Market discrimination and groups.

• Author: Kelman, Mark

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 social resources--rather than a right.(9) What I mean by that is that those seeking accommodation are making claims on real social resources that compete with all other social-resource claimants; all such claims cannot be met. Thus, any particular plaintiff's claim to have his "right" to accommodation vindicated is subject to claims that his demands are "unreasonable" in the sense that the resources that would have, to be devoted to meeting them could be spent in a better fashion.

I will explore these issues in Part I by, first, attempting to distinguish simple discrimination from nonaccommodation. Next, I will discuss why it might be difficult in both theory and practice to make the clean distinctions I attempt to make, particularly in three classes of cases. I will discuss cases in which customers prefer not to deal with members of a particular subordinated group (so that the employer, if not the bigoted customers, must sacrifice real resources to be more inclusive). I will also review cases in which the net output of the plaintiff might converge over time with the net output of a party who is currently more productive and cases in which it is costly to discover that a particular plaintiff is indeed economically equivalent to a party who has been treated more favorably. I also discuss briefly why simple discrimination claims might be deemed "prior" to accommodation claims.

In Parts II and III, I explore the question of whether the antidiscrimination norm must advert to the existence of social groups. (I will discuss in this regard both what are conventionally thought of as "social identity groups" and what might be called mere statistical aggregates, "groups" with identifiable common characteristics that lack a culture or self-conscious socio-political identity.) Clearly, the political movements that have successfully pressed state entities to use their power to restrict the legal privilege of certain market actors to make "discriminatory" decisions have always been "group"-based. It is common to see coalitions among distinct social groups pressing for antidiscrimination protection--defined by race, gender, ethnicity, sexual orientation, religion, age, or physical or mental disability. But we do not see coalitions of discrete individual consumers and workers seeking protection against such unfair treatment that make no reference to their membership in a disadvantaged social group.

It is not accidental that the political impetus for antidiscrimination legislation comes from movements acting with considerable group self-consciousness. While many of the harms of discrimination will be borne by individuals qua individuals, most people correctly believe that most "unjust" treatment is a result of group-based prejudices. (In this regard, the individualist political activist may say, more or less explicitly, "What is unjust is that I did not get this job, which I deserved, but the cause of this injustice is devaluation of `my kind' by a member of another social group.") Moreover, some of the harms of discrimination are borne by virtue of one's group membership: What is more harmful than not receiving a good or job to which one is entitled as an individual is that the exclusionary practice helps to create a disadvantaged and stigmatized caste.

Though the political impetus behind state efforts to eradicate market discrimination may well come from people acting in a self-consciously group-identified fashion, it is not obvious that the antidiscrimination norms that emerge do or should make reference to the group status of those who claim to be victimized by discrimination. It has become a question of considerable practical import whether one receives antidiscrimination protection only if one has a particular ascriptive identity. First, we now see a good deal of legal struggle played out in the courts (in the disability rights area especially) over whether particular individuals are members of classes that are expressly protected by antidiscrimination statutes. Second, there is a good deal of political struggle, played out in legislatures and referenda, over whether members of certain groups now left uncovered by such laws (especially gays, lesbians, bisexuals, and transgendered persons) ought to be covered.

I use the issues raised most sharply by court cases considering the scope of the coverage of the Americans with Disabilities Act ("ADA") to investigate whether and why norms against market discrimination do or do not need to make reference to "groups." The most critical point in Part II of the essay is that norms forbidding "simple discrimination" could be enforced without any regard to group identity. We could protect each individual against market-irrational treatment, without regard either to whether she was a member of a group that had conventionally been subject to mistreatment or to our ability to determine that the actor who treated her irrationally did so on the basis of a group-based ascriptive...