Huma - Lecture 4 PDF

**An Introduction to Contemporary Theories of Discrimination (1)** Reading : Supreme Court decision **Griggs v. Duke Power Company** (1971) (concept of discrimination and preconditions; typology of discriminations (direct/indirect; intentional/unconscious); measuring discrimination) **Introductio...

**An Introduction to Contemporary Theories of Discrimination (1)** Reading : Supreme Court decision **Griggs v. Duke Power Company** (1971) (concept of discrimination and preconditions; typology of discriminations (direct/indirect; intentional/unconscious); measuring discrimination) **Introduction** **A) A reminder on racism (ideological or attitudinal)** → Understanding of racism as an all encompassing system → Holistic assessment of racism doesn't account for fine grain analysis It will be discussed in the ideological sense of the term or the attitudinal sense of the term: - - Conversely, there are instances of race-based discrimination that may exist, but they may not qualify within either of these senses of the term. **B) The pre-conditions of "discrimination" - it's not timeless** **1) Equality as a public value** This is the first pre-condition. To the extent that discrimination is taken to be immoral, illegitimate, or illegal, a conception of equality must be endorsed in reference to which these judgements will be made. **2) Scarcity** This is the second precondition. There must be some consistent scarcity of the goods to be distributed amongst individuals. At the end of the competition, there will be winners or losers - not every player will get what he wants. **3) Violation of some background normative principle** This is the third pre-condition. There must be some kind of background, broadly endorsed, normative principle that is supposed to be regulating the distribution of the goods in the given domain. Someone that was dumped was harmed, but they're not being discriminated against. However, if she finds out that the person she's dumped was of Arab ancestry, this would be harm - not discrimination. This isn't discrimination because there's no principle that she ought to be complying with. She's allowed to dump someone for whatever reason she wanted. At the same time, if the racist partner was also the boss of the person they've dumped and fires them as well, it is discrimination. **4) Rejection of the libertarian conception of the state** This is the fourth pre-condition. There must be an authority that is legitimate to intervene whenever discrimination occurs. If we are living under a libertarian state, then individuals won't have any incentives to voice discrimination-related grievances. **I- Defining Discrimination** **A) The lack of a legal definition** If you look at the core human rights documents, you will see that those documents simply list the grounds on which discrimination is being prohibited. They don't state what discrimination is. Just like in the case of equality, a purely legal approach won't suffice. **B) Discrimination: descriptive or evaluative?** There are 2 main options to define discrimination : - - The moralized view of discrimination is dominant today and almost hegemonic in legal settings. The descriptive concept of discrimination prevails within the community of philosophers. **C) The comparative advantages of the descriptive understanding** It makes it possible to inquire whether instances of racial discrimination are also racist discrimination. If you consider **affirmative action** and are committed to the idea that racism is wrong intrinsically, you have to argue that affirmative action is not a type of racism. However, there is some sort of formal similarity between race-based affirmative action and race-based discrimination. This serves as a morally neutral definition of discrimination. Consider the South African Constitution and Bill of Rights - in Section 9 of the Bill of Rights, the states are not allowed to unfairly discriminate against certain groups on legal grounds. There's a distinction between "fair" and "unfair" discrimination. **D) Discrimination as a practice imposing a relative disadvantage on individuals based on perceived membership in a salient social group** Discrimination is an empirically identifiable behavior that influences the distribution of scarce goods. It is a set of practices, actions, policies that impose a *relative disadvantage* in the distribution of scarce goods upon at least one individual, identified by his or her *perceived membership* within a *salient social group*. **Perceived membership**: It doesn't matter whether the discriminator classifies the victim accurately. In Belgium, a legal provision indicates that discrimination based on real or supposed race is illegal. There's no distinction between the two classifications. **A salient social group**: Membership shapes social interactions. Membership matters. informal interactions, marriage patterns, friendship patterns, etc. Dalits, African Americans, and Catholics in Northern Ireland fall into salient social groups. People who prefer certain types of music or foods are not. Whether a group is a salient social group is a matter for sociological or political judgment. **Relative disadvantage**: Discrimination is judged based on a reference of how others are treated. The evaluative definition is identical to descriptive definition of racism plus the statement that discrimination is not justified. **E) 'Forbidden grounds' in discrimination law** Discrimination may or may not be legal When discrimination is legally prohibited, can we make sense of the list of criteria on the basis of which it is