideration. In other words, the requirement is that there be a (pro
tanto) consideration in favor of the action. Here I assume a substantive conception
that seems uncontroversial. While this conception is only partial, it illustrates the
basic idea and, moreover, provides a basis for evaluating most of the paradigm of
discrimination. Positively, this conception includes two premises. The first is that
(at least the core of) individual well-being is morally significant (in itself), namely
there is a (pro tanto) consideration in favor of promoting the well-being of a person.
This premise seems beyond dispute. Indeed, this is arguably the only premise that
is compatible with every familiar moral theory (see Mill 2001, 3; Williams 1972,
978; Kagan 1989, 7; Kagan 1998, 30). In the context of discrimination, this premise
implies that the well-being of the agent (as of every other person) matters. The
second premise is that the size of the individual benefit is morally significant,
namely that there is a (pro tanto) consideration of priority for the greater individual
benefit. (Note that these considerations refer to individual well-being and are thus
different from considerations that refer to aggregate well-being, which are more
controversial.)25
These premises entail that everything that is instrumentally important due to its
contribution to these considerations is also morally significant. This typically
includes money. It also includes the qualifications of an employee, in other words,
her ability to contribute (more) to the well-being of a person, including a client and
the employer. This means that there is typically a consideration in favor of
preferring the more qualified candidate in this sense. Negatively, the substantive
conception that I assume considers the paradigm grounds of discrimination, such
as race and sex, as typically morally insignificant in the context of choosing among
candidates for employment and education. Again, this premise seems to be
uncontroversial.
While the most general form of the MSC states that the right action is the one that
properly reflects all and only those facts that are morally significant, the concept of
discrimination typically focuses on more specific aspects of this general idea: on the
negative aspect of this idea, which excludes morally insignificant facts (rather than
the positive part that affirms the significance of various facts); on instrumental
(rather than intrinsic) moral insignificance (and particularly on facts that do not
affect the ability to perform a task well);26 and on the paradigm grounds of
discrimination, which are often morally insignificant, namely based on unfounded
prejudices and stereotypes.27
I would like to clarify a number of points with respect to the MSC.
First, it has two versions. The objective one is concerned with the question of
whether there is in fact a good reason for the action under consideration. The
subjective one is concerned with the question of whether the agents actual
25
For a similar distinction, see Tungodden 2003, 18.
26
Compare to the claim that the constitutional prohibition of discrimination in the United
States refers just to means and their correlation with the ends rather than with ends
themselves: Fiss 1976, 10817.
27
For identifications of discrimination with a conception of moral insignificance (presumably
as the only conception of discrimination), see Cowan 1972, 10; Nagel 1997, 3078; Fiss 1976,
109; Saunders 2010, 59, 61.
56 Reem Segev
(motivating) reason is a good one (namely, it is a reason as opposed to a mistaken

view that it is a reason). I focus on the objective aspect since it seems to be the one
that is more closely related to the question of right and wrong, which is my focus
in this paper, whereas the subjective one seems more relevant to the culpability of
the agent.
Second, discrimination is wrong, according to this conception, since not consid-
ering a fact that is morally significant, or considering a fact that is morally
insignificant, is a moral mistake in terms of deliberation, which often leads also to
a mistaken overall conclusion and to a wrongful action.
Third, there are two possible versions of the MSC: The ideal version is concerned
with fundamental moral significance, while the pragmatic version is concerned with
the rules that would lead agents who are imperfect in terms of information or
motivation to take account of the morally significant facts and not take account of
the insignificant facts. These versions might diverge when the best way to make a
person take (or not take) account of a certain fact is not by stating this explicitly but
by some other way. In order to avoid this complication, I generally assume perfect
information and motivation (so that there is no difference between these versions).28
Fourth, a moral standard typically specifies in a positive manner facts that are
morally significant rather than facts that are not. The latter is typically done
implicitly by not specifying insignificant facts when formulating a standard. In other
words, the default is moral insignificant. But the basis for this default rule is
presumably only that it is more parsimonious, since significance is much less
common than insignificance. An exception is therefore appropriate when the
insignificance of a fact is salient, for example, since people often mistakenly think
that it is significant or because people often perform actions that are morally wrong
since they are based on this fact although they recognize its insignificance. Perhaps
the clearest example for this phenomenon is a principle against discrimination.
Fifth, the law (at a certain place and time) reflects a certain substantive and
pragmatic version of the MSC that determines which facts are legally significant. This
conception might or might not be morally justified.
Sixth, and finally, the MSC is not necessarily based on a concern for equality in
the strict sense, namely comparative equality (the situation of one person compared
to another in some respect, for example, well-being). This conception is compatible
with a moral view that does not consider equality (in this strict sense) as morally
significant in itself, for example, utilitarianism (or right-libertarianism). Indeed, it
does not require a comparison between persons for its implementation: It is enough
to consider whether the denial of a position from a single person is supported by
a valid consideration. A comparison might be of epistemic significance when it
illuminates the actual (moral or non-moral) facts or the agents motivating reason
(to the extent that this is important), namely the fact that one person is denied a
benefit that another gets when there is no apparent significant difference between
them is an indication that the allocation is not supported by a valid reason or is
actually based on a fact that is morally insignificant. But this is merely evidentiary:
When the state of affairs is clear, the comparative aspect is immaterial.
28
This raises the question of the moral status of mistakes. But I believe that my essential point
is compatible with every plausible view regarding this matter. I consider this question in
Segev 2012.
The MSC accounts for a central part of the paradigm and law of discrimination.
Moreover, it accounts for it in the right way, in that it reflects a common intuition
with regard to what is problematic in common cases of discrimination. Generally,
the paradigm and the law of discrimination often apply to actions that are not
supported by a morally significant fact and do not apply to actions that are
supported by such a fact (see Finnis 2011, 27; Segall 2012a, 92). This is the most
plausible interpretation of several common legal rules regarding discrimination.
First, the common prohibitions on discrimination are limited to actions that are
not supported by a morally significant fact. The paradigm grounds of discrimina-
tion are almost always morally insignificant, for example, race and sex in the
context of employment and education. And the principle of indirect discrimination
might serve the aims of uncovering a covert invalid (motivating) reason (see Primus
2003, 5203, 5325), or of frustrating a bias based on the paradigm grounds of
discrimination (see Bagenstos 2003, 850). Second, a common defense to a prohibi-
tion on discrimination is that the pertinent action is supported by a morally
significant fact. This seems to be the best interpretation of common defenses that
employ terms such as relevant or rational. This is the most straightforward
interpretation for the common specific conclusion that a refusal to hire a candidate
due to lack of qualifications typically does not amount to wrongful (and illegal)
discrimination.
On the other hand, the MSC does not account for another significant part of the
paradigm and law of discrimination: the prohibition on actions that are supported
by a morally significant fact (rational discrimination), most notably the doctrine of
accommodation that prohibits a refusal to hire a candidate with a disability even
if her ability to perform the relevant task effectively (profitably) is diminished due
to the disability. While such actions might be wrong (and, I believe, are sometimes
wrong), it is not because they are not supported by a morally significant fact. This
is why the MSC is only part of a complete theory of discrimination.
Several objections to the MSC are worth considering. One objection is that this
conception is empty as it presupposes, rather than explains, the wrongness of
discrimination, since it considers a fact as morally insignificant if it is wrong to rely
on it, and therefore it cannot be wrong to rely on it as it is morally insignificant.
However, this is not the case. First, the MSC focuses on one type of wrongful
actions: actions that are not supported by any (valid) reasonas opposed to actions
that are supported by a (valid) reason but are wrong since there is a decisive reason
against them. Second, the MSC determines which facts are (not) morally significant
based on a standard that is independent of its implication concerning discrimination,
such as the assumption that individual well-being is morally significant and that
race and gender are typically not significant to decisions concerning employment
and education. Finally, the MSC leads to specific conclusions that are different than
other accounts of discrimination (including the other part of the proposed account:
the Distributive Justice Conception). Specifically, it does not condemn rational
discrimination whereas such discrimination is sometimes wrong according to other
accounts (including the Distributive Justice Conception).
Another objection is that the MSC is too general as an account of discrimination
and does not account for what is uniquely wrong about discrimination. Now, there
is a trade-off in this context between normative plausibility and accounting for
details of the paradigm. The proposed account is indeed very general. Yet it is
58 Reem Segev
nevertheless true, I believe, that one common denominator of a significant number

