ABSTRACT
Discrimination is not a static phenomenon. It is changeable, and adapts to new circumstances; under attack it becomes subtle, even elusive. Its resilience rests on the self-perpetuating nature of power and on the hard-wired implicit biases carried even by those of us who cognitively abhor discrimination (Bagenstos 2007; Shin 2010). The prohibition on indirect discrimination (or ‘disparate impact’, as it is referred to in the United States) is, in some ways, the law playing catch up. As it responds to the various, and evolving, manifestations of discrimination in our society—highlighted as much through singular cases brought by pioneering litigants and innovative lawyers as through legislative change following organized political protects—the law has often led the popular understanding of what counts as discrimination, and our moral aversion to its evolving forms (Khaitan 2015, 1ff; cf. Eidelson 2015, 4–5). This is especially true of indirect discrimination, which continues to arouse the suspicions of non-lawyers; so much so that Eidelson doubts whether many cases of indirect discrimination involve any ‘discrimination’ at all (Eidelson 2015, chap. 2: Eidelson does not necessarily challenge the legitimacy of prohibiting indirect discrimination, only whether it is ‘discrimination’ properly so-called). Given the salience of law in developing the concept, this chapter will focus almost exclusively on the legal understanding of indirect discrimination. This is not meant to suggest that there is no viable conception of indirect discrimination outside of law, or that such conceptions are unimportant (Cook 2015; Thomsen 2015). Furthermore, there are good reasons why laws should not seek to enforce all our moral duties to their full extent. There will, therefore, necessarily be a gap between the legal understanding of indirect discrimination and a moral account of the same. The claims in this chapter do not therefore offer an exhaustive understanding of indirect discrimination as a general concept, but—given the centrality of law in its discovery and evolution—we can safely expect these claims to be more than merely relevant to a more general account as well. As Moreau explains:
a focus on the law, far from muddying our moral thoughts, can help to clarify them…Whatever kind of injustice is involved in discrimination, it seems true that our understanding of it has been deeply shaped by our legal regimes for regulating it.
(Moreau 2016, 517)