then unlawful to make decisions? In the US, those criteria are race, color, sex, religion, and national origin - listed out within the **1964 Civil Rights Act**. Other grounds were added later such as age, disability, pregnancy, and sexual orientation (within some jurisdictions) Is there a single criteria for what makes it into this list? The list seems to comprise of 2 distinct subsets of criteria - innate, unchosen, and immutable grounds such as color or natural origin and those that have some degree of freedom such as religion and pregnancy Tarunabh Khaitan states that it is possible to identify, on their basis, several groups that are unequally disadvantaged. Within any of those groups, it's possible to identify groups that have substantial or enduring disadvantages more than others. Of all groups defined by a forbidden ground, members of at least one group must be more likely to endure disadvantage on a certain ground - and thus becomes forbidden. This basic condition does seem to be met in all cases. In the US, most racial and religious minorities (women, LGBT individuals, the disabled, etc) are more likely to be subject to disadvantage. This relative disadvantage may or may not morph into an identity subjectively experienced as such. For instance, disability is a forbidden ground. However, in most cases, most disabled individuals do not think of themselves as belonging to a single, disadvantaged identity group. What matters is the existence of relative disadvantage - not whether a group is an identity group. **II- Disaggregating discrimination** **A) Direct (disparate treatment) discrimination** Disadvantages individuals based on their perceived membership in a salient, social group. These groups are defined on which grounds are forbidden. **1) Intentional direct discrimination** The behavioral manifestation of prejudice - what most people have in mind when they think of discrimination. The discriminator has self-consciously endorsed negative attitudes, and his behavior reflects those attitudes. It is meant to disadvantage those in stigmatized groups. Only intentional discrimination can be prosecuted under criminal law in countries like France. Until 2001, it was also legal to use only criminal law to press charges against someone on the basis of racial discrimination. In addition, this is the only form of discrimination that can be liable for punitive damages. Intent doesn't matter conceptually. The concept of direct discrimination doesn't make reference to the matter of intent. **2) Unintentional direct discrimination:** what we know from the social psychology literature - it's very often not intentional. it is possible to treat someone differently and worse without being aware of doing so. What matters is if perceived group membership made a difference in the actions of the discriminator. The touchstone is the causal condition between perceived group membership and negative treatment. **a) Categorization and stereotypes formation as automatic cognitive processes** **Categorization** is both necessary and automatic : - - Categorization is associated with stereotypes and largely independent on individual levels of prejudice. **Stereotypes** create cognitive biases that determine how information is memorized and interpreted and the impact of that information on judgment and decision making. **b) Biases in recall and causal attribution** People more easily remember behaviors confirming their prior expectancies based on stereotypes over those that discount their prior expectancies based on stereotypes. Whenever you see a behavior that is stereotype consistent, there is a tendency to attribute that behavior to internal, dispositional properties of individuals. If a member of a stigmatized group shows up late to work, the interpretation that members of that group are unreliable will prevail over the fact that it may have been an instance of bad luck. **Causal attribution** determines predictions about future behavior. If you believe the behavior you've noticed is a reflection of stable, dispositional properties of individuals, you'll use it to make a prediction about future patterns of behavior. Those biases operate without individuals realizing that they do. **c) The discriminatory effects of automatically activated stereotypes: 'shooter bias'** Joshua Correll created a video game in which white and black targets were holding either guns or objects of a similar size, but innocuous. They were placed into realistic background settings. Participants were told to decide to shoot or not to shoot the target. Researchers forced errors by decreasing the amount of time available to respond. Both white and black participants were much more likely to shoot at a black target than a white one when no guns were present. The validity of this finding has been confirmed by the number of black men killed by the police in the United States. **d) The Implicit Association Test (IAT)** It was designed by Anthony Greenwald in 1998. The test asks individuals to categorize a series of pictures or words into groups. The words have transparently positive or negative connotations and are to be classified into positive or negative words. In the first step, respondents are asked to press one key on the feature for either black faces or transparently negative words, and they are asked to press another key for either white faces or transparently positive words. In the second step, respondents are asked to press one key for either black faces or positive words and the other key for white faces or transparently negative words. The idea is that there's going to be implicit