Why ‘Indirect Discrimination’ Is a Useful Legal but Not a Useful Moral Concept

Abstract

A policy (practice, act, etc.) indirectly discriminates against a group, G, if, and only if: (1) it does not reflect an objectionable mental state regarding the members of G; (2) it disadvantages members of G; (3) the disadvantages are disproportionate; and (4) G is a socially salient group. I argue that indirect discrimination is not non-instrumentally morally wrong. Clearly, if it were, that would be because it harms members of G disproportionately, i.e., in virtue of features (2) and (3). Harming members of a group disproportionately does appear non-instrumentally wrong. But it is not easy to provide a plausible explanation for the kind of harm and disproportionality involved here that vindicates this initial appearance. This does not mean the concept of indirect discrimination should be jettisoned. It was originally a legal concept, and in closing I briefly suggest that in law it plays a valuable role, even if it is not a genuine moral category. Legal prohibition is an unreliable guide to what is morally wrong, but it is not supposed to be that anyway.