Extract
Market discrimination and groups.
INTRODUCTION
I have two broad goals in this essay. My first goal is to clarify, refine, and extend an argument I have made on a number of prior occasions that it is appropriate to think of the norm against discrimination in the marketplace as encompassing two quite distinct norms. The first of these norms prohibits "simple discrimination," the second demands "accommodation." Victims of simple discrimination possess what I will describe as a fairly strong, uncircumscribed "right" to be free from such treatment, while those seeking accommodation possess, in essence, a colorable "claim" on social resources that competes with a variety of other claims on such resources, a policy "argument" to be balanced against other prudential arguments.(1) The second and far more central goal is to investigate whether antidiscrimination law ought to be "group-conscious"--whether the norms against discrimination protect individuals qua individuals or protect people only by virtue of their membership in certain social groups.(2) In my view, this question can best be answered if one first recognizes the distinction between simple discrimination and accommodation. My claim is that the norm against "simple discrimination" can reasonably be understood in the first instance as a norm that protects all individuals, without regard to their membership in any particular social group. However, I argue it would nonetheless be imprudent for a variety of reasons to apply the norm to all individuals: That is to say, it may not be prudent to allow every individual, without regard to social group membership, to vindicate his interest in protection from this harm. On the other hand, I will argue that what justifies the very existence of an accommodation norm is the public interest in integrating social groups, and that the norm is therefore impossible to understand properly in the first instance without reference to the existence of social groups. Here is the crux of the first argument, distinguishing norms proscribing simple discrimination from those demanding accommodation. Norms against "simple discrimination" assume that, at least in relationship to the conduct of market actors, putative plaintiffs possess a well-defined entitlement baseline.(3) The empowered market actors (i.e., employers, sellers of goods and services classed as "public accommodations") are duty-bound to treat those putative plaintiffs with whom they deal (job applicants, employees, would-be buyers) no worse than they treat others who are equivalent sources of money. (In this regard, a worker is essentially just her embodied net marginal product, a customer no more than a source of net receipts.)(4) I claim, first, that the "simple discrimination" norm establishes a strong entitlement, what rights theorists would consider a side constraint on the conduct of those who would violate the norm.(5) The "right" is not, in my view, "absolute" in its formation or initial articulation. That is to say, we cannot ascertain whether or not a party ought to have the right to be tree from simple discrimination without engaging in conventional policy balancing, weighing the interests of potential defendants against those of rights claimants.(6) But once that policy balancing is done, we establish a scheme of rights that does not demand case-by-case balancing. Claims of right by one plaintiff should not be balanced against competing claims by other plaintiffs seeking similar treatment; instead, we believe all claims to be free from simple discrimination can be vindicated. Plaintiffs' claims are also not conventionally balanced against claims by defendants that it would be unduly costly to meet the plaintiffs' claims.(7) Nor are their claims (implicitly) balanced against claims that could be made by nonparticipants in the suit that they are more worthy recipients of the "resources" the defendant is expected to "expend."(8) I contrast this norm prohibiting "simple discrimination" with the norm creating "rights" to accommodation. I define the accommodation "right" as a claim to receive treatment from a defendant that disregards some (though not all) differential input costs. (Broadly speaking, entities need not ignore additional input costs that improve service quality for "many" customers or productivity for many workers. Thus, a disabled worker might be entitled to a costly machine that would help her perform the requirements of a job only if the machine would not bolster the productivity of any would-be worker who had access to it.) If the defendant is the owner of a public accommodation, she must ignore the added costs needed to serve a customer. If the defendant is an employer, she must ignore the costs she expends that allow a worker to function in as effective a fashion as workers who produce the same gross output. I will argue that the accommodation norm establishes a distributive claim--what I also described earlier as a policy "argument" on behalf of those seeking socia...See the full content of this document
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