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Notes
42 U.S.C. § 12112(b)(5)(A). There is also a defense that an individual shall not pose a ‘direct threat’ to the health and safety of other individuals in the workplace. See 42 U.S.C. § 12113(b). Speaking broadly, the ADA prohibits disability discrimination by employers, state and local governments, and in areas of public accommodation.
Many legal scholars have argued that a failure to accommodate is a kind of wrongful discrimination. See Samuel Bagenstos, Law and the Contractions of the Disability Rights Movement (New Haven, CT: Yale University Press, 2009); Christine Jolls, ‘Antidiscrimination and Accommodation’, Harvard Law Review 115 (2001), pp. 642–699; and Sharon Rabin-Margalioth, ‘Anti-Discrimination, Accommodation and Universal Mandates – Aren’t They The Same?’, Berkeley Journal of Employment and Labor Law 24 (2003), pp. 111–152.
Michael Ashley Stein, ‘The Law and Economics of Disability Accommodations’, 53 Duke Law Journal 79 (2003).
Conventions of the Rights of Persons with Disabilities (Dec 18, 2007), Art 2.
42 U.S.C § 12112(B)(5).
For example, see Deborah Helleman, When Is Discrimination Wrong? (Cambridge, MA: Harvard University Press, 2008), Deborah Hellman & Sophia Moreau, (eds). Philosophical Foundations of Discrimination Law (New York, NY: Oxford University Press, 2013), Kasper Lippert-Rasmussen, Born Free and Equal? (New York, NY: Oxford University Press, 2014), Benjamin Eidson, Discrimination and Disrespect (New York, NY: Oxford University Press, 2015), Kasper Lippert-Rasmussen (ed.) The Routledge Handbook of the Ethics of Discrimination (New York, NY: Routledge, 2018).
Lippert-Rasmussen, Born Free and Equal?, pp. 30–36.
I will assume, for the sake of argument, that each of these theories is a monistic account and it is attempting to establish a necessary and sufficient criterion for wrongful discrimination. This means I will set aside the possibility that some or all of these theories ought to form part of a pluralistic theory of wrongful discrimination.
This methodology is found in many articles concerning wrongful discrimination. See Lippert-Rasmussen, Born Free and Equal; Adam Slavny and Tom Parr, ‘Harmless Discrimination’, Legal Theory 21 (2015): 100–114; Erin Beeghly, ‘Discrimination and Disrespect’, in Lippert-Rasmussen (ed.) The Routledge Handbook of the Ethics of Discrimination (New York, NY: Routledge, 2018): 83–96.
Larry Alexander, ‘What Makes Wrongful Discrimination Wrong? Biases, Preferences, Stereotypes, and Proxies’, University of Pennsylvania Law Review 141 (1) (1992), pp 149–219 at 159.
Importantly, discrimination can be wrongful in a couple of ways. First, it may be wrong because of a conscious mental belief or when a person is not consciously aware of her prejudicial views. In the latter case of unconscious prejudice, a person may be held morally accountable because she may still be blameworthy for having this bias and acting on it. Second, an act may be wrong if the discriminator’s act provides evidence of a disrespectful mental state, such when a public performance gives one reason to link the act to a disrespectful mental state.
See Dana Dunn, The Social Psychology of Disability (New York, NY: Oxford University Press, 2015); For more on disability, misrecognition and social status, see Jeffrey M. Brown, ‘Relational Equality and Disability Injustice’, Journal of Moral Philosophy Vol. 16, No. 3 (2019): 327–357; David Wasserman and Sean Aas, ‘Discrimination and Disability’, in Lippert-Rasmussen (ed.) The Routledge Handbook of the Ethics of Discrimination (New York, NY: Routledge 2018), p. 231–242; Elizabeth Barnes, The Minority Body (Oxford: Oxford University Press 2016).
My point here is not to deny that biological and psychological properties may cause social disadvantage in some contexts. The social model of disability, however, has traditionally emphasized the prominence of social barriers in disability disadvantage. The social model of disability has been well-defended in the literature. For a classic defense of the social model of disability in philosophy, see Anita Silvers, ‘Formal Justice’ in Disability, Difference, Discrimination (Lanham, Maryland: Rowman & Littlefield, 1998), pp. 13–146.
