A misconception holds sway over how many people think of the principle that it is wrong to discriminate on the basis of personal characteristics like race and sex. The misconception is that the principle applies only to the lucky winners of a reverse popularity contest: only the unpopular get equal protection.
You can see this misconception at work in a recent post on the New York Times’s philosophical blog, “The Stone,” by a philosophy professor named John Corvino. Without getting into the details, Corvino essentially argues that LGBTs should be protected by anti-discrimination laws only if they are sufficiently analogous to African Americans, and they are not, so that they should not receive such protection. Even if being LGBT is an immutable trait, he says, that alone cannot justify granting anti-discrimination protections, because we generally permit discrimination on the basis of other immutable traits. For example, if a photographer does not like children, he can refuse to photograph a child’s birthday party without being accused of “discrimination.”
Instead of immutability, Corvino claims the key factor justifying such protection is that a group suffers from sufficiently systematic discrimination both historically and in the present. Based on that factor, Corvino concludes that LGBTs are currently just too darned popular to deserve protection from discrimination: “To treat the lesbian couple’s situation as identical—and thus as obviously deserving of the same legal remedy—is to minimize our racist past and exaggerate L.G.B.T.-rights opponents’ current strength.”
Putting aside the question of whether LGBTs are really so popular, it is puzzling that Corvino fails to address another obvious, often-cited analogue between LGBTs and African Americans: being LGBT or an African American generally do not affect one’s ability to contribute to society. This omission runs counter to the approach taken in anti-discrimination law, where that factor is often treated as critical. In particular, civil rights laws usually apply much more rigorously to discrimination on the basis of classifications that have two distinguishing qualities: there is a history of discrimination on the basis of that classification, and that classification does not affect one’s ability to contribute to society.
In contrast, courts generally think that “[i]mmutability and [current] lack of political power are not strictly necessary factors to identify a suspect class” under the Equal Protection Clause. Windsor v. U.S., 699 F. 3d 169, 181 (2nd Cir. 2012). Likewise, no one seems to think that being politically powerful enough to get a civil rights law passed should disqualify the law’s beneficiaries from its protections.
Though Corvino is arguing from the right, a variation of the same mistake can be found in the claims of some on the left that it is impossible for a members of a less-powerful group to unjustly discriminate against a more-powerful social group. Watered down a bit, the argument is correct in the sense that less-powerful groups usually lack the means to carry out whatever prejudices they have, and any discrimination they do commit is less likely to build on and reinforce similar practices; any harm is likely to be de minimis. The argument is also correct in that most likely, the bulk of the so-called “reverse discrimination” is reasonably aimed at trying to remedy past discrimination while doing the least amount of collateral damage. Reverse discrimination is a very rare bird that happens to be the subject of countless myths and legends.
But rarity is not the same thing as impossibility. The left’s "impossibility" argument ignores the same key factor for granting protections that Corvino also overlooks: the ability to contribute to society regardless of whether one has the personal trait in question. One does not have to be a member of the out-group to suffer from unfair judgment on the basis of such personal traits. As such, reverse discrimination is a real (though rare) possibility.
Indeed, it is striking that no one on the left takes the next logical step of saying that we should amend civil rights statutes to permit discrimination against more-powerful groups under laws like Title VII of the Civil Rights Act of 1964. As written, Title VII prohibits employment discrimination on the basis of “race, color, religion, sex, or national origin.” Maybe it should instead prohibit discrimination only against non-white people, non-Christian people, non-male people, and non–native born people? And yet no one draws that conclusion. That silence is telling.
Dan Johnson is a lawyer in Chicago. His practice focuses on commercial litigation, and he has worked on a wide variety of pro bono matters.
So then should the photographer be allowed to refuse to work children’s birthday parties or not? If not, surely the reason is not because children are not able to contribute as much to society as adults! If that reason is permissible then could the photographer not also decline to work events for people below a certain IQ, or with physical disabilities, or above a certain age, or those who for some reason are unable to procreate?
No, the photographer doesn’t have to work at the birthday party, and yes, it’s because children really are different from adults in terms of how annoying they are, which is a facet of their ability to contribute to society. When I say “one’s ability to contribute to society,” I’m using that phrase as a placeholder for all the specific, concrete situations where a trait may or may not affect one’s ability to fulfill a certain role in a relationship. For example, insofar as children actually tend to be annoying, that would undermine their ability to be good customers for a event photographer, such that the photographer can refuse to photograph childrens’ birthday parties without committing unjust discrimination. Regarding the other categories (IQ, etc.), I don’t see how those traits would generally make a person a bad customer for an event photographer, so that discriminating on those grounds should be prohibited and considered immoral.
” insofar as children actually tend to be annoying” It seems to me the world “actually” is doing a lot of work there. What if a photographer finds gay people or mentally handicapped people to be ‘actually’ annoying?
I think you’re getting at the following: the event photographer might say, “I find gay people inherently annoying, even if they are friendly, funny, donate all their money to charity, etc., so I won’t photograph them.” In that case, though, the event photographer isn’t even trying to appeal to any neutral principle that would help to resolve whether or not it’s ok to discriminate against gay people — they’re just saying: “gay people are bad, because gay people are bad.” So I don’t see how they could be following any formulation of the anti-discrimination principle.
“I think you’re getting at the following: the event photographer might say, “I find gay people inherently annoying, even if…”
No, I have in mind a photographer who says, “I find gay people generally annoying because of X stereotype.” I can only imagine that’s likewise the most the anti-child photographer could say – there is no inherent characteristic of children (other than age), only stereotypical ones. Even if the photographer’s reason is simple disgust at displays of erotic affection between same sex couples, that’s a real and subjective experience the photographer has, just like a photographers disgust at the shrill voices of 5 year-olds or whatever their problem is. Turning to the mentally or physically handicapped whatever grounds you accept for discriminating against children would seem to fit there even better. Because while most children are short, weak and cognitively less adept than most adults, various disabilities render adults necessarily subject to those “actually annoying” characteristics (in the mind of our photographer).
Re: “[T]here is no inherent characteristic of children (other than age), only stereotypical ones.” — I think any formulation of the anti-discrimination priciple presumes the ability the separate out correct generalizations from incorrect generalizations, so that there would actually be some generlizations about children that are stereotypes, and some that aren’t. If that’s not possible, then I’m not exactly sure what any anti-discrimination principle would be for.
Regarding the problem of subjectivity, I think any formulation of the anti-discriminatoin principle also presumes some sort of ability to objectively figure out whether things are good or bad for a certain role — e.g., some behaviors make somebody a bad customer for an event photographer (e.g., random yelling, crying, etc.), but some don’t (e.g., being short, weak, and cognitively less adept) . But if that’s not the case, again I’m not sure what use you would have for any anti-discrimination principle in the first place.
John Corvino responds here.