Discrimination is one of the most frequently used terms to condemn or express disproval of many types of unjust treatments viewed either from a legal or moral perspective. Yet, it is among the most frequently misunderstood and abused judicial or moral terms in use today. This concept should be understood within both the legal and moral contexts for the guidance of law enforcement officers, instructors, and students of criminal justice, law, or ethics, as well as the general public. Discrimination is addressed in moral arguments based on Kantian principles, the theories of justice of Aristotle and John Rawls, and also utilitarian arguments by John Stuart Mill and others. It is imperative to avoid or minimize this common but unjust practice of discrimination at both the personal and institutional levels.
Etymologically speaking, the term discrimination is derived from the late Latin (ca. 1640s) term discriminationem (nominative discriminatio), meaning “the making of distinctions.” It is the noun form of the Latin action verb discriminare, meaning “to make distinctions,” especially in a prejudicial way based on race. This implies that discrimination can be used either descriptively or prescriptively. Using the term descriptively means using it to depict or report how one group of people might be shown to be different from others, or treated differently from others without any judgment, prejudice, or bias.
For example, if it is scientifically proven that people with a greater or lesser degree of skin pigmentation are more vulnerable to the sun’s heat in midsummer, and the heat is associated with skin cancer, then prison guards might be instructed to make a distinction among prison inmates to determine who should be permitted to stay out in the sun or not. Used in any of these and similar ways, there is no injustice or violation of the equal protection clause in the U.S. Constitution.
To discriminate in the second sense involves judgment about prejudice, bias, or hatred. It is not only subjective but also a negative attitude representing an injustice. If the court determines that such discrimination affects jury selection, a prior court trial, or treatment of inmates, as well as the recruitment, training, or promotion of police officers or prison guards, it is certainly not descriptive but prescriptive. In others words, the court is making a moral or legal judgment implying that the action or policy represents an unfair or unjust treatment that should be condemned as illegal, irresponsible, and morally wrong.
If justice is the first virtue of every social institution, as John Rawls has observed, discrimination might well be the first vice that every just social institution forbids by law or morality. For example, as early as 2000 B.C.E. Egyptian rulers had established judicial principles for avoiding discrimination in arbitration, law, and criminal justice. Their magistrates or judges were told, “Treat people you know as if you do not know them … those near you as far away.” The underlying normative principle—justice—is symbolically represented in the sculpture of a blindfolded woman holding a scale in her hands. The image is found at the entrance to the U.S. Supreme Court Building in Washington, D.C., and on the walls of several lower courts and similar legal institutions throughout the United States and other countries that honor the rule of law.
Discrimination Defined
“Discrimination” as used typically within the context of criminal justice does not mean treating people differently in the descriptive sense. There are several instances, such as the example of the prison inmates and summer heat used above, in which different treatment does not mean discrimination. All else being equal, gender-specific restroom accommodations are not considered discriminatory. Treating people differently in these and similar situations do not constitute unjust treatment or a violation of the right to be treated as an equal under the equal protection clause of the Constitution. The typical usage within the context of criminal justice is the prescriptive or normative, where people are treated differently in the absence of a moral or legal justification for doing so.
Moral justifications for treating people differently include measures to ensure equal or fair opportunity for people with certain disadvantages who must function in society. The Americans With Disabilities Act, for example, attempts to provide reasonable accommodation for the handicapped in parking, education, and employment. In the case of affirmative action for women and minorities, the rationale is that centuries of sexual discrimination (sexism) and racial discrimination (racism) have deprived these groups of access to a level playing field in areas where they must compete with white males. Discrimination also manifests as treating people not only differently when it is not warranted but also with prejudice, disrespect, or hatred merely because of their membership in a maligned group such as a race, sex, gender, nationality, culture, or religion.
