Transcript: Episode 129 with Nethanel Lipshitz on discrimination

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Episode post here. Please join me in welcoming our new transcriptionist, Maria Araújo!

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Matt Teichman:
Hello, and welcome to Elucidations. I’m Matt Teichman.

Ben Andrews:
And I am Ben Andrew.

Matt Teichman:
Nethanel Lipshitz is Law and Philosophy Fellow at the University of Chicago Law School.¹ And he’s here to discuss discrimination. Nethanel Lipshitz, welcome.

Nethanel Lipshitz:
Thank you. Nice being here.

Ben Andrews:
So, Nethanel. This is a very clichéd way to start this kind of interview, but you’re here to talk about discrimination. So what is discrimination? Tell us what it is.

Nethanel Lipshitz:
Thank you, Ben. This is actually a more complicated question, of course, than we might first think. Like all big concepts in political philosophy, there are all kinds of ways of approaching this topic. One way I find especially helpful—and maybe we can use that as our entry point to this conversation—I can read out loud the definition given in the Stanford Encyclopedia of Philosophy to discrimination. And then, we can maybe work around that definition—and I’ll tell you where my definition of discrimination diverges from that.

So, according to the Stanford Encyclopedia of Philosophy, discrimination can be defined as the following: it says, ‘we can say that discrimination consists of acts, practices or policies that impose a relative disadvantage on persons, based on their membership in a salient social group.’

Matt Teichman:
Blah-bity blah-bity blah…

Nethanel Lipshitz:
So, let’s see what this definition consists of. So—

Ben Andrews:
Wait, just to be clear, can we say what is a relative disadvantage?

Matt Teichman:
And maybe a salient group and, all that stuff.

Nethanel Lipshitz:
Right, right. So let’s work through the different components of this definition. So first of all, discrimination consists of acts, practices, and policies. So usually, we talk about discrimination to assess acts and policies, rather than states of affairs—although this gets complicated when we try to talk about what’s sometimes called indirect discrimination, or structural discrimination. But the basic concept of discrimination is a way of assessing acts and policies.

Matt Teichman:
So what would be an example of a discriminatory act? Like, I charge you more for cigarettes than I charged somebody else for cigarettes, or something like that?

Nethanel Lipshitz:
Could be. But we’ll see, in a second, what else is required for that act to count as discrimination. So, just in virtue of the fact that you do that, most philosophers would say that we cannot yet infer that you’ve discriminated against me.

Matt Teichman:
Okay. But that is the kind of thing that gets to be discrimination in principle, maybe.

Nethanel Lipshitz:
Could be, could be. Giving preference in hiring is an example that people like to give; giving preference in acceptance to schools—those are the typical examples that we sometimes get in the literature. Yeah.

Matt Teichman:
So that’s what we mean by ‘act or policy’.

Nethanel Lipshitz:
Right. Of course, there are more dramatic examples from history—segregation, and so on. We can get to those. So, we said that discrimination is a way of assessing acts, or policies, or practices—that’s part of the definition. Another part of the definition is that a discriminatory act imposes a relative disadvantage on persons.

What do we mean by relative disadvantage? Whenever I do something that harms you, or even benefits you, there are two ways in which I can assess that action. I can compare the advantage, or disadvantage, that I imposed on you, in relation to some absolute scale—completely unrelated to what other people have. Or I can measure the advantage, and disadvantage, in comparative terms—in relation to what some relevant comparison group of people have. So when we say that a discriminatory act imposes a relative disadvantage, it means that when we talk about something as discrimination, we assess the disadvantage that I imposed on some person, in comparison to the advantage that some other person has. So it’s not an absolute comparison.

So an example of an absolute way of disadvantaging you is, for example, lying to you, or humiliating you. Those are wrong, regardless of whether I lie to other people or not, or whether I humiliate other people or not. But charging more for cigarettes from you than I charge others could be discrimination—because in comparison to what I charge others, what I charge you is different. Even if what I charge you, in absolute terms, is a pretty fair price to ask for cigarettes (it’s not excessively high)—as long as it’s higher than what I charge others, it could be a candidate for a discriminatory act. Does that make sense?

Matt Teichman:
Right. So we’re not interested in: what, objectively, should the price of cigarettes be, period—and what are you being charged relative to that? We’re interested in: am I upcharging one person relative to other people, and everybody else gets them cheap?