See City of Los Angeles Department of Water & Power v. Manhart 435 U.S. 702 (1978); International Union v. Johnson Controls, Inc. 499. U.S. 187 (1991).
Samuel Bagenstos, Law and the Contractions of the Disability Rights Movement (New Haven, CT: Yale University Press, 2009), p. 59.
See Bagenstos, Law and the Contradictions of the Disability Rights Movement; Fred Pincus, ‘Discrimination Comes in Many Forms: Individual, Institution, and Structural’, The American Behavior Scientist 40 (2), pp. 182–194.
Harlan Hahn, ‘Accommodations and the ADA: Unreasonable Bias or Biased Reasoning?’ 21 Berkeley Journal of Employment. & Labor Law 166, 189–190 (2000).
T.M. Scanlon, Moral Dimensions: Permissibility, Meaning, Blame (Cambridge, MA: Harvard University Press, 2008), p. 72.
Hellman, When is Discrimination Wrong?, p. 35.
Hellman, When is Discrimination Wrong?, pp. 26–29.
See The World Report on Disability (Geneva, Switzerland: WHO Press, 2011); Kim E. Nielsen, A Disability History of the United States (Boston, MA: Beacon Press, 2012); James Charlton, Nothing About Us Without Us: Disability Oppression and Empowerment (Los Angles, University of California Press, 1998)
This point has been made in various ways by several philosophers and disability scholars. See Linda Barclay, ‘Natural Deficiency or Social Oppression? The Capabilities Approach to Justice for People with Disabilities’, Journal of Moral Philosophy 9 (2012): 500–520; Guy Kahane and Julian Savulescu, ‘The Welfarist Account of Disability’, in Adam Cureton and Kimberley Brownlee (eds.) Disability and Disadvantage (New York, NY: Oxford University Press, 2009), pp. 14–53.
See ADA Title I EEOC Interpretive Guideline, 29 C.F.R. § 1630; see also U.S. Airway v. Barnett, 535 U.S. 391, 397 (2002). In Barnett, the Court argued, “The Act requires … ‘reasonable accommodations’ that are needed for those with disabilities to obtain the same workplace opportunities that those without disabilities automatically enjoy.” (397).
Scanlon accepts this as true because he seems to think that expressive theories of wrongful discrimination are a sufficient, but not necessary for wrongful discrimination (Moral Dimensions, p. 73). He argues that expressive theories explain why discriminatory actions are often wrong.
Someone may object that my criticism above applies against an expressive theory generally, but not against Hellman’s specific expressivist argument. She could reply, for example, that my objection is misplaced because reasonable accommodations and direct discrimination are different kinds of wrongs. She recently argued that direct discrimination demeans and is thus, wrongful, but indirect discrimination does not always demean. Instead, indirect discrimination is wrong for other reasons, such as how it compounds past injustice. Deborah Hellman, ‘Indirect Discrimination and the Duty to Avoid Compounding Injustice’, in Hugh Collins and Tarunabh Khaitan (eds.) Foundations of Indirect Discrimination Law (Oxford: Hart Publishing, 2018), pp. 105–121. Hellman could make a similar point here. She could argue that denials of reasonable accommodations do not always demean, and are thus, not wrongful discrimination, but are wrong for some other reason. I think if Hellman made such an argument, it would be unpersuasive for two reasons that I do not have the space to explore in detail. First, many legal scholars think that reasonable accommodations are a form of wrongful discrimination that is similar to direct discrimination. Thus, there are reasons to believe that reasonable accommodations and direct discrimination are wrong for similar reasons. If Hellman denies this, then she has the burden to explain how her theory informs the legal concept of disability discrimination or her theory looks to have little relevance for our legal doctrine and practices. Second, if direct discrimination and reasonable accommodation mandates are both principally concerned with combating types of differential treatments that deny the equal moral worth of the discriminee, it seems ad hoc to suggest there ought to be one theory for the wrongness of direct discrimination and another approach for reasonable accommodations.
Kasper Lippert-Rasmussen, ‘Discrimination’, in The Oxford Handbook of Distributive Justice, Serena Olsabertti (ed.) (New York, NY: Oxford University Press, 2018), pp. 479–497. He calls this the ‘closeness thesis’ (p. 482). For theories that link the wrongfulness of discrimination to violations of equal opportunity, see Shlomi Segall, ‘What’s so Bad about Discrimination?’, Utilitas 24 (1) (2012): 83–100, and Carl Knight, ‘Discrimination and Equality of Opportunity’, in The Routledge Handbook of Ethics of Discrimination (2018): 140–150.