Kantian Ethics
Kantian arguments against discrimination can be based on the principle of universality or the human dignity principle. In the first principle, Kant argues that you have a moral imperative or an absolute moral obligation to refrain from doing an action if the principle or maxim underlying the action cannot be universalized without conceptually encountering a contradiction or an absurdity. In other words, as a rational person if an individual is not willing that others discriminate against that individual for selfish reasons, then the individual should refrain from discriminating against others for selfish reasons, if they are in a position to do so. Kant’s first principle can be applied like the Golden Rule or its converse in dealing with discrimination. In other words: One should not discriminate against others if they would not be pleased if others were to discriminate against them.
The second principle of Kantian ethics determines the rightness or wrongness of an action by asking whether it will promote or undermine human dignity or respect for all persons. As Kant puts it, “Never treat anyone, including you, as a mere means, but always as an end.” In discrimination, the victim is not treated with dignity but as a mere means or a tool for satisfying others or their interests. By Kantian standards black slavery represents the worst form of anti-black racism and discrimination. The reason is that the black slave was disrespected and depicted or treated as subhuman with little or no intelligence and fit only to do unskilled or menial jobs assigned and supervised by the more intelligent and morally superior white master. Similarly, discrimination against women is wrong to the extent that women are disrespected and treated like inferior beings that don’t deserve to be as respected as men are.
Justice as Fairness
Aristotle maintained that justice occurs only when equals are treated unequally and unequals are treated equally. In other words, Aristotle is defending proportional equality—the principle that like cases should be treated alike just as unlike cases should be treated differently in proportion to the relevant differences. As noted above, to discriminate is to treat people differently when there is no morally relevant or good reason for doing so. Since race and sex are generally (or with few exceptions) irrelevant to the performance of a job, treating minorities or women differently usually constitutes unequal treatment against people who should be treated alike. Therefore such treatments are unjust or morally wrong.
John Rawls’s theory of justice as fairness also provides one of the best arguments against discrimination in modern times. Rawls’s second principle of justice, the principle of difference, states: “Social and economic inequalities are to be arranged so that they are attached to offices and positions open to all under conditions of fairness and equality of opportunity.” By this principle racial or sexual discrimination would be unjust since the victims would be denied one of the most fundamental of all human rights, the right to equal opportunity for self-development.
Utilitarianism
Unlike Kantians, utilitarians determine the rightness or wrongness of an action or policy on the actual or potential consequences of the action or policy for the well-being of society as a whole. Economists have found that when racial discrimination in employment is combined with discrimination in education, housing, medical care, and other areas of life, the result is poverty with all kinds of associated social evils, including alcoholism, drug abuse, violence, armed robbery, and hooliganism.
Similarly, the negative consequences of sexism not only denies women of their rights but also creates other social problems for society including welfare dependency, unstable marriages, higher rates of divorce, and more maladjusted children from broken homes. The socioeconomic burdens of discrimination on society get worse when discrimination in education and the workplace are extended to the handicapped, immigrants, ex-convicts, veterans, and other vulnerable groups, who then may become dependant on public assistance or turn to criminal activity instead of becoming productive members of society.
Different Forms of Discrimination
Age discrimination occurs mostly when older employees in a company are replaced by younger employees, not because they are too old to work but for other reasons employers consider beneficial to them or to the company. Older employees tend to be more expensive to compensate in terms of salary and benefits than younger workers who are starting out with smaller paychecks and little or no benefits, including health insurance. Congress passed the Age Discrimination in Employment Act (IDEA) in 1967 to prohibit employers from discriminating in the hiring, promotion, discharge, compensation, or other terms and conditions of employment because of age. Where a company has a bona fide occupational qualification or a bona fide seniority system and similar considerations, exceptions can be made to the enforcement of IDEA.
Sexism, or discrimination on the basis of sex, was very common before the women’s movement in the middle of the 20th century and still exists in significant measures in the United States. Title VII was issued in 1964 to prohibit discrimination against anyone just because the person is a male or female. Too many women were losing their jobs because they took time off for pregnancies and childbirth. To counter this blatant discrimination, Congress passed the Pregnancy Discrimination Act in 1978 as an amendment to Title VII to protect women’s jobs and to ensure that they are given reasonable accommodation as needed for recuperation.
