Discrimination and Subordination
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There is something particularly compelling about the idea that discrimination is wrong when and because it unjustly subordinates some people to others. The kinds of discrimination that usually give rise to the greatest moral indignation involve the creation or perpetuation of different classes of people, with some having a superior status and others an inferior one, in circumstances where we think that everyone ought to have an equal status. Consider, for instance, the Jim Crow laws, which turned African Americans into second-class citizens; or dress codes for waitresses or female retail employees that mark them out as sexual objects, lacking the full and independent agency that we ascribe to men. Moreover, the idea that unjust subordination can help to explain the wrongness of certain forms of discrimination does not just have a hold on our moral imaginations. It is also deeply rooted in the law. Both the United States’ Fourteenth Amendment and the constitutional equality rights in Section 15 of the Canadian Charter of Rights and Freedoms have been understood—by courts, and also by academics—as prohibiting government policies that subordinate people based on certain traits.1 And of course, when private sector anti-discrimination law was first developed in these two countries in the 1960s and 1970s, it was treated as a form of quasi-criminal law that aimed to eliminate acts of prejudicial subordination, acts that deliberately denied certain privileges or benefits to members of certain social groups on the grounds that these groups were less worthy than others. But what exactly does unjust subordination involve? And how do discriminatory acts and policies work to subordinate certain social groups and to sustain their subordination? It is the aim of this chapter to answer these questions. Most of the legal scholars who analyze discrimination in terms of its contribution to subordination invoke a relatively under-specified, intuitive idea of subordination. For instance, when Owen Fiss first urged that the US Equal Protection Clause was best interpreted not as preventing arbitrary classifications but as eliminating unfair subordination, he suggested that subordination was a “status harm” that involved perpetuating the lower social position of persistently disadvantaged social groups. But it was not his aim to develop a general account of what that status harm involved. More recently, Reva Siegel and Joel Balkin have examined the ways in which courts, in cases of discrimination, are motivated by concerns with “social stratification” and “the secondary social status of historically oppressed groups.” But they do not explain in detail what “social stratification” involves. Their interest is largely in charting how concerns about social stratification motivate judges to adopt particular legal doctrines and to decide certain cases in certain ways. My aim in this chapter is different. It is to develop a philosophical account of subordination, one that can help us understand some of the ways in which different forms of discrimination subordinate people, and the reasons why they might be wrong, in virtue of contributing to such subordination. I will not try to specify a set of individually necessary and jointly sufficient conditions for social subordination. But I shall lay out in some detail four conditions that seem to be satisfied in most cases where the subordination of a certain group persists across different social contexts for some extended period of time and seems unjust. I shall do this in Section 3 of the chapter. Section 4 will consider how discrimination contributes to subordination, so understood. The scholars of discrimination law who come closest to offering a philosophical analysis of subordination and of how discrimination subordinates are expressivists Deborah Hellman, Elizabeth Anderson, and Richard Pildes. They have argued that an act is wrongfully discriminatory when it subordinates a person to others in the sense that the act demeans her, or sends the message that she is of less value than others. I shall consider Hellman’s account in Section 2 of the chapter. While this account is extremely helpful in drawing our attention to the ways in which discriminatory acts send messages about the inferior status of certain groups, I shall suggest that, at least in its current form, the account is too individualistic. It focuses too much on the individual power dynamic between the discriminator and the discriminatee, when in fact we need to look at the relative amounts of power possessed by the different social groups to which these people belong. I shall also argue that expressivism offers us too narrow an understanding of sub- ordination. Subordination is not only a function of the social messages sent by particular acts or policies. Rather, it is kept in place by a variety of effects that discriminatory acts have on different social groups, such as perpetuating differences in power and authority between them and rendering certain social groups or their needs invisible in certain contexts.
Source Publication
Oxford Studies in Political Philosophy
Source Editors/Authors
David Sobel, Peter Vallentyne, Steven Wall
Publication Date
2019
Volume Number
5
Recommended Citation
Moreau, Sophia, "Discrimination and Subordination" (2019). Faculty Chapters. 1095.
https://gretchen.law.nyu.edu/fac-chapt/1095