Nethanel Lipshitz:
Right. That’s correct. Now, of course, a single act can be measured both in relation to an absolute scale, and in relation to a relative scale. So if I have a policy of lying to some people, but not lying to others, we can say that what I did is doubly wrong. I did something wrong from an absolute perspective, you should imply, but I also practiced a discriminatory policy, or practice, where I lie to some and I don’t lie to others. So there is also a relative disadvantage that I impose on some people, using this practice, or this policy. So some actions can be assessed simultaneously—both in absolute terms and comparative terms. But it’s only in the comparative term that we call an action discriminatory. It’s only when there is a relative disadvantage that we call an action discriminatory.

And then, the last component in the definition—in the standard definition of discrimination—is that I impose the relative disadvantage on persons based on their membership in a salient social group. So the question becomes: what is a salient social group? The examples are well-known; a salient social group might be: the groups of white people, African-American people. Might be the group of women, the group of men, the group of straight people, the group of gay people, the group of able people, the group of disabled people. We can think of all kinds of examples for what would constitute a salient social group: religious groups (of course), the Jews, Christians, Muslims, ethnic groups. All of those could be examples of a salient social group.

And it seems to be important for most philosophers working on the topic of discrimination that, indeed, the relative disadvantage has been imposed on someone in virtue of the fact that that someone is a member of some salient social group. And it is that component of the standard definition of discrimination that I am struggling with—that I’m least comfortable with. Because it seems to me that we could have ended the definition of discrimination without mentioning at all the membership in salient social groups. We could just talk about imposing a relative disadvantage, or not taking the interests of some people as just as important, from the moral point of view, as the interests of others. So, I actually fail to see why we need the membership in salient social groups as an essential part of the definition.

Matt Teichman:
So, to go back to the cigarette example—

Nethanel Lipshitz:
Right.

Matt Teichman:
Let’s say that I upcharge only Muslims for cigarettes. So, the Muslims will be the salient social group, in that case, who are getting the differential treatment. And it’s part of this idea that there is a group that’s all getting this treatment—that’s part of what makes it discrimination. And, I guess, it’s also part of the idea that—that they’re part of the group is the reason, or part of the reason, that I’m discriminating against them. So if I just charged more money to Muslim customers for my cigarettes, because of some random reason—I don’t know, I lost a bet or something—maybe that wouldn’t be discrimination anymore, according to this definition?

Nethanel Lipshitz:
That’s correct. And if, for example, I charge you more—you enter my store and I charge you more for cigarettes—just because I happen to not like you, that would not be considered a discriminatory act, according to this definition. Or, if I charge you more because your family name begins with a T, I will not be discriminating against you, because people whose family name begins with a T do not constitute a salient social group. Even though, in a very technical set-theoretic sense, there is a set of people whose family name begins with a T, they don’t constitute a salient social group.

Now, the history of this is quite interesting. Because if we read the early academic papers on the topic of discrimination—papers published in the mid to late 1940s—one sees that wrongful discrimination can happen in relation to any individual feature. It doesn’t have to be membership in a salient social group. The idea that discrimination can only be as a response to membership of an individual in a salient social group—that idea evolved somewhat later. And today, I think it’s part of the orthodoxy to take that to be a part of the definition of what discrimination is. But it wasn’t always the case. And I, for one, am not convinced that membership in a salient social group is necessary for an action to be discriminatory.

So here are some examples we might want to think about. Let’s take the group of asexuals. I could impose some disadvantage—relative disadvantage—on someone because he’s asexual—and I don’t like asexuals. But it’s very unlikely that asexuals are, today, a salient social group. And it seems to me that if I impose on someone a relative disadvantage just because they’re asexual, that would count as wrongful discrimination— despite the fact that that is not a socially salient group. So, this would be one example that I think would challenge this orthodox definition.

Matt Teichman:
What does it take for a group to be socially salient? I guess we should also explain what an asexual person is. So, presumably, somebody who’s asexual is somebody who doesn’t feel any strong sex drive, or doesn’t feel a need to have a partner that they regularly have sexual intercourse with, or something like that.

Nethanel Lipshitz:
Right, right.

Matt Teichman:
But—you know, it probably varies from person to person—but at least in my circles, I hear a lot about, ‘Hey, happy asexual awareness day!‘, and stuff like that, where people are trying to raise awareness of asexuals as a social group. Is that just making your case—that they’re not salient yet, but some people within the community are trying to make the group salient?

Nethanel Lipshitz:
Right. And I want to say that if they experience any relative disadvantages now, even before they become socially salient groups—if they experience relative disadvantage now, in virtue of the fact that they’re asexual—that could be a case of wrongful discrimination. Or so it seems intuitive for me to say.

Matt Teichman:
So we don’t have to wait until there is widespread awareness of the differential treatment happening, before we can say, yeah, that was wrong for that to happen.