U.S. courts have also included sexual harassment as a form of sexual discrimination outlawed by Title VII. This includes unwarranted sexual advances or inappropriate touching and statements especially about pornographic materials that make women uncomfortable. Also recognizing that denying employment benefits to homosexuals constitutes a form of sexual or gender discrimination, some states have taken or are considering taking legal measures to protect homosexuals from discrimination and to legalize same-sex marriages.
Racial Discrimination
For a country whose history includes 400 years of black slavery, followed by another hundred years of segregation until the 1960s, when the civil rights acts were passed, the election of a black president is a major milestone. Nevertheless, if the data collected by the Southern Poverty Law Center are to be believed, racist hate groups have increased above 400 percent since Barack Obama became president in 2008. Racism at the personal and institutional levels dies hard, and in spite of this monumental achievement, it is undeniable that the problem of racism is still prevalent within several U.S. institutions, including law enforcement and the criminal justice system.
The examples in these institutions include allegations of racial profiling and the frequency and intensity of police brutality toward African Americans. This issue reached the height of national and international consciousness when on March 3, 1991, six baton-wielding mostly white Los Angeles police were caught on videotape brutally beating an unarmed black man, Rodney King, after a high-speed chase. The full video used in court showed he received 52 baton blows and six kicks, and television station KCET played an enhanced audio version of the video in which a caucasian police officer was heard using the N-word: “Nigger, hands behind your back—your back.” Most blacks as well as whites were outraged by this unconscionable display of man’s inhumanity to an unarmed fellow human being in a nation of laws.
Consequently, it was hoped that when the case went to court and all the tapes were shown the jury would find all or most of the indicted police officers guilty of assault or worse for the sake of justice and peace. Such hopes were quickly dashed when an all-white jury acquitted almost all the police officers. Two of the police officers were charged with lesser charges, and after a jury deadlock the rest were released to walk out free. The weight of this double-racial discrimination sent shock waves throughout the country and especially Los Angeles, where riots resulted in 7,000 fires, 53 deaths, and injuries to 2,300 people. The financial cost of the riots in terms of homes, stores, and other businesses looted or burned reached nearly $1 billion.
The most racially charged and controversial form of discrimination is not police brutality, however, but how African Americans are treated unjustly in adjudication and imposition of the death penalty, especially when the victim is white. Many credible studies including ones from Harvard and Princeton have demonstrated that capital punishment in the United States is disproportionately applied to minorities, and in particular African Americans. Additionally, blacks who kill whites have received the death penalty 15 times on average for every time a white person has killed a black person. What is more, executions in U.S. states since 1976 have concentrated mostly in the South where most blacks live. Given that approximately 80 percent of all executions occur in the South it is almost impossible to explain the wide gap between the execution of black prisoners and white prisoners without referencing racial discrimination.
Data on the disproportional use of capital punishment in such a two-tiered system not only undermine the legitimacy of the death penalty, but also undermine the integrity of the whole judicial system at the heart of a country highly respected mostly for its democratic values and institutions. The degree of racial discrimination is not diminished whether one defends capital punishment as the best method for general or a special deterrence, or as a form of retributive justice since what is at stake is unequal treatment based on race.
Bibliography:
- Barcalow, Emmett. Moral Philosophy: Theories and Issues. Belmont, CA: Thomson, 2007.
- Beavera, Kevin M., Matt DeLisi, John Paul Wright, Brian B. Boutwell, J. C. Barnes, and Michael G. Vaughn. “No Evidence of Racial Discrimination in Criminal Justice Processing: Results From the National Longitudinal Study of Adolescent Health.” Personality and Individual Differences, v.55/1 (2013).
- Belknap, Joanne. The Invisible Woman: Gender, Crime, and Justice. Belmont, CA: Wadsworth,
- Boxhill, Bernard. Blacks and Social Justice. Totowa, NJ: Rowman and Littlefield, 1982.
- Milovanovic, D. and K. Russell, eds. Petit Apartheid in the U.S. Criminal Justice System: The Dark Figure of Racism. Durham, NC: Carolina Academic Press, 2001.
- Rawls, John. A Theory of Justice. Cambridge, MA: Harvard University Press, 1971.
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