Discrimination as an individual wrong

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Abstract

This article argues that anti-discrimination rights are individual rights to be free from wrongful treatment and do not directly advance group-based interests or prohibit group-based harm. In light of this, a number of recurring accounts of the wrong of discrimination, particularly the wrong of indirect discrimination, are unsustainable. Claims that indirect discrimination is concerned with harm that is done to social groups or that laws prohibiting indirect discrimination seek to reduce or eliminate advantage gaps between social groups must be rejected as inaccurate. While principles of non-discrimination and principles of affirmative action often operate harmoniously to foster respect for the moral equality of persons, they each have a general affinity with distinct ethical traditions: deontology and teleology respectively. As such, we should conclude that indirect discrimination provisions are examples of formal and not substantive equality. Where rights to non-discrimination conflict with telic equality goals, UK law protects the rights of the individual.
Original languageEnglish
Pages (from-to)901-929
Number of pages29
JournalOxford Journal of Legal Studies
Volume39
Issue number4
DOIs
Publication statusPublished - 22 Aug 2019

Keywords

  • discrimination
  • indirect discrimination
  • formal equality
  • substantive equality
  • affirmative action

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