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ABSTRACT
Several leading theorists embrace the Simple Desert Account of Discrimination. This account involves two claims: it claims that a mismatch between what people deserve, on the one hand, and what they get, on the other hand, is (a) integral to discrimination, and (b) wrong. I shall query (a). First, I challenge what I see as the principal, positive argument for the Simple Desert Account. Second, in some cases wrongful discrimination brings about a better match between desert and what people get. Situations in which this could be the case include those where: the discriminatee is a serial discriminator herself; the person wrongfully discriminated in favour of deserves greater advantages than she enjoys; by engaging in wrongful discrimination the discriminator reduces her moral deservingness and thereby the gap between her level of deservingness and her otherwise unfittingly low level of advantage.
Disclosure statement
No potential conflict of interest was reported by the author(s).
Notes
1 Treating someone on the basis of what they deserve requires that part of the motivational state of the discriminator, who treats the discriminatee, includes a causally relevant mental representation – correct or not – of what the discriminatee deserves. By contrast, an agent can treat (e.g., unknowingly, or knowingly but indifferently) a discriminatee in accordance with what the discriminatee deserves without any such representation. I assume that not treating people in accordance with what they deserve is morally objectionable even if desert plays no role in the discriminator’s motivational state, and thus I focus on the former.
2 The ‘because’ here (and in similar contexts below) signals that the relevant facts are sufficient grounds for the resulting property in question (here: wrongness). I do not imply that the relevant facts are the only ground for the resulting property.
3 See recent discussions of algorithmic discrimination in relation to the use of risk prediction instruments in court cases (Angwin et al. Citation2016) and of discrimination in relation to capital punishment (Cholbi and Madva Citation2018; Kramer Citation2014, 313–324; Lenta and Farland Citation2008).
4 For a recent survey of job market discrimination, see (Neumark Citation2018).
5 Both Miller and Mason are inclined to restrict this claim to contexts involving fair equality of opportunity.
6 The formulation here is neutral between comparative and non-comparative desert. However, because discrimination is essentially a matter of differential treatment, it seems plausible that if the Simple Desert Account is true, it is true in virtue of a mismatch involving comparative desert. No doubt paradigm cases of discrimination also involve treating people in ways that involve a mismatch between what they deserve absolutely speaking and what they get, but as the example of punishment shows it is possible to be subjected to discrimination and yet be treated in accordance with one’s absolute desert.
7 For a survey of alternative accounts, see (Lippert-Rasmussen Citation2014, 103–189).
8 ‘Discriminatees’ refers both to those who are discriminated against and those who are discriminated in favour of (and often treated better than they deserve to be treated).
9 On a widely adopted understanding of it, discrimination involves differential treatment of (or disparate impact on) people on account of their being members of different socially salient groups, e.g., the group of disabled people (Lippert-Rasmussen Citation2014, 30–36). Since there are many ways of treating people differentially that create desert-get mismatches and do not involve treating people on the basis of their membership of specific socially salient groups, there are, in my view, many non-discriminatory acts that are wrong because they involve a desert-get mismatch if discrimination is wrong for that reason.
10 I thank an anonymous reviewer for the two challenges that I respond to in these paragraphs.
11 In Section 3 I am not claiming that, sometimes, people deserve to be wrongfully discriminated against under that description. Nor am I claiming (though I am entertaining the thought) that, sometimes, people deserve to be treated in a way that amounts to being wrongfully discriminated against.
12 One can discriminate by treating people similarly – in some respects – even though they differ in terms of responsibility for features of theirs that potentially justify the treatment in question. This complication makes no difference to my argument. Accordingly, I set it aside.
13 ‘[D]esert claims have to be sensitive to responsibility … it seems clear that everyone assumes that some degree of control is necessary [for desert]’ (Moles Citation2017, 121).
14 Walzer (Citation1983, 136) thinks offices (as well as many other goods) should be distributed independently of desert, but he would presumably agree that they can filled in a way involving wrongful discrimination (see also Sadurski Citation1985).
16 This is a case where the above-mentioned difference between treatment on the basis of … and in accordance with … might make a moral difference.
17 Suppose some parents have their kids’ faces tattooed with irremovable ink. If not hiring them would be objectionably discriminatory, then so would not hiring people who have themselves chosen to have such tattoos at an age where they can be held responsible for their choices. This is consistent with saying the latter is morally worse than the former.
18 This may not show that the Simple Desert Account is false. While people might be responsible for having a facial tattoo, it could also be the case that having a facial tattoo makes no difference to what they deserve in relation to the benefits and harms involved in the relevant discrimination cases – e.g., it is not as if choosing to have a facial tattoo makes one less deserving of a job for which one has applied. Or, to put it differently: while one is attributively responsible for one’s tattoo, one is not substantively responsible for it.
19 The desert object here might be more generic (Moore Citation1997, 88). If so, it is no problem for my account if being discriminated against falls under that more generic category.
20 Some might object to the complex desert account (and a fortiori to any more complex account) that the connection between desert and discrimination is very weak: for example, one might just as well accept an analogous, complex privacy account according to which discrimination is sometimes wrong because it involves treating people in ways that flout the value of privacy (no doubt this is true of some instances of (non-)discrimination).
