By Dr. Matt Flannigan

When the Human Rights Act was passed in 1993 I supported the writing of non-discrimination rights into law. At that time, I, like many New Zealanders, believed that people had a right to not be discriminated against that the government should protect that right. Since then, reflecting on the issue has led me to change my mind. I am now inclined to think that non-discrimination rights do not exist – they are “nonsense on stilts.” Laws which purport to recognize and protect them are recognizing and protecting something that does not exist.

My position now is that discrimination is not wrong, it is morally neutral. It is justified and reasonable to discriminate on certain grounds in certain contexts, and it is unjustified to do so in other contexts. When it is unjustified, what makes it so are factors that have nothing to do with discrimination; these factors would be problematic if applied equally.

Before elaborating my reasons for being skeptical about such rights, let us be clear as to what denying non-discrimination rights does not mean. It does not mean that it is permissible for people to refuse to serve ethnic minorities because one holds to false stereotypes and has unwarranted hatred toward those minorities. Nor does it mean I support depriving women or African Americans of the vote. Likewise, I do not support racist lynchings or gay bashings.

A skeptic about anti-discrimination rights can oppose all these things and still not be committed to supporting the existence of anti-discrimination rights. All that is entailed by my skepticism is that these things are not wrong because they violate a right to not discriminate, and it’s clear to me that they are wrong for other reasons.

Discriminating against minorities in the manner suggested above is wrong because we have duties to not stereotype and treat people with contempt.If we treated everyone equally in this way it would still be wrong. Similarly, racist lynchings are wrong because they involve kidnapping, assault and homicide. If people were equal-opportunity lynchers who indiscriminately lynched people of all races, sexes, lifestyles and degrees of ability, it would still be wrong for them to do so. Depriving people of the vote is wrong because people have a right to vote; the right is not attached to sex or race, and so on. The point is that the wrongness of these sorts of practices can be adequately explained, and I think is more plausibly explained without recourse to an alleged right to not be discriminated against. An appeal to “discrimination” misdiagnoses the moral problems with the action complained of.

Why Discrimination is Not Wrong

It is not wrong to discriminate. To discriminate against one person in favor of another is to treat the former less favorably than the latter. The problem is that, so defined, discrimination is clearly not wrong. In fact, discrimination is essential to any moral thinking at all.To make a moral judgement condemning a particular action involves adopting a less favorable stance toward those who perform that action. We condemn particular actions, and if a person doing those actions lacks an adequate excuse we blame and censure that person for what he or she did.We expect the person to feel guilty and to make appropriate apology and reparations. On the other hand, to judge an action is right is to treat the person who performs the action favorably. We do not censure or blame or condemn the person who does the favorable action, we condone that person’s actions and offer praise. Ian Hinkfuss notes, “The whole idea is to provide a rationale for discrimination in favor of certain sorts of acts, people and things are against other sorts of acts, people and things.”This is particularly obvious when we are dealing with issues of justice. In administering justice we discriminate against the guilty in favor of the innocent. To treat the innocent the same as the guilty or the guilty the same as the innocent would prima facie be to engage in injustice. Once these points are realized, the idea that it is wrong to discriminate or that justice requires we not discriminate prove to be incoherent.

Making judgments about what is just and right involves discrimination, qualifying the duty to not discriminate.So, contrary to popular slogans, discrimination cannot be wrong, at least not without significant qualification. A person may object that I am attacking a straw man here as no one says discrimination per se is wrong or unjust; what is alleged is that it is wrong to discriminate on certain grounds. New Zealand Law, for example, singles out discrimination on the grounds of sex, race, age, disability, marital status, ethical belief,employment status, family status, color, ethnic origin and religion as being unlawful.Discrimination is permitted on all other grounds.

The first thing to note about this is that by limiting the wrongness of discrimination to these grounds the proponent of discrimination rights seems to concede that a person can discriminate on any other ground. So a photographer, for example, can lawfully refuse to be a wedding photographer if the couple have a bad haircut or they are 6 feet tall, but is in breach of the law if the basis for the refusal is disagreement with same-sex marriage and a desire to not want to associate or assist with such ceremonies.Similarly, a shop keeper can refuse to serve a person because they dislike a person’s eye color, but they cannot discriminate on the basis of the person’s skin color. That seems arbitrary and ad hoc. Surely we need a basis for thinking these particular grounds violate a person’s rights and the others do not.