I am not suggesting this is Rawls’ view about his principle. See John Rawls, A Theory of Justice, Revised Edition (Cambridge, MA: Belknap Press of Harvard University Press, 1999)
Wasserman and Aas, ‘Discrimination and Disability’, pp. 235.
Lippert-Rasmussen, ‘Discrimination’ (2018), p. 483. My point here is not to deny that if we knew the correct theory of distributive justice, then some cases of differential treatment might be wrong because of features identified by the relevant theory of distributive justice. I will return to this point in the next section.
While harm-based accounts are consequence focused, they are not necessarily consequentialist. They do not necessarily entail a general duty to bring about the greatest amount of net goodness.
I am following Lippert-Rasmussen’s harm-based account here: Born Free and Equal, pp. 154–155. His harm-based account of wrongful discrimination assumes that harm is best understood counterfactually. I will set aside the possibility that someone may argue that harm is best understood non-comparably.
My discussion here draws from Lippert-Rasmussen, Born Free and Equal, pp. 153–160.
See Adam Slavny and Tom Parr, ‘Harmless Discrimination’; Benjamin Eidelson, Discrimination and Disrespect.
This example is similar to Slavny and Parr’s capricious teacher example: ‘Harmless Discrimination’, p. 107.
Eidelson develops an account of wrongful discrimination based on a deliberative failure to treat an agent with recognition respect. (Discrimination and Disrespect, Chapter 3).
For further discussion, see Slanvy and Parr, Harmless Discrimination and Richard Arneson, ‘Discrimination and Harm’, in Lippert-Rasmussen (ed.) The Routledge Handbook of the Ethics of Discrimination (New York, NY: Routledge, 2018), pp. 151–163.
There may be a concern that for my argument to work against harm-based theories, I need to affirm the consequent. My argument generally, and in this section relies, in part, on an inference to the best explanation, so any inference I am making is not obviously fallacious. I am asking if whether my conclusion, if correct, would best explain the premises. Specifically, I am considering possible explanations for the theory that best explains why disability discrimination is wrongful. When we consider a series of cases we identify as wrongful discrimination, the correct account ought to be able to explain what features make them wrong. As my Dr. Gruff example illustrates, I am trying to show that the harm-based account is not sufficient to capture all plausible cases of wrongful disability discrimination because it cannot account for harmless discrimination. I would like to thank the referee for pushing me to clarify this point.
My argument presupposes that the relevant cases of wrongful discrimination are wrong for reasons other than harm. Someone may object that while there may be an act of wrongful discrimination that is wrong for reasons having nothing to do with harm, none of those cases concern a failure to accommodate. I do not believe that such an objection holds merit. For example, it seems plausible that a person could be denied an accommodation, and in virtue of such denial, her life is made all things considered better overall. For example, a denial could push a person to focus her goals on a different pursuit or profession. While the denial is not all things considered harmful, it still may be the case that the denial of accommodation was morally disrespectful. I want to thank the anonymous referee for pushing me on this issue.
For some recent work on relational equality, see Elizabeth Anderson, ‘What is the Point of Equality?’ Ethics 109 (1999): 287–337; Samuel Scheffler, ‘What is Egalitarianism?’, Philosophy & Public Affairs 31, no 1 (2003): 5–39 and ‘The Practice of Equality’ in Carina Fourie, et al. (eds.) Social Equality: On What it Means to Be Equal (Oxford, UK: Oxford University Press, 2015): 21–44; Christian Schemmel, ‘Distributive and Relational Equality’, Politics, Philosophy & Economics 11(2) (2011): 123–148.
See Anderson’s ‘What the Point of Equality?’
Will Kymlicka suggests that most theories of justice share an ‘egalitarian plateau’. Contemporary Political Philosophy: An Introduction 2nd Edition (New York, NY: Oxford Univ. Press, 2002), p. 4.
Anderson, ‘What’s the Point of Equality?’ p. 289.
See Anderson, ‘What’s the Point of Equality?’
Anderson, ‘What’s the Point of Equality?’ p. 326.
See Scheffler, ‘The Practice of Equality’.
Scheffler, ‘The Practice of Equality’, pp. 25.