Nethanel Lipshitz:
Correct, correct. Here’s another possible example. Let’s say I come up with my own religion. I invent my own religion that applies only to me—I’m the only member of the religion in the entire world. It’s a religion that promises eternal bliss, but only to me. If someone imposes a relative disadvantage on me, in virtue of the fact that I practice this religion, it seems to me clearly to be a case of wrongful discrimination, if that happened. Even though, by definition almost, this religion is not a salient social group—it’s not a social group at all.

So to explain those cases—the cases of asexuals, or the cases of myself inventing a religion that applies just to me, or that I’m the only member of—I find that more traditional ideas from mathematics and set theory, are more helpful—where any group of individuals could form a set, even a group of one member. So, if you impose a relative disadvantage on me because of the fact that I practice a religion that I’m the only member of, there is still a sense in which you discriminate against me because of the group to which I belong. But it’s not a salient social group, in the way most philosophers are using this term.

Ben Andrew:
So it seems like what’s going on in your examples is: people are being treated worse than others on the basis of a feature of their identity. Or at least, that’s certainly what’s going on in the case of asexual people; and that’s one way to imagine the case of the new religion. So, why not say that, maybe, I can’t discriminate against somebody in virtue of being in any possible group, right? Like, it’s not discrimination if I treat somebody worse because they are the 13th person to walk into my store today—but it is discrimination when I treat somebody worse on the basis of a feature of them that’s part of their identity—

Nethanel Lipshitz:
—that goes deeper into what their identity is. Yeah.

Ben Andrew:
So my question, I guess, is: are there cases that might make me think that I need to expand my definition of discrimination?

Nethanel Lipshitz:
Right. And how much can we expand it, and in what directions?

So I gave you a few examples that try to motivate the intuitive case against ‘membership in salient social groups’ as necessary for wrongful discrimination. But here is the more principled objection I have, and that is: that I think that the best explanation we have of what makes wrongful discrimination wrong is that it violates a norm of equality among human beings. The idea that all human beings are equal; all human beings deserve equal concern and respect; all human beings have equal moral status; all human beings have equal dignity. There are different ways of specifying, or expressing, this idea of human equality. But let’s give the name of basic equality to this idea—basic equality is the idea that all human beings are equal.

Wrongful discrimination is wrong—I believe, and so do other people—because it violates this norm of basic equality. Now, basic equality requires at least the following: it requires that we give the interests of all human beings equal weight, from the moral point of view. So your life, Matt, is just as important, from the moral point of view, as Ben’s life. My life, or my interest in having freedom of movement, is just as important as any of your interests in having freedom of movement. This is the basic idea of basic equality.

Wrongful discrimination is wrong because it violates that. Now, basic equality is a norm about all individuals, qua individuals. All individual human beings have equal moral status; all of them are equal. And it seems to me that it doesn’t truly matter why you treat someone as inferior to others, to be able to say that you have wrongfully discriminated against that individual. It seems to me that when one person treats another person as inferior in moral status—that’s already a complete violation of basic equality. It doesn’t need to be for a specific reason—or the reason that they belong to a salient social group—for that to be a violation of basic equality.

So I am more attracted to a definition of wrongful discrimination that omits this condition of ‘membership in a salient social group’. Membership in a salient social group is just one case of wrongful discrimination—a very prominent case, a very important case—but just one case of wrongful discrimination. But really, whenever one treats some human being as inferior to some other human being, for whatever reason, I think they engage in wrongful discrimination. And I think that’s the definition I find more helpful and clear, when thinking about issues of wrongful discrimination.

Matt Teichman:
So we shouldn’t worry about whether there’s a group of people that were discriminated against, necessarily, to count it as discrimination. We shouldn’t, necessarily, care about what the principled commonality behind the group is, in order to count it as discrimination. And I guess we also shouldn’t worry about why I’m doing it, necessarily, for it to count as discrimination—on your view. Is that right?

Nethanel Lipshitz:
I think that’s right. Maybe, we should add that I should have, somewhere in my head, the intention to treat you as inferior. So that should somehow figure in my action—maybe, or maybe not. I’m not sure. But it doesn’t matter why I want to treat you as inferior. That’s what I want to say, yes.

Matt Teichman:
So, okay, I’m the shopkeeper again. And I single you, Nethanel Lipshitz, out, as the only person in the world who has to pay 10 times as much for cigarettes. And if somebody asks me why I’m doing it, let’s imagine—

Nethanel Lipshitz:
Yeah?

Matt Teichman:
—I don’t know why, it’s like a subconscious impulse. I don’t know, I just feel like it. I can’t tell you why, but I do it anyway. Would that be discrimination?

