Given the principle of equal citizenship, discrimination in the sense of the denial of civil rights is an injustice that denies certain citizens the rights to which they are entitled. But it is not obvious that the principle entails that discrimination in the sense of differential treatment is unjust, even if the differential treatment disadvantages persons based on their race, sex, or another paradigmatic civil rights category. The common view is that such differential treatment is (at least prima facie) an injustice that violates the basic rights of the individual. In other words, the view is that it is a civil right to not be treated disadvantageously on account of one's race or sex.
An argument for the soundness of the common view cannot simply invoke existing laws that ban discrimination based on race, sex, and similar categories. The point of the common view is that the injustice of racial and gender discrimination explains why there ought to be those laws. What is required is an account that shows why such discrimination (staying with the two paradigm categories of race and sex for the sake of simplicity) is an injustice.
There are two main approaches to providing an account of the injustice of discrimination based on race and sex. The first is “individualistic” in that it seeks to explain the injustice in a way that abstracts from the broader social and political context in which the differential treatment occurs. The second is “systemic” in that it seeks to explain the injustice in a way that links the differential treatment to social patterns that reduce, or threaten to reduce, the members of certain groups to second-class citizenship.
3.2.1 Individualistic Accounts
Kahlenberg asserts the popular view that race discrimination is unjust because it treats a person on the basis of a characteristic that is immutable or beyond her control (1996: 54-55). But Boxill rejects such a view, arguing that there are many instances in which it is justifiable to treat persons based on features that are beyond their control. (1992: 12-17) Denying blind people a driver's license or persons with little athletic ability a place on the basketball team is not an injustice to such individuals. Moreover, Boxill notes that, if scientists developed a drug that could change a person's skin color, it would still be unjust to discriminate against people because of their skin color. (16)
Flew argues that racism is unjust because it treats differently persons who “are in all relevant respects the same.” (1990: 63 -- emphasis in original). The defining characteristics of a race “are strictly superficial and properly irrelevant to all, or almost all, questions of social status and employability.” (63-64) But if ‘relevant’ means ‘rationally related’, then it does not appear to be a requirement of justice that a person always treat others only on the basis of relevant characteristics.(cf. Gardner, 1998: 168) The idea that it is such a requirement rests on the false premise that all morally bad treatment is a violation of justice and rights. If I give a waiter a poor tip because he is not a fan of my favorite sports team, then I have behaved badly but have not violated the waiter's rights or committed an injustice against him. And it is unclear, on Flew's account, why giving a poor tip because of a waiter's race is any different than doing so because of his preferences in sports.
Often people will insist that the injustice of racial or sex discrimination stems from the connection between those forms of discrimination and the reliance on stereotypes. It is not just that race is irrelevant but that those who act on race-based grounds are using inaccurate stereotypes instead of treating a person “as an individual,” as the phrase goes. However, if “being treated as an individual” means that others must take into account all of the potentially relevant information about the person in their behavior toward her, then there is no plausibility to the claim that anyone has a right to such treatment. Life's scarcity of time and resources undermine the idea that there is such a right.
Moreover, in some cases, stereotypical beliefs reflect reliable generalizations about a group. The term ‘statistical discrimination’ refers to the use of such reliable generalizations. Consider the case of a pregnant job applicant: as a statistical matter, there is a higher antecedent likelihood that she will take more sick days than a nonpregnant applicant during the first year of employment. Yet, an employer who relies on statistical discrimination in excluding the pregnant applicant is acting illegally under the Pregnancy Discrimination Act. The act was passed because many people quite reasonably thought that it was unjust for a pregnant applicant to be treated in that way. But if the treatment is unjust, then one cannot explain why that is so by invoking the unreliability of the generalization on which the treatment is based.
Garcia (1996) provides an account of racial discrimination that loosens the link between it and injustice, but still preserves some connection. On his account, such discrimination against others expresses a character defect, viz., the failure to care enough, or in the right way, for their interests. Accordingly, such discrimination (and, by extension, sex discrimination and other forms as well) is a matter of what is “in the heart” of the racist individual: “racially focused ill-will or disregard (including disrespect).” (10) This echoes the claim made by Gunnar Myrdal in his classic work, An American Dilemma, that “the American Negro problem is a problem in the heart of Americans.”(1944: lxxi)
Garcia's account weakens the link between racial discrimination and injustice because not every act expressing racial ill-will or disregard will be an injustice. Garcia writes that racial discrimination against a person “will often offend against justice,” but he does not argue that it always so offends. (10) He points out that discrimination against a person based on race may amount to a failure of benevolence, rather than a violation of rights. For example, racial disregard may lead a person to refuse to contribute to a charity organization that works with inner-city youth. In such a case, the person has failed to show benevolence for morally discreditable reasons, and so has behaved badly. But no injustice has been committed.
On the other hand racial ill-will is often expressed in violations of the rights of persons: hate crimes that harm the property or person of an individual on account of race; efforts to prevent members of certain racial groups from voting; charging racial minorities higher prices for the same product than the prices charged to similarly situated whites; denying persons equality of opportunity in the job and housing markets on account of their race. Such actions would count as injustices, not simply failures of benevolence. Thus, Garcia's approach preserves some link between discrimination and injustice, but it is much more attenuated than the link posited by the popular view that disadvantageous treatment on the basis of race is ipso facto an injustice (at least prima facie) to the person so treated.