A more pressing problem is that there are counter-examples suggesting that discrimination, even on these grounds, is not wrong. Consider the following two cases:

1. The film-makers of “Once Were Warriors” are hiring someone to play the character Jake the Muss. Because Jake the Muss is, according to the script, a muscled Maori male, they offer the role to Temura Morriston. They do not offer the part to a talented slim-built Chinese actor.

B.A film-maker refuses to hire a Chinese female actor for a role as a Chinese woman because he considers Chinese to be an inferior race and all Chinese to be criminals.

It is clear to me that the actions of the film-maker in B are reprehensible, while the actions of the film-maker in A are unobjectionable. Yet both cases involve discrimination on the grounds of race. This suggests that what is crucial is not the discrimination itself but the reasons for the discrimination.

Some argue that cases like that elaborated in A suggest the issue, at least with regards to employment discrimination, is relevance for the job.Employment discrimination on the basis of a characteristic is permissible when that characteristic is relevant to the job in question but is wrong when it is not.This seems false. People are often turned down for a job on the basis of how they spoke at the job interview, the way they dressed, the vibe they created or their choice of shoes, yet in many situations none of these things could plausibly have anything to do with relevance to their ability to do the job. Conversely, a person can be turned down for criteria that is relevant to the job, and the discrimination could still be grossly unjust. Suppose,for example, a school committed to the promotion of white supremacist ideology sought to hire a professor to teach students this ideology. Clearly, being a white supremacist would be relevant to performing this job. Yet, surely, the discrimination here is not morally permissible. Employment relevance, therefore, does not seem to be the distinguishing factor.

The use of counter examples like this has led some to propose a value-loaded definition of discrimination. What is wrong is not discrimination per se but wrongful discrimination or unjust discrimination.When someone says discrimination is wrong they mean to refer to wrongful discrimination.This gets the right result in cases A and B above and in the white supremacist case as well. However, it does so by making the claim that “it iswrong to discriminate” into an empty tautology.

It is true, wrongful discrimination is wrong, but that is because it has the property of being wrongful.Anything that has the property of being wrongful is wrong whether it is discrimination or not. Nothing that lacks this property is wrong, even if it’s discrimination. What this response shows is that,in reality, the issue is not discrimination, it is whether the practice is wrong on other grounds. It is the presence or absence of other grounds that determines the moral status of the action, not the fact the action is discriminatory.

I think this is the most sensible thing to say about A and B above. Consider the Chinese actor in B; she is treated appallingly not because she was discriminated against – in this respect he does not differ from Temura Morriston in A. The reason the Chinese actor is wronged is because the filmmaker judges her race to be inferior.The film-maker also judges her to be a criminal without any evidence. We have a duty to not treat human beings in a contemptible way and a duty to not accuse people of crimes without evidence. This is the basis for prohibitions on slander and defamation. It is these factors that make the actions of the film company in B objectionable, not racial discrimination.

It is also clear to me that the wrongness of these actions does not depend on the victims being discriminated against. Suppose, for example, the film company treated every person who applied for a job this way, they treated everyone they came across as inferior and considered every candidate a criminal without any evidence regardless of their race. Would we say that what they did was now somehow better because they did not discriminate? Has the moral problem been fixed because they now treat everyone in this way? It seems not.In fact, arguably their actions are now worse because in B they treated some people objectionably, but now they treat more people this way.

Returning to the examples I mentioned in the opening of this post – racist lynchings and racial segregation. Suppose a society instead implemented random lynchings of anyone regardless of race, or banned everyone from using certain buses. Would we withdraw our condemnation now that discrimination had been eliminated? Or suppose the kind of assault used in gay bashings was perpetuated on both homosexuals and heterosexuals. Would that eliminate discrimination?Would it be more just? Suppose society banned everyone from voting. Would society now be more just because everyone is now being treated in a non-discriminatory manner? The answer to me seems obvious – no.

The issue, then, is the way we treat people, not the fact that we treat them differently. What matters is not discrimination, it is not that some person from a group A was treated less favorably than a member of another group B. The issue is whether we are fulfilling our other duties toward these people and respecting their other rights. This means we do not need to appeal to non-discrimination rights at all; we need merely to exhort people to follow the real duties they do have that do exist and to treat people with appropriate respect. Appeals to non-discrimination rights are, it seems tome, often incoherent, confused and vacuous. They distort moral discourse by hiding the real moral issues in various practices behind a false veneer of equality.