Nethanel Lipshitz:
I’m tempted to say yes. But there are complications here, because when I say that someone is engaging in wrongful discrimination, I’m criticizing them morally. And, at least on one plausible view, it seems unfair to criticize someone, morally, for unconscious biases. We can hold people accountable only for what they consciously adopt as their beliefs and intentions. So there is that complication, that is related to moral responsibility. But—that complication aside—I would characterize the action as a case of wrongful discrimination, because it seems to treat my interest in, say, saving money, as way less important than the interests of other customers in your shop. And so, in imposing on me this burden, you seem to suggest that—maybe not to a great extent, but to some extent—you see me, Nethanel, as somewhat less important, somewhat inferior to other human beings, in moral status. Because you take this interest of mine to be less important than the interests of others. You take my interest as imposing less demanding demands on you than similar interests of others impose on you.

Matt Teichman:
That’s interesting. It seems like the issue isn’t, necessarily, whether I can give a coherent rationale that makes it sound like I’m mistreating you, so much as: could somebody reasonably reconstruct from my behavior the assumption that you deserve this bad treatment? Or something like that.

Nethanel Lipshitz:
Right. Or whether we could reasonably see the action as expressing that belief—even if that belief didn’t consciously arise in you before the action. Here’s another example, perhaps. It has to do with intersectionality, which poses interesting challenges to the philosophy of discrimination.

So let’s say you impose a relative disadvantage in me, because I am an African-American lesbian woman with a disability. And you would not impose that relative disadvantage of me if I was just African-American, or just a woman, or just had a disability—or had just two of those in intersection. You impose this relative disadvantage on me because it is these three things together, in one person, that you absolutely cannot stand, for some reason. It seems clear to me that this would be a case of wrongful discrimination, even though the intersection of the three salient groups is not itself a salient group. So, I think examples like this also push against the standard definition of what wrongful discrimination is.

Matt Teichman:
Right. It’s not like we want to wait for there to be an African-American disabled lesbian caucus, or something, to start caring about that treatment.

Nethanel Lipshitz:
That’s correct. Or: to start seeing unique relative disadvantages, imposed on people who have those three identities, as wrongful discrimination, we don’t have to wait for them to be members of a salient social group.

Ben Andrew:
Many people would have the intuition that it’s worse for me to treat you worse than other people on the basis of, say, your race, or your sexuality, than it would be to treat you worse than other people on the basis of just a mere whim, or the fact that I don’t like the shirt you’re wearing. Do you think that your account of wrongful discrimination has the resources to explain that?

Nethanel Lipshitz:
Only in an indirect way. Here is how, perhaps, a view like the one that I’m trying to develop would address this idea—that it’s worse to treat someone on the basis of the race than it is to treat them on the basis of their family name, for example.

So there are a few other considerations that enter into this action of treating someone worse than others because of their race, that do not enter when we treat someone worse than others on account of the first letter of their family name. When we treat someone worse because of their race, it seems more plausible to attribute to the action (that we do) the expressive value of saying, we do not see you as equal to other human beings. This is not something essential about race. It’s something contingent about our history—that doing that action more unequivocally communicates the belief in the inferiority of some people, relative to others. But I think any time in which I treat some human beings as inferior to others, I wrongfully discriminate. I do more of that, perhaps, when I do it on the basis of race, because it’s more clearly an expression of the belief that they are inferior to others.

In addition, when there are salient social groups that are disadvantaged in our society, my action of imposing a relative disadvantage on them contributes more to their larger social subordination, or marginalization, or oppression. And that, in itself, is bad, and makes my act of wrongful discrimination more wrong than it would have otherwise been. But I still want to resist the thought that it’s only because someone is a member of a salient social group that it’s possible for me to wrongfully discriminate against them. Does that help?

Ben Andrew:
That does. So, to perhaps go back to the cigarette example. If I refuse to sell you cigarettes because you’re a Muslim, then I wrong you more than the non-Muslim person who I refuse to sell cigarettes because I don’t like the color of their shirt. Because, in not selling you cigarettes because of your religion, I contribute to broader structures of discrimination and oppression of Muslim people.

Nethanel Lipshitz:
That’s correct. That would be the idea. Now, let’s actually take a look at this interesting case that you brought up, Matt, of selling cigarettes for a higher price. That seems, perhaps, to challenge another aspect of the orthodox definition. So far, we talked about imposing a relative disadvantage. But what if selling cigarettes to me for a really expensive rate is actually imposing an advantage on me—because I will smoke less cigarettes and I’ll be healthier? So what if, all things considered, it’s actually better for human beings not to smoke, rather than to smoke; and by not allowing me to buy cigarettes in the normal price, you actually make my life much better, because I now have an incentive to purchase less cigarettes? It seems that your action is still wrongful discrimination—even if, all things considered, what you imposed on me was not necessarily a relative disadvantage, but weirdly, perhaps, a relative advantage. So, how we think about that is, I think, something interesting to think about.