of actions that are part of the paradigm of discrimination is that they are based on
superstitions rather than valid reasons. And it is important to identify the common
denominator of this salient category. This general account is compatible with more
specific distinctions among types of mistakes involved in discrimination and
specifically with the conceptual, epistemic, and instrumental importance of the
paradigm grounds of discrimination (see Section 4.1).
A different objection is that acting in a way that is not supported by a morally
significant fact is not a necessary condition for wrongful discrimination (see
Hellman 2009, 90, 115, 11721; Gardner 1998, 1689). This observation is correct, but
it is compatible with the MSC, since this conception is not an exhaustive theory of
discrimination. Such a theory includes, I would argue, the Distributive Justice
Conception. Violating the MSC is thus one form of wrongful discrimination, but not
the only one. However, it is a distinct form of wrongful discrimination: There is a
difference between an action that is supported by a morally significant fact and an
action that is not, even when (for different reasons) both amount to wrongful
discrimination.
Another objection is that violating the MSC is not a sufficient condition for
(and therefore is not always) wrongful discrimination. For example, not hiring a
person because her last name begins with the letter A (assuming that this fact
is morally arbitrary) is not, according to this objection, wrongful discrimination
(see Arneson 2006, 784; Hellman 2009, 1421, 115, 1217, 197 n. 37, 1712). This
objection might be understood as referring either to wrongfulness in general or
to wrongful discrimination in particular. The general version is surely mistaken:
An action that is not supported by a morally significant fact reflects a moral mis-
take and is often morally wrong due to this mistake. The more specific version
that, while wrong, this type of action does not necessarily amount to wrongful
discrimination (Hellman 2009, 1421)is not an objection to the normative content
of the MSC, but to its relation to the standard meaning of the concept of
discrimination. This objection seems to me mistaken, since a central part of the
paradigm and law of discrimination is based on this conception. Indeed, even
the example of turning down a candidate based on the first letter of her name
might be a case of wrongful discrimination according to the conventional
meaning of this idea.
An additional objection is that an account of discrimination must be based on the
concept of (comparative) equality, whereas the MSC is not. One version of this
objection seems to deny any valid non-comparative standards (Hellman 2009, 478,
1257). This is surely a mistake: a non-comparative standard is possible and
plausible, for example, the non-comparative (pro tanto) principle against harming
persons. Clearly, it is sometimes difficult to determine what the appropriate
non-comparative standard is, but this is merely an epistemic concern, which applies
also to comparative standards (as the controversy regarding the proper conception
of comparative equality demonstrates). A more plausible version of this idea is that
discrimination is necessarily comparative since the very name discrimination
implies [. . .] that it is essentially concerned with peoples relative positions
(Gardner 1996, 355; Altman 2011). This might be right in the sense that most people
think and speak of discrimination in comparative terms. But even if this is the case,
it does not imply that discrimination is fundamentally wrong (when it is wrong)
due to this feature. And I believe that the MSC represents a wrong that is often
described as discrimination in natural language and in law.
According to a different objection (Hellman 2009, 31), there is unlikely to be a
definite list of permissible reasons for distinguishing among people (although
there is one clear reason not to). This assertion is unclear as to the nature of the
difficulty, but to the extent that the suggestion is that there are no correct (morally
significant) and incorrect grounds for distinguishing among people, it is presum-
ably mistaken, and to the extent that the claim is just that it is (sometimes) difficult
to determine whether a fact is morally significant, it is correct but does not
undermine the MSC.
A further objection is that merit, in the sense of adequate qualification for a job,
is not an appropriate basis for an account of discrimination, since it is determined
on the basis of personal preferences, which are not morally significant in them-
selves (Hellman 2009, 89). A similar objection (Hellman 2009, 111) is that there is
nothing particularly good or valuable about making money and therefore merit in
the sense of the ability to perform a task well, which in turn affects profit, should
not preclude wrongful discrimination. These might be considered as objections to
the MSC to the extent that preferences, money, and qualifications are morally
significant, for example, due to their effect on individual well-being. However,
these objections lack persuasive force. The question that the MSC considers is
whether a fact is morally significant. This question is important even if the
explanation as to why this is the case points to unfortunate facts. Preferences,
qualifications, and money are clearly often (albeit not always) morally significant
although only instrumentally so, to the extent that they affect individual well-being
and the consideration in favor of the greatest individual benefit.
3.2. Distributive Justice

According to the other part of the proposed theory, the Distributive Justice
Conception (DJC), wrongful discrimination consists of distributive injustice. The
content of distributive justice is of course a complex and controversial topic and
there are various accounts of distributive justice regarding its object (well-being,
resources, or capabilities, whether overall or partial, and in the form of outcome or
chance), pattern (equality, priority for the worse off, sufficiency, responsibility, or a
combination of several of these patterns), and value (intrinsic or instrumental,
consequential or deontological). The DJC is compatible with every account of
distributive justice. Here I assume a distributive conception that accounts for a
central part of the concept of discrimination, which is not covered by the MSC, and
relies on very modest, indeed arguably uncontroversial premises. This conception
includes a central (maybe the central) aspect of distributive justice, namely a pro
tanto consideration in favor of allocating a (limited) benefit equally among persons
who are equally well off, or giving it to the worse off person among persons who
are not equally well off.29 I believe that this basic distributive idea reflects an
29
I have argued for a specific conception of distributive justice in other papers, but my
account of discrimination is compatible with other distributive conceptions (Segev 2006; 2009;
2010).
60 Reem Segev
important, constitutive feature of (one type of) wrongful discriminationthe focus

