Justifying Justification in Discrimination Law

This chapter seeks to understand the moral reasons for the presence of the element of justification in the law of indirect discrimination.  That exploration of the moral reasons underlying the law should also cast light on the proper scope and grounds for permitted justifications for indirect discrimination.  Although it is not assumed that anti-discrimination law exactly tracks a coherent moral justification, it is expected that the main elements of the legislation can be broadly justified by reference to a coherent moral position.   Having briefly described the legal framework with respect to justification in indirect discrimination, Section I of the chapter sets out the standard explanation of why a broad ground of justification is permitted in indirect discrimination, but not typically in direct discrimination. That standard explanation relies on a proposition that indirect discrimination is not a moral wrong in the same way or to the same extent as direct discrimination.  The chapter then proceeds in Section II to itemise a number of doubts and queries regarding the adequacy of the standard explanation for the presence of a broad ranging justification element in the law of indirect discrimination.  These queries include reasons for doubting that direct and indirect discrimination are so very different with respect to the element of justification.

In the light of those points that undermine the standard explanation of the presence of a justification element in the law of indirect discrimination, Section III proceeds to offer a different explanation of the function of and moral foundation of the element of justification in the laws against discrimination.  This explanation focusses on the point that discrimination laws interfere with the freedom of the alleged discriminator.  It argues that the justification element usually protects the alleged discriminator such as an employer against disproportionate interference with its liberty and other rights.   In most instances, it will be claimed we can best understand the function of the justification element in discrimination laws as seeking a balance between the rights of the parties.  That interpretation of the moral foundations of the law tends to confirm the earlier hypothesis that the element of justification is a vital moral and legal ingredient in both direct and indirect discrimination.