It seems, perhaps, that the best way to approach that is: to say that the idea of relative disadvantage is not an ‘all things considered’ judgment of how your life will go, if I treat you in a certain way. It’s just in relation to some narrower consideration—like your freedom of choice in what you do in your life. I impose on you a relative disadvantage, in terms of your freedom to choose to smoke, or in terms of the fairness of being an equal customer like others. So, that is a disadvantage in the narrow sense—a relative disadvantage—even if, all things considered, I’m doing you a big favor by not selling you cigarettes for the regular price. Maybe that’s the way to approach it. But I think there is an issue here, that might challenge that orthodox definition from a different perspective—not from the perspective of, say, ‘membership in salient social groups’, but from the perspective of relative disadvantage. Does it truly have to be a relative disadvantage to count as wrongful discrimination?

Matt Teichman:
Let’s flip it. Let’s say it’s a relative advantage that I only give to people of a specific salient social group.

Nethanel Lipshitz:
Mm-hmm.

Matt Teichman:
Muslims in my store can get everything for free, now— only Muslims. Would that count as a form of discrimination, potentially?

Nethanel Lipshitz:
If it would, it seems like in that case, it would count as a form of discrimination against all your other customers.

Matt Teichman:
Ah, okay. Right. So one person’s advantage, maybe, is another person’s disadvantage. And that way, we can still salvage the idea that disadvantage is required for discrimination.

Nethanel Lipshitz:
Correct. And here, the word ‘relative’ does a lot of work—because it’s actually analytically true that one person’s relative advantage is another person’s relative disadvantage.

Matt Teichman:
Assuming we’re dealing with a finite resource.

Nethanel Lipshitz:
Even if it’s an infinite resource, it seems to me that, whenever someone gets a relative advantage, all the other peoples are relatively disadvantaged. That seems to be analytically true, even when the resources are infinite.

Matt Teichman:
Interesting.

Nethanel Lipshitz:
So, it’s not just because I’m taking something from someone and giving it to you that you have a relative advantage. If I’m just giving something to you, and not to others, they are already relatively disadvantaged; and you are relatively advantaged, if the thing that I give you is good. And even if, in my pocket, I have infinitely much of that good thing, and I could give it to everybody.

Ben Andrew:
So you’ve asserted something like: every time I treat someone relatively worse, that’s a case of wrongful discrimination. But aren’t I allowed to treat my family members, or my friends, relatively better than everyone else; and, thereby, treat everyone else relatively worse than my family members, and friends, without being guilty of wrongful discrimination?

Nethanel Lipshitz:
Yeah. That’s a very good—and very difficult, and thorny—question for anyone who believes in basic equality, for anyone who believes that all human beings are equal. And indeed, some philosophers reject basic equality, on the grounds that partial treatment is permissible.

Here is my take on partiality. I don’t think it’s a complete account, but I think it takes us somewhere towards reconciling the permissibility of partiality with the truth of basic equality. It seems to me that one thing that is built into partial relationships is the knowledge that when I prefer my mother or my sister over a stranger, I do not thereby communicate the message that my mother or my sister matter more, from the moral point of view—that their interests objectively matter more, from the moral point of view. I don’t expect other people, for example, to give preferential treatment to my mother, or my sister—only I give them preferential treatment. And I think everybody understands that, in doing that, I’m not communicating any message of objective superiority of my mother or my sister over other people. And because I don’t communicate that, I do not violate basic equality.

But there are ways of giving partial treatment, that do communicate that. And those cases are actually wrong—morally wrong. So imagine my child is sick with a deadly disease, and there is scarce amount of medicine that could heal my child. I’m going to the hospital to get my child treatment and there is a line of parents with their children, who have the same disease as my child’s, waiting to get the very same medicine. And it is scarce; there is not enough medicine for all of us. So I push through everybody, take the medicine, and give it to my child—and save him. That’s a case in which I prefer my child to the children of other parents. But that action does seem to communicate that I take my child’s life to be worth more than the life of other children. And for that reason, that action is impermissible; it’s morally wrong. So it’s not like all actions of partiality are permissible. It’s only those that don’t communicate that my loved ones are, somehow, morally more important than others. That’s the key aspect.

Ben Andrew:
Okay. Okay, that’s interesting. So, this might be pushing too hard—

Nethanel Lipshitz:
Go ahead.