on denying a benefit to a person who is worse off.
This conception relies on very modest premises and is accordingly widely
accepted, particularly in light of the following points. First, while there is consid-
erable support for the intrinsic value of this basic distributive consideration (Otsuka
and Voorhoeve 2009, 1745), it is enough, for a theory of discrimination, that it is
supported by an instrumental concern, and no-one denies the common instrumental
value of this consideration. Second, according to a common view, a conception of
distributive justice should incorporate other concerns as well, most notably a
concern for responsibility. This is more controversial. However, I think that we can
avoid this controversy while explicating the concept of discrimination by assuming
that the relevant persons are not responsible for their situation in a pertinent
manner. Thus, the analysis is compatible with every view concerning responsibility.
Clearly, if responsibility is morally significant in this context we should take it into
account, but I believe that the simplifying assumption that ignores responsibility in
this context is a good way to demonstrate the general nature of the proposed
conception, especially since it seems that many victims of discrimination are not
responsible in a relevant sense.
I believe that the DJC provides a plausible basis for an important part of the
paradigm and law of discrimination, but it is not a necessary condition for
discrimination, since the DJC is only a part of a general theory of discrimination,
together with the MSC, and it seems that distributive injustice is also not a
sufficient condition for discrimination, since the concept of discrimination focuses
only on some types of distributive injustice (compare Segall 2012a, 83, 93). The
exact part of distributive justice that is the basis for discrimination is unclear since
the paradigm and law of discrimination are unclear in the relevant respects, but the
focus seems to be roughly on the intersection of the basic distributive consideration
and the paradigm grounds of discrimination.
The most important implication of the DJC is that it might apply also to rational
discrimination, namely to a case in which a benefit is denied to a person based on
a morally significant fact, so that avoiding the action involves a moral costas
opposed to a case in which the action is not supported by such a fact (and reflects
an irrational prejudice). This is so since the moral significance of a fact depends on
the context and therefore a fact might be morally significant in one respect but not
in another. Particularly, the ability of a person to perform a certain task more
effectively than another might be morally significant due to its contribution to
individual well-being, but morally insignificant in terms of the basic distributive
consideration (Nagel 1972, 352). Therefore, a clash of considerations might occur
when the choice is between a candidate who is more effective and also better off
than another: A consideration of priority for the greater benefit is in favor of
preferring the more qualified candidate, while the basic distributive consideration
is in favor of the worse off candidate. The resolution of this clash should be based
on the (relative) importance of the applicable considerations. The importance of the
basic distributive consideration depends (roughly) on the degree of inequality and
the importance of the consideration of priority for the greater benefit depends on
the extent to which the more qualified candidate contributes more in terms of
well-being. The conclusion is clear when one consideration is weak and the other
strong: The DJC requires the selection of a candidate who is very badly off if she
is only slightly less qualified. However, when one candidate is much more qualified
and only slightly better off, she should be selected. Sometimes, the ideal resolution
of this clash is selecting the more qualified and better off candidate and compen-
sating the other (Segall 2012b). This option might be inappropriate, however, when
(full) compensation is either impossible or very costly. When both considerations
are either weak or strong, and compensation is inappropriate, the conclusion is less
obvious. But the important point is that these are the relevant variables.
The fact that this type of case involves a clash of considerations, and therefore a
necessary moral cost, is sometimes ignored or trivialized. Some highlight the
consideration of greater benefit (and the consideration of responsibility that might
favor the same conclusion) at the expense of the basic distributive consideration
(Finnis 2011, 2735), while others focus on the latter and ignore the former. Both
these views are misguided. We should acknowledge this clash and its importance
since both considerations are real and important.
This analysis implies that, according to the DJC, a prohibition on discrimination
sometimes involves a moral cost, particularly in terms of forgoing the greater
benefit, when the conclusion is to prefer a less qualified (worse off) candidate.
According to this conception, the persons who should bear this cost should also be
determined in light of the appropriate principles of distributive justice. This means,
typically, that the cost should be distributed among many people, mainly those
who are relatively better off (through the tax system or in some other way).
Particularly, it should not be (only or especially) the agent to whom a legal
prohibition on discrimination applies in the specific case, for example, an employer.
This distributive consideration might clash with another consideration, mainly
priority of the greater personal benefit, if it is more efficient that a certain person
(such as an employer) would bear this cost alone, but such a clashing consideration
does not always apply and when it does, it is not always decisive.
The DJC explains the mistake in the influential account of discrimination that
considers discrimination as wrong due to its negative effect on the person who is
being denied a benefit (see section 3). This account fails (inter alia) due to the
symmetrical nature of the common case of discrimination, but its failure explains
the role of the DJC of discrimination. This conception clarifies why denying a
benefit to one candidate but not to another sometimes constitutes wrongful
discrimination.
The DJC is compatible with a substantial part of the paradigm of discrimination
and with several common legal rules. Indeed, I believe that it covers most of the
part of the paradigm of discrimination that is incompatible with the MSC and the
entire remaining part that is justified. While the DJC might not be the only account
that is compatible with this part, I believe that it is the most plausible such account
and particularly the one that relies on the least controversial premises.
Specifically, the DJC supports a prohibition on rational discrimination. The most
salient category in this respect is the principle of accommodation, which requires
that agents, such as employers, bear a cost, as long as it is below a certain threshold,
for example, the cost of adjusting a workplace for a person with a disability or a
parent. The doctrine of indirect discrimination also sometimes applies to actions
that involve a cost, for example, by prohibiting an employer to require her
employees to speak only a certain language in light of the preferences of customers
or co-workers. Indeed, even the doctrine of direct discrimination sometimes forbids
62 Reem Segev
taking account of facts that are morally significant, typically since this involves a
cost to an employer. Finally, a common defense of prohibitions on discrimination
requires not merely that the relevant action be supported by a valid consideration,
but also that the importance of this consideration be beyond a certain threshold, for
example, the defense of unreasonable burden (rather than any burden) to the
requirement of accommodation. While this defense might be compatible with the
MSC, it is more plausible that it is based on a distributive concern, especially when
the consideration in favor of the action needs to be strong.
The DJC implies that the relevant terms employed within these legal rules should
be interpreted so that the burden is considered as reasonable or not involving an
undue hardship when a distributive consideration is decisive, namely outweighs
every applicable clashing consideration based on a morally significant fact. This
standard is admittedly complex and vague, but it provides a guideline that is
coherent and (I believe) plausible.
There are, however, some respects in which the common understanding and the
law of discrimination are incompatible with the DJC. One is the ruling that an
action that involves a consideration of race is illegal regardless of whether it
advances a distributive goal. Another respect concerns the identity of the person
who bears the cost of a prohibition on discrimination. While the DJC requires that
this cost should be borne (roughly) by all the well-off persons, the law typically
shoulders (all or a substantial part) of this cost on a specific agent, mainly an
employer.
Several objections to the DJC are worth considering. One is that the idea of
equality is unhelpful in the context of discrimination since all discrimination
produces inequality between those preferred and those dispreferred (Alexander
1992, 191). While the proposed conception does not necessarily rely on the notion
of equality, this notion is one central way to complete the basic distributive idea
and it is therefore worth noting that this is inaccurate. It is true that every choice
of one candidate over another involves some pattern of inequality, but it is not true
that it involves the pattern that matters. Every distributive conception, including a
conception of equality, must specify the currency of justice, among other things,
and once this is done, it is no longer true that every allocation of a benefit involves
inequality (along this currency). Indeed, it might promote equality if the chosen
candidate is one who is otherwise worse off (and the currency is more general than
the effects of the specific action).
Another objection is that people who advocate equality of opportunities do
not mean literally that everyone should have the same opportunities. What they
mean is that opportunities should not depend on certain grounds, such as, say,
race (Holmes 2005, 192). This objection is unclear, but it seems mistaken on any
interpretation. If the claim is that no one accepts distributive considerations, it is
clearly mistaken, given the common view that considers the fact that one person
is worse off than another as a reason to prefer the former in the allocation of
benefits (at least if she is not responsible for her condition). If the objection is just
to a principle of equality of opportunity, it might be more plausible (depending
on how exactly this ambiguous term is understood), but does not apply to other
distributive considerations, particularly relating to outcomes. Finally, a plausible
moral theory does not consider equality and distributive concerns more generally
as the only consideration and therefore the overall conclusion is indeed not
always that of equality. But this does not undermine the validity of a pro tanto
distributive consideration. Perhaps the objection is merely that distributive prin-
ciples are not part of the concept of discrimination. In response to this hypothesis,
I can only repeat my claim that a concern for distributive justice provides a
plausibleindeed the most plausiblerationale for a significant part of the
concept of discrimination.
Another objection to an account of discrimination that is based on the notion of
distributive justice is thatimplausiblyit does not consider discrimination that is
directed against the better offthat is, the denial of a benefit to the better offas
wrongful (as discrimination). I believe, however, that the proposed theory entails
plausible conclusions in this respect too. First, it should be recalled that discrimi-
nation against the better off might be wrong for other reasons, and might spe-
cifically be wrong as discrimination, even according to the proposed theory, based
on the MSC, if there is no good reason in favor of the relevant action. It might be
thought that this is never the case since there is always a distributive reason in
favor of such an action. But this is not necessarily the case for two reasons. One
is that according to a subjective conception of justification, the agents beliefs and
accordingly reasons might not be based on these distributive concerns and in this
case her action might be wrong, even if there is an actual distributive reason in
favor of it. Another, and more important, reason in this context is that even
assuming an objective conception of justification there is not always a reason in
favor of harming a better off person; according to a plausible distributive account,
there is such a distributive reason only if there is an interpersonal conflict
specifically if the relevant resource is scarceso that denying the benefit to the
better off would contribute to the worse off (Segev 2009; 2010). While this is often
the case, it is not always so. Second, recall that the DJC entails only a pro tanto
reason against standard discriminationand in favor of preferring the worse
offand this reason in not always decisive. When it is not decisive, discrimination
against the better off is unjustified, even according to the DJC. Finally, when this
reason applies (inter alia since there is an interpersonal conflict between the better
off and the worse off) and it is decisive, I believe that denying a benefit to the
better off is indeed not wrong. Indeed, this is a typical case of justified affirmative
action.
An additional objection is that the DJC applies to what is paradigmatically not
wrongful discrimination, namely denying a benefit, specially employment or
university admission, due to very poor qualifications. But this is inaccurate. First,
the DJC condemns such an action only if the distributive consideration is decisive
and this typically is not the case when the pertinent qualifications are very poor. It
might be the case more often when the difference in qualifications is not substantial,
but this is compatible with the paradigm of discrimination, as the principle of
accommodation demonstrates. Moreover, the case of rejecting a candidate due to
lesser qualifications is indeed not the most serious form of wrongful discrimination
according to the proposed combined theory, since qualifications are typically a
morally significant fact and therefore only one part of the proposed combined
theory applies in this type of case.
Finally, the last objection is limited to a legal (as opposed to a moral) version of
the DJC. It is that legal rules against discrimination could not, or at least typically
do not, succeed in promoting distributive justice to a significant extent (and, in
64 Reem Segev
addition, there are better means of achieving this goal) (Holmes 2005, 1934). But
even this limited objection seems unpersuasive. Without reliable evidence to the
contrary, there is no reason to think that legal rules that reflect the DJC would never
promote distributive justice to some extent, or that the cost of such rules would
always exceed their contribution, or that other legal rules (that are better in other
respects) would always solve the problem of distributive injustice entirely (in a
manner that is better overall).
3.3. The Combined Theory