Scheffler, ‘The Practice of Equality’, (ibid).
See Daniel Viehoff, ‘Democratic Equality and Political Authority’, Philosophy & Public Affairs 42, no. 4 (2014): 337–375; Scheffler, ‘The Practice of Equality’, pp. 25
Social hierarchies may cause many different kinds of harms. For example, they may corrupt the moral character of those who benefit from such hierarchies. See John Stuart Mill’s The Subjection of Women (1869). Or they may undermine the overall economic efficiency of society.
T.M. Scanlon, Why Does Inequality Matter (New York, NY: Oxford University Press, 2018), p. 26.
This can be understood in the Rawlsian sense of damaging a person’s own sense of value, i.e., that one’s own conception of the good and their rational life plan is worth carrying out (Theory of Justice, Revised Edition, p. 386).
Relational egalitarian accounts will have a similar challenge as the harm-based account in identifying the metric and baseline for harm. It is beyond the scope of this paper to address these challenges.
John Rawls, Lectures on the History of Political Philosophy (Cambridge, MA: Belknap Press of Harvard University Press, 2007), p. 144.
A Hohfeldian power has a second-order character in the sense that it can be cashed out in a specific kind first order right. See William Edmundson, An Introduction to Rights, 2nd Edition (Cambridge: Cambridge Univ. Press, 2012), pp. 71–76.
WHO, World Report on Disability; Dana Dunn, The Social Psychology of Disability. For a philosophical argument concerning disability and social hierarchy, see Brown, ‘Relational Equality and Disability Injustice’.
See WHO, World Report on Disability; Bureau of Labor Statistics 2016, ‘Persons with a Disability: Labor Force Characteristics – 2015’ Accessed April 2019 (https://www.bls.gov/news.release/achives/disbl_06212016.pdf).
I want to thank the anonymous referee for pushing me on this matter. I am not suggesting a person is always treated as a social inferior when an accommodation is denied. My claim is that it may be presumptively wrongful discrimination. Whether the act is all things considered wrongful will depend on countervailing considerations, such as whether the accommodation is an undue burden.
You don’t have to endorse relational egalitarian principles to accept this conclusion. In U.S. v. Virginia, the SCOTUS held statistical generalizations about women do not justify denying woman opportunities whose talents and capacities place them outside of that generalization. U.S. v. Virginia 518 U.S. 525 (1996).
For more on statistical facts, groups and justification for differential treatment, see Scanlon, Why Does Inequality Matter, p. 27; Enoch, Specter, and Fisher, ‘Statistical Evidence, Sensitivity, and the Legal Value of Knowledge’, Philosophy and Public Affairs, 40 (2012): 197–224.
See Anderson, ‘What’s the Point of Equality?’; Scheffler, ‘The Practice of Equality’.
For more on a relational egalitarian contribution principle and ableism, see Brown, ‘Relational Equality and Disability Injustice’, pp. 344–347.
I would like to thank the anonymous referee for pushing me to address this objection.
Segall, What’s So Bad About Discrimination?, p. 90.
See Rawls, A Theory of Justice.
Moreau, ‘Discrimination and Subordination’, pp. 121. Moreau thinks that discrimination is different than other moral wrongs, like murder or breaking a promise. She argues that an account of the wrongness of discrimination could not be accurate if it does not accord with at least some features of anti-discrimination laws.
527 U.S. 471 (1999).
527 U.S. at 488.
Samuel Bagenstos, Law and the Contractions of the Disability Rights Movement; Ruth Colker, When Is Separate Unequal: A Disability Perspective (Cambridge, MA: Cambridge University Press, 2009); Michael Ashely Stein, ‘Same Struggle, Different Difference: ADA, Accommodations as Antidiscrimination’ University of Pennsylvania Law Review Vol. 153 No. 2 (2004: 579–671).
Bagenstos, Law and the Contradictions of the Disability Rights Movement, pp. 68–69.
I want to thank Bailie Peterson, Zach Hoskins, and Krista Thomason for their helpful suggestions on earlier drafts of this paper. I would also like to thank the anonymous referee for helpful and critical feedback.
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Brown, J.M. What Makes Disability Discrimination Wrong?. Law and Philos 40, 1–31 (2021). https://doi.org/10.1007/s10982-020-09384-5
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DOI: https://doi.org/10.1007/s10982-020-09384-5