Ben Andrew:
But, if that case communicates that I’m treating my child as morally more important than other people—it seems to me that I’m always communicating that, in so far as I’m always allocating my scarce time and resources to fulfilling different people’s needs from me. Does that make sense?

Nethanel Lipshitz:
Yeah, it does make sense. And, if that’s true, then this reconciliation wouldn’t work.

Ben Andrew:
Okay.

Nethanel Lipshitz:
So I will have to find a way of making good on the claim that at least some actions of partiality—even though they take a lot of my time, and a lot of my resources, and a lot of my attention—still do not communicate that my loved one, or someone, are more important than others. I think that another difficult case for my attempt at reconciliation is that a racist might say something like, ‘I am white and I treat whites better, not because I believe whites are objectively better, but because they’re my race,‘—and would try to make his actions permissible, building on that.

Matt Teichman:
And indeed, that is the kind of rhetoric we see from a lot of contemporary white nationalists. It’s a little bit like the revival of ‘separate but equal’ rhetoric. It’s like, ‘Everybody’s different, nobody’s better, but we’re all different! Let’s celebrate our own differences from other people.’

Nethanel Lipshitz:
So, when we look at racist remarks from the past, a lot of it is objective-sounding. The people of other races are portrayed as having less of some valuable characteristics. That seems to be an objective judgment. Not to mention, of course, describing them as less than human, or anything like that. So racism, actually, is often not a mode of partiality; but it seems to entail more objective superiority. But there are hard cases still, and nationalism is one of those cases. Is it okay for me to be partial to fellow citizens, and to treat them better than human beings who are citizens of other states, or belong to other nations? Unclear. When it comes to nationalism, often, there is no supposition that, objectively, my nation is better than other nations. It’s just—it’s my nation, so I want to treat them better.

The Talmud says that you should give charity to the poor people of your city before you give charity to the poor people of other cities. You should take care of the poor people of your city first. So, in a sense, you give preferential treatment to them—not on account that they are, somehow, morally more important, from an objective point of view, than the poor people of some other city. It’s because they’re your city—they’re the poor people that are part of your city, of your community. Is that a form of legitimate preferential treatment? I tend to think it is, exactly because it does not have this objective implication that some people are morally more important than others. But, once we go to the level of the city, or to the level of the nation, it seems hard to see why no one could go even further—to the level of the race. And that’s where I feel like I don’t have the resources yet to answer the racist—the racist who does not believe in objective superiority of her race over others, but the racist who just prefers the members of her own race. Because they are the members of her own race.

Matt Teichman:
Because intuitively, ultimately, still feels too icky to just go along with it, in other words.

Nethanel Lipshitz:
I agree, I agree. But—

Matt Teichman:
—but how to explain it in a principled way, maybe, isn’t super clear.

Nethanel Lipshitz:
Right, right. Or, at least, I could imagine it in logical space—this version of racism, which does not have the objective implications, but it’s purely about partiality. But I still would like to reject that form of racism as wrong. So I still need to develop the resources to answer that, from within my account of wrongful discrimination.

Matt Teichman:
Okay. Let’s maybe turn back to this idea that discrimination, by definition, targets members of a salient social group. Perhaps, part of the intuition behind that is the sense that systematic injustices at the social level, that happened to large numbers of people—we all feel the impact of that more. They have more enormity to them, as moral injustices. So if one terrible thing happened between person A and person B—of course that’s terrible, and we should feel bad about it. But somehow, it intuitively doesn’t feel like the level of tragedy with a massive amount of horrible stuff happening to a ton of people—where you just have the sense that this whole section of humanity has been violently cut out. Do you think that’s part of the intuition behind the idea that there’s more to discrimination than just one person doing something bad to another? And to get at what’s really bad about it—why it’s really a moral enormity, or monstrosity—we have to elevate it to this group level.

Nethanel Lipshitz:
Yes. So, some philosophers working on discrimination give a rationale very similar to what you just said. Cass Sunstein, for example, wrote a paper in the seventies, I think, called “The Anticaste Principle”—according to which the point of what makes an action of discrimination wrongful is that it establishes, or perpetuates, social castes (that is, large social groups that are treated as inferior to other groups). One person cannot be a caste, right? So, it’s immediately not an individualist account—but a group-based account—of what makes discrimination wrong. What we want from anti-discrimination laws, example, is to prevent the creation of castes. If we think of discrimination in this way, then salient social groups seem necessary. And it explains why we tend to focus on things like race, and gender.

One worry I have about this idea of the anti-caste principle, or again, the salient social group requirement, is: what do we understand as salient? I keep going back to this point, but I think it’s quite important. Cass Sunstein, for example, speaks of a visible characteristic—making a caste out of people who share some very visible, and morally irrelevant, characteristic, like race, like gender. The problem is that, again, it seems to me that some invisible traits could also be grounds of actions that I would, at least, want to call wrongful discrimination.

