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38 Phil. & Pub. Aff. 143 (2010)
What Is Discrimination?

handle is hein.journals/philadp38 and id is 149 raw text is: SOPHIA MOREAU What Is Discrimination? Anti-discrimination laws are a familiar feature of our legal landscape. In the private sector, they operate in certain contexts-for instance, the provision of goods and services, rental housing, and employment-to prohibit us from singling out individuals for less favorable treatment because of certain traits, such as their race, age, gender, or religion.1 They also sometimes prohibit us from adopting rules or practices that do not explicitly exclude anyone on the basis of a prohibited ground but never- theless have the effect of disproportionately disadvantaging some groups on this basis, such as aerobic capacity tests that exclude women at a higher rate than men.2 And some anti-discrimination laws, such as I am very grateful for the many helpful comments I have received from the Editors of Philosophy & Public Affairs, and from audiences at the Gould School of Law, the McGill Legal Theory Workshop, the NYU Colloquium in Legal, Political and Social Philosophy, the UCLA Legal Theory Workshop, and the University of Toronto Faculty of Law. 1. Some central examples of anti-discrimination legislation in the United States are Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§2000E (2003), the Age Discrimination in Employment Act of 1967, 29 U.S.C. 621-34, and the Fair Housing Act and Fair Housing Amendments Act, 42 U.S.C. §§ 3601-19. In Canada, each province has its own anti- discrimination legislation covering all of the above contexts: see, for a representative example, the Ontario Human Rights Code, R.S.O. 1990, c.H.19. The United Kingdom has recently introduced the Equality Bill (April 24, 2009), a single piece of legislation aimed at harmonizing anti-discrimination laws in the United Kingdom. When passed, it will replace the United Kingdom's current subject-specific anti-discrimination laws, such as the Sex Discrimination Act of 1975 (c.65), the Race Relations Act of 1976 (c.74), and the Disability Discrimination Act of 1995 (c.50). 2. All of the legislation cited above in note 1 also prohibits this second form of discrimi- nation. This form of discrimination does not necessarily involve an exclusionary motive; but the countries cited in note 1 differ somewhat in the ways in which they draw the distinction between it and the kind of discrimination that does. In the United States, the distinction is between disparate treatment, which necessarily involves an exclusionary motive, and disparate impact, which does not, and can be proven simply by adducing statistical evidence that the rule or practice disproportionately burdens the claimant's © 2010 Wiley Periodicals, Inc. Philosophy & Public Affairs 38, no. 2

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