One might think that it downplays the harm done by discrimination tosay that the disadvantage it imposes only need be a relativedisadvantage. However, the Brown case shows howthe imposition of even a “merely” relative disadvantage canhave extremely bad and unjust consequences for persons, especially whenthe relevant comparison class consists of one’s fellowcitizens. Disadvantages relative to fellow citizens, when thosedisadvantages are severe and concern important goods such as education,can make persons vulnerable to domination and oppression at the handsof their fellow citizens. (Anderson 1999) The domination andoppression of American blacks by their fellow citizens under Jim Crowwas made easier by the relative disadvantage imposed on blacks when itcame to education. Norwegians might have had an even bettereducation than southern whites, but Norwegians posed little threat ofdomination to southern whites or blacks, because they lived under anentirely separate political structure, having minimal relations toAmerican citizens. Matters are different in today’sglobalized world, where an individual’s disadvantage inaccess to education relative to persons who live in other countries couldpose a threat of oppression. Accordingly, one must seriously considerthe possibility that children from poor countries are beingdiscriminated against when they are unable to obtain the educationroutinely available to children in affluent societies.
To review: as a reasonable first approximation, we can say thatdiscrimination consists of acts, practices, or policies that impose arelative disadvantage on persons based on their membership in a salientsocial group. But notice that this account does not makediscrimination morally wrong as a conceptual matter. Theimposition of a relative disadvantage might, or might not, bewrongful. In the next section, we will see how the idea of moralwrongfulness can be introduced to form a moralized concept ofdiscrimination.
Matt Cavanagh holds a position similar to Young’s, writing thatpersons “who are concerned primarily with how things like raceand sex show up in the overall distributions [of jobs] have no businesssaying that their position has anything to do withdiscrimination. It is not discrimination they object to, but itseffects; and these effects can equally be brought about by othercauses” (2002: 199). For example, the disproportionateexclusion of certain ethnic groups from the ranks of professionalviolinist could be the result of discrimination against those groups,but it also might be an effect of the fact that there is a lowerproportion of persons from those groups who have perfect pitch than theproportion found in other ethnic groups.
To illustrate the idea of indirect discrimination, we can turn to theU.S. Supreme Court case, Griggs v. Duke Power (1971). Acompany in North Carolina used a written test to determinepromotions. The use of the test had the result that almost allblack employees failed to qualify for the promotions. The companywas not accused of intentional (direct) discrimination, i.e., there wasno claim that race was a consideration that the company took intoaccount in deciding to use the written test. But the court foundthat the test did not measure skills essential for the jobs in questionand that the state of North Carolina had a long history of deliberatelydiscriminating against blacks by, among other things, providing grosslyinferior education to them. The state had only very recentlybegun to rectify that situation. In ruling for the blackplaintiffs, the court reasoned that the policy of using the test wasracially discriminatory, because of the test’s disproportionateracial impact combined with the fact that it was not necessary to usethe test to determine who was best qualified for promotion.
The arguments of Cavanagh and Young raise a question that is not easyto answer, viz., why can indirect and direct discrimination belegitimately considered as two subcategories of one and the sameconcept? In other words, what do the two supposed forms ofdiscrimination really have in common that make them forms of the sametype of moral wrong? Direct discrimination is essentially amatter of the reasons or motives that guide the act or policy of aparticular agent, while indirect discrimination is not about suchreasons or motives. Even conceding that acts or policies ofeach type can be wrong, it is unclear that the two types are eachspecies of one and the same kind of moral wrong, i.e., the wrong ofdiscrimination. And if cases of direct discrimination areparadigmatic examples of discrimination, then a serious question arisesas to whether the concept of discrimination properly applies to thepolicies, rules, and acts that are characterized as“indirect” discrimination.
Are the wrongs of indirect discrimination sufficiently similar to thewrongs of direct discrimination that it is reasonable to say that theyare, in fact, two different types of one and the same wrong? We haveseen that the accounts of the wrong of direct discrimination are manyand various. But abstracting from those differences, critics oftalk of “indirect discrimination” might argue thatdiscrimination is essentially a process-based wrong, rather than anoutcome-based one, and that only direct discrimination isprocess-based. In other words, only with direct discrimination isthere a defect in how some outcome is brought about, rather than inwhat the outcome itself is. On this view, discriminating againstpeople is similar to having an incompetent person judge an ice-skatingcompetition: just as the incompetent judging taints the processby which places are awarded in the competition, discrimination taintsthe process by which opportunities and other social goods getdistributed among the members of society.
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The more positive influences of Shintoism were weakened by the samurai culture and spread of Confucianism and Buddhism in Japan. Yet, in the Heian era (950-1050 C.E.) women still held relative equity in marriage, education, and property rights. Gender difference in this period favored literate women who were free to write in the expressive, popular vernacular language, while men most often wrote in the more formal, inaccessible, classical Chinese. Both the independence and the gender limits of women of the pampered elite are wonderfully illustrated in the lively, gossipy writings of , Sei Shogonon, and other Heian female writers.
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