Matt Teichman:
Like, how about sexual orientation? Is that visible?

Nethanel Lipshitz:
Sexual orientation is a great example. Religion is, sometimes, not a very visible characteristic. And even if we go to disability—some disabilities are quite visible, other disabilities are not. But it would seem strange to call one action discriminatory because it targets someone who has a very visible characteristic, as opposed to someone who does not, even though both of them have disabilities that perhaps have comparable effect on one’s life. So again, I’m less attracted to the anti-caste principle: because it seems to me that we could wrongfully discriminate even against people who would not constitute a caste, if they were discriminated against.

That said, I do understand where some of these philosophers are coming from. I think that we do want, as philosophers—especially as political philosophers—we want to respond to real world injustices. We want political philosophy to be a contribution to what is actually going on in society, to our understanding of actual injustices in our society. And when we look at actual injustices in our society—as opposed to hypothetical injustices that we could have—what we find is discrimination on the basis of race, gender, sexual orientation, and so on. And I think that might be a contributing factor, to adding that to our definition of wrongful discrimination— adding the salient social group to that definition. The kind of definition that I offer is vulnerable to the criticism that it operates on a too-hypothetical and abstract level, and does not really respond to the kind of social reality that gave rise to this whole talk of discrimination in the first place.

Matt Teichman:
I mean, I feel like we could make it concrete and not abstract by just asking: do you believe in reverse racism?

Nethanel Lipshitz:
Oohf. So, reverse racism, or affirmative action? Very hard question. Here is what the question tends to boil down to: do we believe that wrongful discrimination can happen to both sides of a social divide? Both to the advantaged and the disadvantaged? Or do we believe it’s unidirectional—that it can happen only in relation to the disadvantaged?

Some philosophers say that the dominant group cannot discriminate against itself. And the generally dominant, and strong, and wealthier, and so on, group—if members of that group are relatively disadvantaged, that cannot be wrongful discrimination, because they’re not members of disadvantaged groups. And it’s easier to make sense of that claim if we really take the anti-caste route, for example, of Cass Sunstein, because we can say, ‘The dominant group will never become the lower caste in society, that’s not a danger.’ So if you impose a relative disadvantage on one of its members, you will never create a lower caste out of the dominant and strong group. That’s just not going to happen. So there is no problem with so-called reverse discrimination. There is no problem with affirmative action.

My individualist approach will be more critical of affirmative action. I don’t see any reason to deny that when we impose a relative disadvantage on a member of a dominant social group, we violate norms of basic equality towards them. So I am more conflicted about affirmative action than, I think, most of my progressive friends, with whom I identify on so many topics.

Here’s, perhaps, another way of cashing this out. It seems to me that when we talk about wrongful discrimination, there are really two distinct issues that we should think about. One is the issue of respect. Do I disrespect you by treating you less well than other people? And, for example, when I tried to justify partiality of treatment, I said that when I treat my mother better than other people—than strangers—I do not disrespect them. Because I don’t communicate the message that my mother is more important than they are.

Okay. So there is this issue of respect—respecting someone as a human being. But there is also the issue of fairness—which is a very tricky issue, but it exists nonetheless. And affirmative action, I think, does raise the question of fairness in a way that, maybe, its supporters do not always recognize. But it also raises the problem of respect, because it is possible to disrespect an individual human being who belongs to the dominant group—by taking her interest as mattering less, from the moral point of view, than the interests of others. I don’t see why we cannot say that. So, I am actually conflicted about affirmative action, at this point in my intellectual development.

Ben Andrew:
So it seems to me that you can have the basic equality view, without having that criticism of affirmative action—if what you think is important is that, overall, over the course of their lives, people’s interests are all treated the same. And then, you might say something along the lines of: though affirmative action places the interests of disadvantaged groups over the interests of advantaged groups, overall, in society, this levels out all of the other places in which the interests of advantaged groups are placed over the interests of disadvantaged groups.

Nethanel Lipshitz:
Yeah. And I think that might be a promising way to go. So maybe we can say that by offering what we can call affirmative action, or reverse discrimination, what we’re actually doing is correcting for inequality that happened earlier in time. So that the person in front of us—her interests were not taken to be as morally important as the interests of others before. And now, we go into the other direction, to correct for that. And that is not a crazy idea, actually. In Aristotle, we see that one way of correcting for one deviation from virtue is to actually deviate for a while in the other direction. So, eventually, you will hit the golden standard. And maybe, something similar we can say about affirmative action. We are motivated by the idea of basic equality, and we’re correcting for past treatment of some people as inferior to others. And yes, I see why that might be a promising way of reconciling the two ideas.