bias against black people because individuals take more time to respond in the second step than the first. **e) The correlation between IAT scores and behavior toward outgroup members** IAT scores are strongly correlated with nonverbal behavior towards members of the outgroup. People with high implicit bias scores were more likely, during the interview, to devote less time, smile less, use less eye contact, be less friendly, and create more physical distance if the applicant was African American. This has a negative impact on the performance of applicants towards which this behavior occurs. This is true in many other cases. In the study by Palais, Pariente, and Glover, ''Discrimination as a Self-Fulfilling Prophecy: Evidence from French Grocery Stores', managers with high IAT scores had a negative impact upon the performance of black cashiers. The reason is because the managers interact less with minorities, so the employees exert less effort. **f) The malleability of implicit bias** Automatic, cognitive biases will resist conscious control. However, there are indirect ways of influencing them. The biases are mutable and malleable to some extent. There was a study by Dasgupta and Greenwald that showed that exposing white subjects to broadly admired African Americans like Obama reduced their IAT scores. In addition, a study by Brian Lowery showed that having a white person interact with a black experimenter, rather than a white one, lowered IAT score. **g) Some effective anti discrimination measures** Even when discrimination is unintentional, there are ways to make it go down. If there is extensive, detailed criteria for hiring, there's a lower chance for discrimination. If you subject the evaluation of white evaluators to review, the discrimination will go down. **B) Indirect (disparate impact) discrimination** **1) Griggs v. Duke Power Company** Court case that first banned indirect discrimination in the United States : A North Carolina employer had discriminated against black people. After the Civil Rights act came into force, the government opened jobs that were previously closed to black people. However, it set a new standardized test with a minimum score. Given the inferior quality of segregated schools, the proportion of black applicants reaching this minimal score was markedly lower than white applicants reaching this minimal score. Even though this employment practice was neutral on its face, it was discriminatory in operation. It was meant to perpetuate the harmful effects of past, deliberate discrimination. The court held that the practice, because of its impact, was illegal because it was not strictly necessary. **2) The constitutive features of indirect discrimination (equal treatment; disparate impact; no compelling justification)** 3 conditions: There is no difference in treatment of individuals based on membership of a group. The practice must have a disproportionately negative effect on a certain group. There must be a compelling reason for the practice to continue. Intent does not matter in the context of illegality. One can argue that anti-discrimination has become a group centered and result oriented policy. The distinction between direct and indirect discrimination and between intentional and unintentional discrimination are separate from each other. **3) The four-cell discrimination matrix** - - - - **4) Examples of unintentional indirect discrimination** The minimum height requirement used by many police departments in the US - which had a disproportionately negative impact on women. This impact was not the reason why the height requirement had been introduced. Affirmative action programs in selective institutions of higher education as far as Asian applicants are concerned. They have higher test scores typically than other groups which means that affirmative action programs will unintentionally harm Asian applicants. They are not designed to harm them. **5) Examples of intentional indirect discrimination** Discriminatory but hidden Consider the anti-vagrancy laws that were introduced by Southern states in the US after the Civil War. Those laws basically identified unemployed adults as vagrants. Clearly, the recently emancipated slaves would be statistically overrepresented in this group classified by vagrants. This was an attempt by southern states to nullify the abolition of slavery. Another example is the literacy tests used by those same southern states in order to exclude African Americans from the franchise after the 15th amendment. The recently emancipated slaves overwhelmingly failed these tests. In 1924, the **Johnson Reed Act** was a major milestone in US integration law. It set up a quota based on national origin. The number of immigrants admitted to the US of a certain national origin per year had to be below 2% of the amount of immigrants living in that country in 1890. This year of reference was significant because, before 1890, immigration from the US came mostly from western and northern Europe. The percentage of those from southern and eastern Europe was only 20% between 1880 and 1890 and grew significantly after those years. It was meant to keep as many Jewish and Catholic immigrants out as possible. Discrimination against Jewish students by Ivy League universities in the interwar years - Harvard introduced an unofficial quota of 15%. However, other universities lowered their financial aid budget (knowing that Jews would be statistically overrepresented in this group), introduced legacy preferences (knowing that Jews would be underrepresented within these groups), and they began valorizing geographical