The proposed theory of discrimination is comprised of the MSC and the DJC.
According to this combined theory, each of these conceptions is sufficient for
wrongful discrimination, which means that neither is necessary for wrongful
discrimination; both conceptions are required for a complete account of the concept
of wrongful discrimination, and together these conceptions exhaust the concept of
wrongful discrimination. More specifically, according to the combined theory, the
core of wrongful discrimination, which is doubly and therefore typically especially
wrongful, is a violation of the MSC and of the DJC. This explains the very wide
agreement that the core of discrimination is wrongful: Since it is wrong according
to two reasons, different persons agree that it is wrong for at least one reason. But
discrimination also consists of a violation of one of these conceptions, without the
other: a violation of the MSC without the DJCfor example, when a morally
arbitrary feature of a well-off person is held against heror a violation of the DJC
without the MSCfor example, in a case of a merit system when the worse off are
less talented. These forms of discrimination are wrongful, although less wrongful
than a violation of both these conceptions. Finally, when an action does not violate
either of these conceptions, it is not wrongful (in terms of discrimination), accord-
ing to the proposed theory. This is sometimes the case, for example, with respect
to affirmative action (see section 6).
The MSC and the DJC are distinct. They are distinct, first and foremost, since
they are based on different fundamental principles. The DJC is one possible
substantive version of the MSC that identifies several morally significant facts, but
it is not the only possible one. Due to this fundamental difference, these concep-
tions have also different implications. Most importantly, the MSC condemns actions
because they are not supported by a valid consideration, whereas the DJC some-
times condemns actions even though they are supported by a valid consideration.
Therefore, only the DJC applies to actions concerning which there is a clash of
competing considerations. Accordingly, while avoiding discrimination based on the
MSC does not involve a moral cost, avoiding discrimination based on the DJC does.
As a result, the MSC always reflects an overall conclusion against actions that are
not supported by a valid consideration, while the DJC reflects merely a pro tanto
consideration that is not necessarily decisive.30 The two conceptions thus apply to
actions that are very different: While the MSC applies to actions whose fault is
straightforwardroughly irrationality and more specifically prejudicethe DJC
applies to rational actions whose fault is more complex. Indeed, since the latter
30
For a detailed analysis of these and other implications, see Section 4.
conception applies to actions that are rational, in one sense, it is more difficult
normatively and often also actuallyto prevent these actions. Indeed, due to the
profound differences between the two conceptions, it is misleading to refer to both
of them as conceptions of the same single phenomenon (discrimination). But it
seems that this term is too entrenched and thus all we can do is to clarify that the
common term discrimination covers two distinct types of actions.
Despite the significant differences between these conceptions, they are often
confused or conflated. A general source of confusion is that, particularly in legal
contexts, the terms discrimination and inequality are often used interchange-
ably (Holmes 2005, 1845). This is misleading for several reasons. First, one
plausible conception of discrimination, the MSC, is not necessarily based on a
concern for distributive justice in general and equality in the strict sense in
particular. Second, even the DJC is not based necessarily or solely on a concern for
equality in the strict sense, but rather might include a concern for alternative or
additional distributive considerations such as responsibility.
More specifically, several legal rules contain different elements, some of which
are supported by the MSC, while others are supported by the DJC. One example
is the standard prohibition on direct discrimination. Part of this prohibition is
compatible with the MSC since it forbids discrimination based on grounds (such as
race and sex) that are typically morally insignificant. But another part is compatible
with the DJC since sometimes a forbidden ground is morally significant but
nevertheless involves distributive injustice. The difference between these interpre-
tations is not properly acknowledged when the part that is compatible with the DJC
is considered as a natural extension of the part that is compatible with the MSC.
Another example is the prohibition on indirect discrimination, which is compatible
with the MSC to the extent that its aim is to expose an invalid consideration and
with the DJC to the extent that its aim is to prevent an unfair burden. The same
applies to the principle of accommodation, which is compatible with the DJC to the
extent that it involves a burden in order to prevent distributive injustice, but with
the MSC to the extent that it merely prohibits morally costless prejudices. Finally,
a common defense to the prohibitions on (direct and indirect) discrimination is
compatible with the MSC especially when it requires merely that the allocation of
a benefit is supported by a valid consideration. But it is compatible with the DJC
especially when it requires a valid consideration whose weight exceeds a certain
threshold.
Analyses of the paradigm and law of discrimination are also often inaccurate
with respect to the difference between these different types of discrimination.
According to one claim, all the legal doctrines of discrimination are based on the
same rationale (Moreau 2010, 15360). This claim is inaccurate since it does not
distinguish between two different types of principles of discrimination. One
includes principles which condemn only actions that are not supported by valid
considerations, such as part of the prohibitions on direct and indirect discrimina-
tion. Another includes principles that condemn actions that are supported by valid
considerations, for another reason (such as distributive justice), mainly the doctrine
of accommodation and another part of the prohibitions on direct and indirect
discrimination.
According to another claim, the principle of accommodation is not special in that
it requires persons (typically employers) to bear a cost, since the doctrines of direct
66 Reem Segev
and indirect discrimination also sometimes require a similar cost (Bagenstos 2003,
83944; 8623; Jolls 2001, 65272). This version is misleading, since while one part
of the prohibitions on direct and indirect discrimination involves a moral cost,
another part does not, for example, the common prohibition on taking account of
facts that are morally insignificant, such as (typically) the race of a candidate.
A different claim is that indirect discrimination occurs when someone applies
unjustifiable standards which people of one sex or race find it harder to comply
with than people of another, to the detriment of someone who is a member of the
former sex or race (Gardner 1996, 355, 360, 364). This claim conflates two different
types of wrongs: considering facts that are morally insignificant and producing an
unfair outcome.
According to an additional claim, the fact that an allocation of a benefit is
supported by a valid consideration does not exclude wrongful discrimination but,
to the contrary, makes discrimination worse by shouldering an additional burden
on a person who is already worse off (Hellman 2009, 134). This assertion too
conflates two different wrongs. The moral significance of a fact does rule out one
type of wrong, namely the one that is based on the MSC. But it does not rule out,
and indeed aggravates, another type of wrong, the one that is compatible with the
DJC. Moreover, the above claim is inaccurate since an action that is not supported
by a morally significant fact is less wrongful in one respectalthough it might be
nevertheless overall wrongful for another reason.
According to the opposite claim, there is a substantial difference between, on the
one hand, the prohibitions on direct and indirect discrimination, and, on the other
hand, the requirement to accommodate a person with a disability, since only the
latter involves a cost (Issacharoff and Nelson 2001, 3145). This claim is also
inaccurate since the prohibitions on direct and indirect discrimination apply also to
(some) actions that are supported by morally significant facts and therefore involve
a cost. Therefore, while accommodating a disabled person is different from part of
the prohibitions on direct and indirect discrimination, it is not different from
another part: The requirement of accommodation is not the only doctrine of
discrimination that involves (requires) a cost.
While the MSC and the DJC are distinct, they are compatible, and each of them
is necessary for the justification of a different part of the paradigm of discrimina-
tion. Therefore, a complete theory of discrimination should be comprised of a
combination of these two conceptions. I believe that the proposed conceptions are
jointly exhaustive of the justified part of the paradigm of discrimination. The last
suggestion is especially important in light of the fact that each of these conceptions
(and therefore also the theory that is comprised of both) is based on widely agreed
upon premises. The argument in favor of this suggestion is based primarily on an
evaluation of the specific implications of the combined account, which I provide in
the last part of the paper, and on the following observations.
The proposed combined account seems to me more plausible than an account
that relies on just one conception of discrimination, including an account that
relies on one of the proposed conceptions but not on both. An account that relies
merely on the MSC of discrimination, most notably an account that considers
only the failure to choose the most qualified candidate as wrongful discrimination,
correctly identifies part of the concept of discrimination but misses another: It does
not explain why rational discrimination is sometimes wrongful. An account of
discrimination that relies merely on the DJC is partial since it does not consider
allocations that are not supported by a valid consideration as another form of
wrongful discrimination. Some accounts are even more partial since they reduce
distributive justice to a principle of equality of opportunity (Segall 2012a). One
implication of this single account, which seems to me implausible, is that an action
that is not supported by a valid consideration, but does not involve distributive
injustice, does not constitute wrongful discrimination (an action that is not sup-
ported by a valid consideration might not involve distributive injustice because
the rejected candidate is fully compensated or since another agent makes the
opposite mistake in a way that neutralizes the effects of the first agents action in
terms of an overall conception of distributive justice, for instance, since one agent
prefers whites, while another agent prefers blacks; see Segall 2012a, 945, 978;
Lippert-Rasmussen 2012, 667). It seems that this is a case, indeed a central case,
of wrongful discrimination. According to another claim, this case demonstrates that
what is wrong in discrimination is not distributive, specifically egalitarian, injustice
(Moreau 2010, 172). But this conclusion is too hasty. Another explanation, and a
more plausible one, it seems to me, is that a proper account of discrimination
includes both the DJC and the MSC.
An objection to a combined account of discrimination is that it might involve a
clash between its different aspects and that it lacks one fundamental account that
resolves this clash (Segall 2012a, 8990). I believe that this objection is misguided.
Generally, it is possible to resolve a clash between two aspects of a combined
account in light of their (relative) moral importance (in each type of case), without
another bridging principle (apart from the meta-principle that one principle out-
weighs another since it is more important). More specifically, recall the conclusion
of the discussion of the proposed conceptions. First, when an action that is
supported by a valid consideration involves distributive injustice, it is wrong if the
distributive consideration outweighs the contrary consideration, such as the con-
sideration in favor of the greater benefit, and vice versa. Second, when an action
reflects a distributive consideration, it is not morally arbitrary.
Overall, I believe that the proposed combined account is a plausible account of
discrimination and indeed more plausible than familiar competing accounts. While
an account that includes only one principle might be preferable over a combined
one if other things are equal, it is not necessarily preferable overall. I believe that
a single account of discrimination captures, at most, just one part of the concept of
discrimination and misses another.
4. Implications
I now turn to considering the implications of the combined theory. There are of
course other questions concerning discrimination in addition to the ones I discuss,
but answering the following questions provides, I think, a clear enough picture of
the proposed theory (and suggests the answer to other questions).
4.1. The Paradigm Grounds