Here is an example from a paper by Bernard Williams that might be helpful here. Bernard Williams, in a paper from the late seventies called ‘The Idea of Equality’— which, in my opinion, is still one of the best papers on the topic of equality— he says that when you give the very same test to two people with different backgrounds, you really don’t give them the very same test. If someone comes with a disadvantage, and takes the test, and gets a lower grade—taking that lower grade as enough to get a certain benefit, like a higher grade from someone more advantaged, is actually not a form of affirmative action. Because you need to take the test in the context of the life of that person. So actually, what you’re doing, when superficially it looks like you’re offering affirmative action, is offering equal treatment. This is how you offer equal treatment: when some people have more disadvantaged backgrounds than others, you lower the standards, for example, in relation to the disadvantaged people.

I still have concerns about affirmative action, though. One concern I have is what we might call the concern of good faith. It seems to me that even those who support affirmative action don’t want, personally, to be the beneficiaries of affirmative action. When they get a job, or they get into school, they don’t want to believe that that was because of affirmative action. And places that admit people never communicate that. Even if they say, ‘We have generally an affirmative action policy’, they never tell people, ‘We accepted you because of affirmative action’. So it seems to me that institutions are invested in hiding the fact that they have affirmative action policies—so that they don’t communicate to individuals that they were the beneficiaries of affirmative actions.

And this seems to be a flaw, or a fault, in this practice of affirmative action. It cannot really be exercised transparently. We cannot, really, tell people: we have affirmative action, and we got you in because of this affirmative action. And if it was a completely non-problematic practice, why is it that we can’t really do that? Or we feel like we shouldn’t really do that? So this is another concern I have: a concern about the ability to practice affirmative action in good faith, in our society.

Matt Teichman:
What do you think is the main motivation for the idea that in order for something to be discrimination, it has to be against a salient social group, or members of a salient social group?

Nethanel Lipshitz:
So, the best explanation I have—for the tendency to include the component of ‘being a member of a salient social group’ in the definition of wrongful discrimination—has to do with a certain conceptual problem about wrongful discrimination which, I think has been identified nicely by Bernard Williams, in his paper on equality. Bernard Williams warns the reader that there are two extremes that it’s very easy to fall into, when you talk about equality of treatment, generally (and wrongful discrimination should be understood as a form unequal treatment).

One extreme is what he calls the extreme of triviality—where what you say is so weak, and uninteresting, that you haven’t really generated any substantive norm of anti-discrimination. So that’s one warning. The other extreme is what he calls the extreme of absurdity—where what you say so strong that it couldn’t possibly be true. And his example, of what it would be like to fall into the extreme of absurdity is to treat everybody equally all the time.

It seems clear that unequal treatments of many kinds are, actually, quite permissible. We make classifications all the time, as human beings—we make distinctions. It couldn’t be the case that every form of unequal treatment is morally wrong. That would be absurd; that would be the extreme of absurdity, in the language of Bernard Williams. So, what we want is some way of demarcating those unequal treatments that are morally wrong, from those that are not. And one way of doing it is to use classification by membership in a certain social group as a way of demarcating those forms of unequal treatment that are also morally wrong. So we can say: ‘When I impose a relative disadvantage on you, because of the membership in a salient social group, I wrongfully discriminate against you.’ And we thus escape this extreme of absurdity—by demarcating a relatively narrow set of actions that are wrongful discrimination.

My account of wrongful discrimination runs the risk of going too close to the extreme of absurdity, because my view seems to imply that many forms of unequal treatment are morally wrong. Because it doesn’t matter for what reason you treat someone unequally; in virtue of treating them unequally, in virtue of imposing on them a relative disadvantage, you have wrongfully discriminated against them.

So the challenge, for my view, is how not to get all the way to the absurd view (that no unequal treatment is ever justified). But I think the reason many philosophers choose the route of including ‘membership in a salient social group’ as part of the definition is to not fall into the ‘extreme of absurdity’ pitfall. And it also seems to be consistent with, at least, the American courts’ approach to the question of wrongful discrimination, where the important question is: on the basis of what have you been discriminated against? And if it is on the basis of race, or gender, then the courts tend to take that seriously; and they tend to take race as more important than gender. So our legal practice seems to take very seriously the idea of membership in a salient social group—but I’m not sure our moral theories should do the same.

Matt Teichman:
Nethanel Lipshitz, thanks you so much for coming on, and I hope I’m not treating anybody unequally in saying that I’d love to have you back.

Nethanel Lipshitz:
Thank you so much for having me.

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