21 Providing a satisfactory answer to this question does not quite establish (b). For that purpose, one will also have to show that treating someone in a way that they deserve to be treated is a right-making feature of the action in question. However, I take it that most desertists, unlike those who reject desert, will readily grant me this claim and, thus, I shall not offer any arguments in support of this additional claim. (Desertists who think that while it is intrinsically good that people get what they deserve, desert does not affect what it is right or wrong to do might not accept this further claim.)
22 In saying this I am not suggesting that there could not be non-culpable, discrimination-involving desert bases in virtue of which one can deserve to be subjected to discrimination. Perhaps there can be. However, the case of culpable discrimination seems to be one of the more plausible candidates.
23 I thank an anonymous reviewer for pressing these points.
24 See Norton and Sommers Citation2011. There is a classic debate among legal scholars, some of whom subscribe to the anti-classification approach to discrimination law and some of whom subscribe to the anti-subordination approach. On the former view, discrimination is symmetric, and the aim of discrimination law is to protect people from disadvantageous treatment etc. on grounds of their race (whether they are white or black), gender (whether they are male or female), and so on. On the latter, the aim of discrimination law is to mitigate or even eliminate the subordination of certain groups, e.g., African Americans and women, and for that purpose it may not always be necessary for the law to protect people from disadvantageous treatment on grounds of race or gender when they belong to the subordinating groups (Fiss Citation1976). However, this debate is not about the folk concept of discrimination. It is about the function of discrimination law, and one could in principle subscribe to the anti-subordination view of the function of discrimination law and still think that the folk concept of discrimination is symmetric. Probably, the most prominent recent theorist to embrace an asymmetric concept of discrimination is Deborah Hellman (Citation2008). However, the asymmetry she posits is weak in the sense that she accepts that, as a conceptual matter, members of privileged groups can be subjected to discrimination qua members of those groups in special contexts. Hence, even on her account it is unclear whether Bigoted Company Owner cannot be subjected to discrimination.
25 Also, I have assumed, not argued, that, from a desertist point of view, if one deserves to be treated in a certain way then that is a right-making feature of being treated in that way.
26 In the controversial case of COMPAS, unlike in Bigoted Company Owner, the algorithm was not fed information about the race of the offender (whatever the race of the offender) (Angwin et al. Citation2016).
27 Sher uses this as an example of a desert claim, not an example of a true desert claim.
28 ‘If someone had it coming, something bad happened to them that was deserved’, https://dictionary.cambridge.org/dictionary/english/had-it-coming-to-you.
29 Admittedly, not all desertists make this claim, but a fair amount does (or make a similar claim that gives rise to a similar question).
30 A real-life case: ‘[T]wo American Quakers, Elizabeth Cade Stanton and Lucretia Mott, traveled to the 1840 World Anti-Slavery Conference meeting in London. Having made the arduous trip across the Atlantic to even attend, they were shocked to discover that they were not allowed to be seated. Why? – because they were women. The majority of men in control did not regard them as capable of being fully human and capable of serving as fully fledged participant’ (Lauren Citation2011, 58).
31 For a classical formulation of the underlying general point, see (Locke Citation1980, Ch. II, Sec.13).
32 For discussion, see (Hanna Citation2013, 46–49).
33 In some but not all cases, because the liar deserves to be lied to, being lied to does not wrong him, e.g., cases where the liar has never lied to those who lie to him.
34 I thank an anonymous reviewer for pressing this objection.
35 Alexander (Citation1992) mentions virtuocracy, but he is neutral on how it should be assessed.
36 Perhaps in some cases it would not be so (Lippert-Rasmussen Citation2020).
37 I can make myself less deserving in many ways other than by wrongfully discriminating. Hence, the present challenge is one that easily generalizes from the desert account of the wrongness of discrimination to desert views in general, including retributivist justifications of punishment.
38 Some desertists might think that there are reasons internal to desert that motivates distinguishing between different ways of reducing mismatch (e.g., Kant Citation2002, 141–142; see also Tadros’ (Citation2017, 404) distinction between responsive and correlative aptness). While I have my doubt as to whether these reasons are sufficient to defeat the challenge presented in this section, I do not have the space to venture into this matter.
39 To determine what someone deserves we ‘restrict our concern to facts about the agent’s intentions for action, the quality of will that is manifested in her action, her understanding of her action, and the action she performed’ (Haas Citation2013, 233). One could also make the weaker claim that at least I do not lower my level of moral deservingness in Prevention. This claim would be consistent with saying that one cannot increase one’s level of moral desert by performing wrongful actions even if the ultimate aim is morally desirable (and that it is in some sense praiseworthy that one acts to promote it).
40 W. D. Ross (Citation1930) thought that we have a prima facie duty to ensure that people get what they deserve, and presumably he took this duty to be deontological in nature – that we cannot deprive someone of what they deserve to ensure five others get what they deserve.
41 Deontologically inclined desertists might say that we have no such reason in cases where, to reduce the relevant gap, we must contravene desert-related deontological constraints.
42 Of course, they might think that there are additional deontological constraints not grounded in desert that forbid discrimination.
43 A previous version of this paper was presented at the Hebrew University July 22, 2021. I thank the participants for useful comments, especially Larry Alexander, Richard Arneson, David Enoch, Erin Kelly, Elinor Mason, Re'em Segev, Saul Smilansky, and two anonymous reviewers from this journal. I am especially indebted to Jens Damgaard Thaysen. I am grateful to the Danish National Research Foundation (DNRF144) for financial support.
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