An important question is what is morally unique about the paradigm grounds of
discrimination and what is the difference between these and other grounds that are
68 Reem Segev
considered morally innocent and legal or at least less abhorrent, for example, eye
color (as opposed to skin color), intelligence, and friendship or family relation. The
answer to this question is the key to resolving various controversial questions, for
example, whether the denial of the legal status of marriage of gays and lesbians
constitutes wrongful discrimination. A common partial answer notes common
characteristics of the paradigm grounds, such as their relation to personal identity,
the high cost of altering them, their social salience, the fact the people with these
features are typically less well off, often due to negative treatment, and belong to
persistent minorities. But this is not a full answer since it does not explain whether
these characteristics are morally significant, and in what way. This question, of the
uniqueness of the paradigm grounds, poses what is perhaps the main aspect of the
general challenge to the proposed theory of discrimination, namely the worry that
it is too general and therefore too remote from the paradigm and law of discrimi-
nation, mainly since it does not attach enough significance to the paradigm
grounds. I believe, however, that the combined theory is plausible in this respect.
Generally, it implies that while the paradigm grounds are not significant in
themselves, they are typically epistemically and instrumentally (very) important.
The MSC implies that a paradigm ground is not a constitutive feature of
wrongful discrimination: It is neither a necessary condition since a non-paradigm
ground might be morally insignificant, for example, eye color is often morally
insignificant just as skin color. It is not a sufficient condition because a paradigm
ground might be morally significant. However, the paradigm grounds are special
in other respects. One is conceptual: The concept of discrimination is associated
with that of moral insignificance mainly when the insignificance is that of a
paradigm ground. Another respect in which the paradigm grounds are special is
epistemic: These grounds are typically morally insignificant with respect to
employment and education and therefore a paradigm ground is evidence for
arbitrariness. Moreover, the tendency to take account of these grounds when they
are morally insignificant is especially prevalent, compared to other morally insig-
nificant facts (Schauer 1997, 297). Finally, the paradigm grounds have instrumental
moral importance, since wrongful discrimination based on these grounds often
leads to especially serious negative effects on individual well-being, because it often
involves a serious negative emotion, in light of the common relation of these
grounds to personal identity,31 and because such discrimination is prevalent. In
addition, discrimination based on these grounds often leads to unjustified behavior
by others, for example, it might encourage racist actions. Therefore, the claim that
racial discrimination is (or should be legally) prohibited not because it is a specific
instance of a general moral problem of arbitrariness but because it is worse than the
usual arbitrariness (Bagenstos 2003, 848) is misleading: Racial discrimination could
be both a specific instance of a general problem and an especially serious instance
of this problem.
The DJC too implies that a paradigm ground is neither a necessary nor a
sufficient condition of wrongful discrimination: The basic distributive reason to
benefit a person is based on her (absolute or relative) level of well-being rather than
her race or sex, for instance. However, the paradigm grounds are important also
31
This is one respect in which the subjective humiliation that is often involved in discrimi-
nation is morally significant within the proposed theory.
within this conception for reasons that are similar to those discussed regarding the
MSC. One is conceptual: The concept of discrimination is associated with that of
distributive justice mainly when the injustice is to a person who is denied a benefit
based on a paradigm ground. Another is epistemic: Discrimination based on the
paradigm grounds is an indication of distributive injustice to the extent that there
is a correlation between, for example, race and poverty. Finally, the paradigm
grounds have instrumental moral significance: An allocation of a benefit in light of
a paradigm ground often involves an especially serious distributive injustice due
to the relation of such grounds to personal identity and to the fact that such
discrimination is especially prevalent. However, discrimination based on a para-
digm ground is not necessarily the only or even the most serious form of
distributive injustice. An allocation based on intelligence, for example, might be
another serious form of distributive injustice (Nagel 1972, 357), although one that
is not typically associated with the concept of discrimination.
One way to consider whether the proposed combined theory is exhaustive is to
see whether it assigns the paradigm grounds the central role that they seem to
deserve within a theory of discrimination. I think that the proposed theory passes
this test. While it does not consider the paradigm grounds as necessary or sufficient
for wrongful discrimination, it does consider them as a, indeed the, central case of
discrimination, particularly due to their epistemic and instrumental importance.
Typically, an action that is based on a paradigm ground is doubly wrong (as
discrimination), since it is not supported by a morally significant fact and involves
distributive injustice. Moreover, discrimination based on a paradigm ground is
typically especially wrongful, both because it is especially wrongful based on each
of the two conceptions and because it is doubly wrong.
I think that this is the most plausible account of the uniqueness of the paradigm
grounds of discrimination. A test case is one in which none of the proposed
conceptions applies to a paradigm ground, since it is morally significant and
allocating a benefit in light of it does not involve distributive injustice. In this case,
the proposed theory implies that the allocation does not constitute wrongful
discrimination. Such a case might be rare, since an allocation in light of a paradigm
ground often leads to emotional and indirect negative effects, but it is possible. An
example is allocating a benefit to a (relatively) worse off white candidate rather
than a (relatively) better off black candidate, when being white is for some reason
a pertinent qualification. It seems to me that such an action is indeed not wrong (as
discrimination).
The contrary view, according to which the paradigm grounds are constitutive of
wrongful discrimination, so that an allocation based on them is necessarily and
therefore always wrong, seems to me implausible. This is because every important
feature of these grounds is important only contingently rather than necessarily. For
example, a paradigm ground is typically, but not necessarily, morally insignificant
and typically, but not necessarily, involves distributive injustice.
A related question is whether a legal prohibition on discrimination should be
limited to the standard list of specific forbidden grounds, with its emphasis on the
paradigm grounds, or include other grounds as well, for example, eye color or
excess weight. Positive law is often unclear in this respect. While the paradigm
grounds are a central part of the standard list of forbidden grounds, this list typically
includes other grounds as well, for example, disability, age, and pregnancy, and it
70 Reem Segev
is usually unclear if even this expanded list is exhaustive.32 The most accurate way
to reflect the MSC as well as the DJC in this regard is through a general principle
that prohibits taking account of a morally insignificant fact or acting in a way that
leads to distributive injustice, respectively (without specification), since an exhaus-
tive list of specific forbidden grounds is presumably too complex and costly (mainly
because the significance of a fact depends on the context). However, there are
contrary considerations in favor of a list of specific grounds, perhaps even an
exhaustive one, even if such a list is not completely accurate. First, the cost involved
in establishing and enforcing the law is a consideration in favor of limiting it to the
most serious forms of discrimination, which seems to be those based on the
paradigm grounds. Second, a specific and exhaustive list is clearer than a general
principle and therefore reduces the danger of mistake and bias and enhances the
guiding function of the law. These considerations might outweigh the consideration
in favor of an accurate reflection of the proposed theory and thus justify the focus
of prevailing law on the paradigm grounds.
4.2. Personal vs. Collective

