A Theory of Discrimination Law

Abstract

Most laypersons think of discrimination as an act motivated by prejudice against a minority group. The law, in most cases, prohibits as discriminatory a much broader category of actions. It also encourages or demands affirmative action. This tension calls for the justification of the legal approach to the regulation of discrimination. Providing this justification, while also explaining the law in a coherent and conceptually clear manner, is the main objective of this book. My argument is that discrimination law seeks to close substantial, pervasive, and abiding advantage gaps between groups whose membership is valuable or at least value-neutral. This objective is justified because such advantage gaps are a serious impediment to human freedom. In seeking this objective, the law ensures that its fault-sensitive mandatory duties are imposed only on duty-bearers who have a relative public character, and who exercise significant control over access to limited opportunities. Discrimination law is a modest attempt to make us free in one respect: that our access to the basic goods that make us free is not unduly constrained because of our blameless membership of relatively disadvantaged groups.