diversity and facilitating accepting more students from midwestern states (knowing that Jews were significantly overrepresented in the large, urban centers of the northeast) **6) The limits of the indirect discrimination paradigm** Should not be conflated with systemic discrimination - this is not a legal concept at all. It's simply a label we're tempted to use when we're not able to find the single process responsible for creating the discrimination. You need enough minority members to apply for a given position for the gap between the successes of minority and non minority groups to be statistically significant. In other words, the sample size has to be large enough. This condition was usually met in the US for occupations like truck drivers, firefighters, and police officers. However, it was not met for more prestigious, skill intensive jobs - access to which is regulated by subjective recruitment procedures. You need scores and numbers to operationalize the indirect discrimination approach. Even in a country where you do have statistical data on everything broken down by race, you basically will need a minimal number of people applying to mobilize the theory of indirect discrimination. **III- Measuring Discrimination** **A) Public opinion surveys and their limits** Ask members of minority groups how they've been discriminated against and how often. It's based more on perception of discrimination - rather than discrimination itself. Respondents may mistakenly believe they've been discriminated against - when they actually haven't. Conversely, it's possible to be discriminated against without being aware of it. Not knowing how others were treated by the decision maker, the individual may fail to realize that they were treated worse than others. **B) Indirect econometric approaches and their limits** You begin by observing a statistical disparity in outcomes between 2 predefined groups - such as inequality in employment rate between black people and white people. You want to figure out what part of this disparity is due to discrimination. You need to control for the variables that could potentially affect your observations. So, instead, you compare unemployment rates across subsets of the black and white populations that are identical in everything that may determine unemployment, except for race - like the subset of black and white people with the same age, gender, level of education, etc. If at the end of this process of neutralizing all of the other potential explanatory variables, you still find a much lower gap, you can say with confidence that this unexplained gap is due to discrimination. But, this method is reliable only to the extent that the list of explanatory variables is complete and exhaustive. If your list is incomplete, then discrimination will be overestimated. **C) Audit studies and their limits** Field experiments. The goal is to isolate discrimination as a causal mechanism by artificially constructed a predicament by which discrimination is revealed by humans in a real-life study. The research creates 2 strictly equivalent applications and applies them to fictitious candidates and are supposed to be competing over a given position or good. The only characteristic by which 2 applications defer is to the impact by which the characteristic is being tested. They are not identical, but they are equivalent. If, at the end of this process there's a difference in treatment, you can attribute it to direct discrimination. 2 forms of testing - - - In a 2003 study by sociologist Devah Pager, it was noted that black applicants without a criminal background fared worse than white applicants with a criminal background. In addition, the size of the disadvantage of having a criminal background also depended on race. It was markedly larger for African American applicants. Audit studies have their own limitations. They mention the results for a given job at a given time at a given place; they're extremely difficult to generalize. However, the issue gets addressed when there are many studies showing consistent findings. Secondly, when using correspondence tests, you don't know if the signal received by the employer is the same as that received by the applicant. In Bertrand and Mullainathan's study, 'Are Emily and Greg more Employable than Lakisha and Jamal?,' it was found that those with European names were more employable than those with stereotypically African American names. Thirdly, these tests don't tell us about the causes of discrimination. **Conclusion: The growing disconnection between racism and discrimination** The puzzle is that all those empirical studies of discrimination - whether through surveys or audit studies - have uncovered a fairly high level of discrimination. Clearly, discrimination has gone down, declined substantially if you compare it with a pre-civil rights era. The decline was steep. However, the decline was less dramatic than the decline of public expression of racist beliefs and racist attitudes. In 1942, even if the US was at war with Nazi Germany, the statement "blacks are naturally less intelligent than whites" was endorsed by nearly 60% of white respondents. Now, it is less than 5%. After 1967's **Loving v Virginia case**, you still had a majority of white respondents disapproving of those marriages. Now, that proportion is around 10%. The respondents probably mean what they say because the 10% are willing to say publicly that they object to interracial marriages. This is disturbing - but encouraging - because it suggests that answers to other questions targeting racist attitudes are probably sincere.