A related question is whether discrimination is fundamentally personal or collec-
tive, namely whether a discriminatory ground necessarily refers to a socially salient
group. Descriptively, it is clear that the paradigm of discrimination focuses on such
groups (Altman 2011; Hogg 2006, 55.10(e)). What is unclear is whether the
fundamental moral fault of discrimination is necessarily tied to such groups or
rather the significance of these groups is merely derivative: epistemic (an indication
of the situation of an individual) or instrumental (affecting the well-being of an
individual), since the identity of a person is often affected by her relations with
others (compare Fiss 1976, 151). Both the MSC and the DJC are individualistic in
the sense that they do not necessarily assign an intrinsic significance to groups.
According to possible and plausible versions of these conceptions, the status and
history of groups matter only to the extent that they affect current (for instance,
distributive) concerns, namely only instrumentally. Clearly, this is compatible with
acknowledging the fact that this effect is often very profound and common. This is
one sense in which these conceptions avoid a controversial assumption, namely the
assumption that groups (and not only individuals) have independent moral stand-
ing. However, both conceptions assign an important, albeit derivative, role to
groups, to the extent that they assign such a role to the paradigm grounds of
discrimination in light of their social salience and thus epistemic or instrumental
significance.
4.3. The Status of Prohibitions and Defenses

An additional question concerns the status of the fundamental moral (as opposed
to the legal) prohibition on discrimination, namely whether it is a pro tanto
32
For an exception, in which the enumerated grounds are explicitly not exhaustive but rather
there is residuary category of an analogous ground, see Canadian Charter of Rights &
Freedoms 15(1); Andrews v. Law Society of British Columbia [1989] 1 S.C.R. 143.
consideration, which could be outweighed by a clashing consideration and accord-

ingly subject to a real defense that provides an exception, or an overall (all-things-
considered) conclusion, which is necessarily decisive and accordingly subject only to
a pseudo-defense that merely clarifies the prohibition.
The status of the prohibition on discrimination that is based on the MSC is that
of an overall conclusion. The prohibition of actions that are not supported by a
morally significant fact, and especially on actions that are based on an invalid
consideration, is not subject to an exception since this is never justified (Shiffrin
2010, 140). It is compatible merely with a pseudo-defense which only clarifies that
a valid consideration is not within the bounds of such a prohibition.
On the other hand, the status of the prohibition on discrimination that is based
on the DJC is that of a pro tanto consideration which is not necessarily (and
therefore always) an overall conclusion. This is so since the distributive considera-
tion in favor of the prohibition might clash with a contrary valid consideration, for
example, in favor of preferring the more qualified but better off candidate.
Therefore, this prohibition should be subject to a (real) defense that provides an
exception when the force of the consideration against such a prohibition is stronger
than that of the clashing distributive consideration. This defense should not apply
in every case in which abiding by the prohibition involves a (moral) cost, but only
when this cost is beyond a certain minimal threshold.
4.4. Rational Discrimination

An important question is whether rational discrimination is (sometimes) wrong. By
rational discrimination I mean an allocation (particularly a denial) of a benefit
based on a paradigm ground that is supported by a valid (pro tanto) consideration,
mainly relating to the well-being of a person. The most obvious example is the
preference for the most qualified candidate. More specifically, there are two main
salient categories of rational discrimination. The first includes actions that take
account of personal preferences (of the agent or of another) that are mistaken in the
sense that they are not based on a valid reason, for example, a preference of an
employer regarding the race of an employee, or of an employee regarding the race
of a colleague, or of a customer regarding the race of a worker or of another
customer. Taking account of such unfounded but real preferences is sometimes
supported by a morally valid consideration, for example, if the preference affects
work production. Another kind of rational discrimination is statistical discrimi-
nation, namely (roughly) discrimination in light of a paradigm ground based on
statistical evidence. It is difficult to explain the common view that statistical
probability (evidence) is conceptually unique, but there is a common intuition,
which is sometimes echoed in the law, including in the context of discrimination,
that specific paradigms of statistical probability are unique, for example, racial
profiling. In order to focus on what is unique about statistical discrimination, I
assume that the relevant evidence is statistically valid and that the cost of further
inquiry exceeds its contribution (compare Lippert-Rasmussen 2007, 38994).
Rational discrimination in this sense might be formally covered by all of the
common legal doctrines: direct discrimination, indirect discrimination, and accom-
modation. However, the laws position is typically unclear and not uniform in this
regard: On the one hand, the common defense of lack of sufficient qualification
72 Reem Segev
allows rational discrimination. On the other hand, there are common legal rules
that specifically disallow certain forms of rational discrimination, for example,
prohibitions on discrimination that takes account of discriminatory personal
preferences and on statistical discrimination and the principle of accommodation
(see section 2).
Rational discrimination is often not wrongful according to the MSC. Consider,
first, the category of a mistaken preference. The key distinction in this regard,
according to the MSC, is between a preference that affects individual well-being
and a preference that does not. The former is morally significant and therefore
taking it into account does not constitute wrongful discrimination. The latter is not
morally significant (regarding the action of allocating a benefit) and therefore an
action that is based on it does constitute wrongful discrimination. This analysis
assumes that a preference is not a constitutive aspect of individual well-being, and
therefore its frustration does not necessarily involve a cost in terms of well-being.
Rather, a preference is sometimes of instrumental value due to its effect on (a
constitutive aspect of) individual well-being, particularly the mental state of the
relevant person. The last part of this assumption seems to be especially plausible
when a preference of one person affects the well-being of another, for example,
when a preference of a customer affects the profit and accordingly the well-being
of a shopkeeper. The claim that we should take a preference that affects individual
well-being into account is merely a special case of the more general idea that the
wrongful conduct of one person sometimes affects what another should do. For
example, we should sometimes save people who are in danger due to the wrongful
behavior of others or surrender to wrongful threats.
According to a contrary view, a prohibition on discrimination necessarily
involves a cost, since it frustrates a preference to discriminate as a means to a
certain goal (Kelman 2001, 8525; Bagenstos 2003, 899). However, this argument
conflates the distinction between a preference that affects individual well-being
(and therefore is morally significant) and a preference that does not (and is not
morally significant). A more specific claim is that while a requirement of accom-
modation involves a frustration of a legitimate preference and therefore a real,
objective and public cost, a prohibition on direct discrimination involves a
frustration of an illegitimate preference and therefore a cost that is private,
subjective, and arguably illegitimate (Kelman 2001, 8525). But this claim
involves an additional mistake, since a preference could affect individual well-
being and thus be morally significant even if it is private or subjective in some
sense (for example, even if it is idiosyncratic).
A similar analysis applies to statistical discrimination. Probability regarding a
morally significant fact is itself morally significant and this applies also to statistical
probability (even if it is unique in other respects). As a result, according to the MSC,
statistical discrimination is not wrong. Several common objections to statistical
discrimination are unpersuasive because they ignore the moral significance of
probability, including statistical probability, regarding morally significant facts.
According to one objection, statistical discrimination is wrong since it treats a
person not in light of who she is, but in light of the group she belongs to. But this
is inaccurate. Such an action is based on who the relevant person is. True, it often
takes account of only part of the relevant information regarding this person (part
of her relevant characteristics). And obviously if it is (morally) cost-free to acquire
additional relevant information, this should be done. But when this is costly, it
might outweigh the competing consideration in favor of further inquiry, making a
decision based on partial information justified. According to another claim, statis-
tical probability that is based on a paradigm ground of discrimination involves
bigotry and is therefore wrong in the context of employment, although a suffi-
ciently strong opposing consideration might justify it, for example, in the context
of fighting crime (Segall 2012b, 4953). But it is unclear in what sense taking
account of a morally significant fact, when this does not involve distributive
injustice, is (even pro tanto) wrong. Moreover, even if taking account of statistical
probability is pro tanto wrong, it is implausible to assume that this consideration
is always decisive in the context of employment.
The implication of the DJC is different in this regard. This conception implies that
rational discrimination is sometimes but not always wrong. It is wrong, even when
not taking account of a mistaken preference involves a burden in terms of
individual well-being, if there is a sufficiently weighty distributive consideration
against doing so, particularly when this burdens a person who is generally worse
off. Rational discrimination is not wrong, according to this conception, when it
places a burden on a person who is generally better off, for example, an unqualified
but very well off person. For example, statistical discrimination is not wrong,
according to the DJC, when a man is required to pay a higher car insurance
premium than a woman who is generally worse off.
The combined theory thus implies that rational discrimination is not wrongful (as
discrimination) when it takes account of a preference that, while perhaps deficient
in some sense, is morally significant in a way that does not involve distributive
injustice. Examples include statistical discrimination that benefits a worse off
person, for example, a worse off woman over a better off man regarding a car
insurance premium, and reverse discrimination. However, rational discrimination
is pro tanto wrong, according to the combined theory, when it involves distributive
injustice, although not as wrongful as discrimination that is both not supported by
a valid consideration and leads to distributive injustice. This entailment of the
combined theory seems to me plausible too.
4.5. Separate but Equal

Another well-known question is whether a practice of separate but equal, mainly
physical separation in education or transportation based on race, is a form of
wrongful discrimination. Seemingly, there is a clear and uniform conventional and
legal prohibition on equal separation. A common view, and a corresponding legal
rule, considers this practice as wrong, indeed as inherently (necessarily) wrong.33
But in fact the common view and the law are not uniform with respect to this
practice. Often, the practice of separate but equal is considered morally innocent
and legal (although not under this description). This is clearly the case regarding
separation that is not based on a paradigm ground, for example, separation of
pupils to classes in order to reduce the number of pupils in each class. But it is also
the case with respect to separation based on a paradigm ground, for example,
33
Following Brown v. Board of Education 347 U.S. 483, 495 (1954).
74 Reem Segev
separate religious schools and separate sports groups and restrooms for men and
women. The question is thus why and accordingly when is a practice of separate
but equal wrong (when it is wrong).
The MSC considers a practice of separate but equal as wrongful discrimination
when there is no valid reason for the separation. This is typically the case with
respect to the paradigm cases of separate but equal (separation based on race in
education or transportation). However, this conception does not consider a practice
of separate but equal as wrongful (discrimination) when there is a good reason for
the separation. This might sometimes be the case, for instance, regarding separation
aimed at advancing a distinct way of living, including through education.
The DJC implies that the practice of separate but equal constitutes wrongful
discrimination when it involves distributive injustice. This is again typically the case
with respect to the paradigm cases of separate but equal in which it is reasonable to
assume that the quality of the service (for example, education) is not the same on both
sides of the separation. It is also often the case when the separation generates a
negative emotional response, even if the quality of the service (in the strict sense) is
the same. This might be so particularly when there is no apparent good reason for
the separation, since then the implication is that the source of the separation is a view
that considers a person with the relevant characteristic as inferior in some sense. This
might be the case, for example, with regard to racial separation in transportation. It
is also the case when the separation generates an indirect detrimental effect, such as
inducement of another kind of wrongful (discriminatory) practice. However, the DJC
does not consider the practice of separate but equal as wrongful (discrimination)
when it does not involve distributive injustice. This might be the case, for example,
again concerning a distinct method of education which does not imply a sense of
superiority (and accordingly inferiority).
Thus, according to the combined theory, a practice of separate but equal is wrong
either because (and when) the separation is not supported by a valid consideration
or since (when) it involves distributive injusticeor both. Indeed, the paradigm of
separate but equal cases (racial separation in education or transportation) often
involves both vices. In this kind of case, there is typically no good reason for the
separation and often the quality of the service is not in fact equal in a way that
generates distributive injustice. However, according to the proposed theory, there is
nothing wrong with equal separation when it is supported by a valid consideration
and does not involve distributive injustice. This is ostensibly a radical conclusion
in light of the common condemnation of the practice of separate but equal as
necessarily wrong, but it is in fact compatible with the common view and practice
allowing equal separation in various contexts without classifying it as such. This is
less common regarding the paradigm grounds of discrimination, both since a good
reason for separation based on these grounds is relatively uncommon and because
such a separation typically involves distributive injustice, at least due to its
emotional and indirect effect. But when this is not the case, I submit that this
practice is indeed not wrongful.
4.6. Reverse Discrimination

Finally, the last question is whether reverse discrimination (affirmative action) is
(sometimes) wrong and what its relation to standard discrimination is. A related
question is the normative relation between (standard) discrimination and affirma-

tive action, namely, whether the fundamental principle underlying the paradigm of
standard discrimination also underlies the paradigm of reverse discrimination.
According to the proposed combined theory, the same fundamental principles
underlie both standard discrimination and reverse discrimination. The MSC implies
that reverse discrimination is justified when there is a valid reason in favor of it.
This includes an action aimed at correcting a bias that is based on a paradigm
ground, for example, a tendency to underestimate the qualifications of black
candidates or women, by requiring employers to assign priority to such candidates
(if this would lead to a more accurate assessment). This includes also a valid
consideration of distributive justice. Indeed, the DJC also applies the same funda-
mental principle to both standard and reverse discrimination, namely reverse
discrimination is not (even pro tanto) wrong when it leads to a just distributive
outcome. According to the proposed account, affirmative action might be justified
in order to correct the current distributive pattern regardless of how it came about
and specifically regardless of whether it came about as a result of past discrimi-
nation. In other words, while discrimination typically prefers the better off over the
worse off (and is therefore wrong, other things being equal), reverse discrimination
typically prefers the worse off over the better off (and is therefore justified, other
things being equal).
This implication of the combined theory seems to me a plausible explanation of
the relation between standard discrimination and reverse discrimination. According
to the proposed theory, the paradigm of reverse discrimination is justified as an
implication of the theory of standard discrimination, rather than as an exception to
it (as it is sometimes conceived), since when there is a (decisive) distributive
consideration in favor of an action, it is not wrong (as discrimination) in light of
both the MSC and the DJC.
An example is a case in South Africa in which some members of parliament
received a higher pension payment than others though the overall pension rights
of the second group were better. The ruling that this is legal (and specifically that
affirmative action does not constitute discrimination),34 is compatible with the
proposed account, since there was a valid consideration in favor of the action and
it did not involve distributive injustice. However, the reasoning of the court is
different than mine, for example, in that the condition that affirmative action must
advance persons who were the victims of (past) discrimination35 is not required
according to the proposed theory, which considers whether a person is worse off
regardless of the cause for her condition.
5. Conclusion
I have argued that a theory that is comprised of the MSC and the DJC provides a
plausible account of discrimination. This account does not consider discrimination
as a fundamental and unified category, but rather as one that is derived from two
more basic notionsmoral significance and distributive justice.
34
Minister of Finance v. Van Heerden (2004) (CC 63/03) (South African Constitutional Court)
(hereinafter: Van Heerden).
35
Van Heerden, Section 37.
76 Reem Segev
The question of whether these features of the proposed theory support or

undermine it depends on general views regarding the nature of moral principles.
A central objection to the proposed account is that it is too general and too remote
from the paradigm (and law) of discrimination since it does not consider it as a
fundamental and unified concept and does not see the paradigm grounds of
discrimination as constitutive of it. Indeed, it might be argued that the proposed
theory does not justify the paradigm of discrimination but rather explains the
notion of discrimination away. I believe, however, that the general nature of the
proposed account and specifically the fact that it considers discrimination as a
non-basic and non-unified category is an advantage rather than a weakness. In part,
this view depends on the position, that I do not defend directly in this paper, that
fundamental morality is comprised of relatively general principles. But it is
important to recall several more specific points in this context. First, I do not think
that it is plausible to consider the paradigm of discrimination as a basic moral
category (see Section 3). Second, I do not think that it is reasonable to justify the
entire paradigm of discrimination based on a single idea (see Section 1). Third, the
proposed theory rests on widely accepted premises and yet justifies a central part
of the paradigm and law of discrimination (see Sections 3 and 4)and it is
implausible to expect a full justification (see Section 1). Finally, the crucial question
is comparative, namely whether an alternative account, especially one that is more
specific in the sense that it explains the wrongness of discrimination based on more
specific ideas, is equally compelling from a normative perspective. It seems to me
that the answer is negative (see Section 3).
A related objection alludes to the concern that an account of discrimination that
relies on the notions of moral significance and distributive justice is more complex
and controversial than the phenomenon that it purports to explain and than more
specific accounts. While the proposed account locates the problem of discrimination
within familiar notions, it inherits the controversy regarding these notions. This
concern is misguided, it seems to me. First, even if a less controversial account
would have been better (in one respect and overall if other things are equal), it does
not follow that there is a reason to believe that it exists and, accordingly, that the
proposed account is wrong. Second, I do not think that the proposed account is in
fact more controversial than the paradigm of discrimination and alternative
accounts. Indeed, the paradigm of discrimination is itself controversial to a sig-
nificant extent, for example, with regard to rational discrimination and reverse
discrimination (see Sections 2 and 4), and more specific accounts rely on contro-
versial premises (see Section 3), whereas the proposed account rests on widely
accepted premises. In this respect, the proposed account goes beyond locating the
problem of discrimination towards an answer to it that is compatible with many
conceptions of moral significance and distributive justice.
The proposed theory also provides a basis for a normative interpretation of
common ambiguous or vague legal standards, while requiring a revision of other
rules. Specifically, it implies that the view that a consideration of a paradigm
ground of discrimination (such as race) is necessarily illegal discrimination, regard-
less of its outcome and aim, is misguided. When such an action is supported by a
valid consideration and does not involve distributive injustice, as seems to be the
case, for example, regarding an action aimed at enhancing diversity in education,
it does not constitute wrongful discrimination.
The Hebrew University of Jerusalem

Faculty of Law
Mount Scopus, Jerusalem, Israel
E-mail: reem.segev@mail.huji.ac.il
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Making Sense of Discrimination

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Ratio Juris. Vol. 27 No. 1 March 2014 (4778)

Making Sense of Discrimination

Abstract. Discrimination is a central moral and legal concept. However, it is also a

with (at least) a substantial part of the paradigm of discrimination, so that it

2. The Paradigm and Law of Discrimination

bona fide occupational qualification (or requirement or justification),15

discrimination is the most fundamental standard in this context. According to this

3.1. Moral Significance

(motivating) reason is a good one (namely, it is a reason as opposed to a mistaken

nevertheless true, I believe, that one common denominator of a significant number

3.2. Distributive Justice

important, constitutive feature of (one type of) wrongful discriminationthe focus

3.3. The Combined Theory

4.1. The Paradigm Grounds

4.2. Personal vs. Collective

4.3. The Status of Prohibitions and Defenses

consideration, which could be outweighed by a clashing consideration and accord-

4.4. Rational Discrimination

4.5. Separate but Equal

4.6. Reverse Discrimination

question is the normative relation between (standard) discrimination and affirma-

The question of whether these features of the proposed theory support or

The Hebrew University of Jerusalem

Nagel, Thomas. 1972. Equal Treatment and Compensatory Discrimination. Philoso-

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