Discriminating between people on the grounds of merit is generally lawful in Western democracies. Discrimination on other grounds generally is not. When unlawful discrimination takes place, it is often described as discrimination against a person or group of people.
Social theories such as Egalitarianism claim that social equality should prevail. In some societies, including most developed countries, each individual's civil rights include the right to be free from government sponsored social discrimination.[1]
In contrast, conservative writer and law professor Matthias Storme has claimed that the freedom of discrimination in human societies is a fundamental human right, or more precisely, the basis of all fundamental freedoms and therefore the most fundamental freedom. Author Hans-Hermann Hoppe, in an essay[2] about his book Democracy: The God That Failed, asserts that a natural social order is characterized by increased discrimination.
Unlawful discrimination can be characterised as direct or slightly less direct. Direct discrimination involves treating someone less favourably because of their possession of a legally protected attribute (e.g., sex, age, race, religion, family status, national origin, military status, disability), compared with someone without that attribute in the same circumstances. An example of direct discrimination would be not giving a woman a job because she is more likely to take maternity leave. Indirect discrimination involves setting a condition or requirement which a smaller proportion of those with the protected attribute are able to comply with, without reasonable justification. The case of Griggs v. Duke Power Company[2] provides an example of indirect discrimination, where an aptitude test used in job applications was found "to disqualify Negroes at a substantially higher rate than white applicants".
Race discrimination
Racial discrimination differentiates between individuals on the basis of real and perceived racial differences, and has been official government policy in several countries, such as South Africa in the apartheid era.
In the United States, racial profiling of minorities by law enforcement officials has been called racial discrimination.[3] As early as 1866, the Civil Rights Act provided a remedy for intentional race discrimination in employment by private employers and state and local public employers. The Civil Rights Act of 1871 applies to public employment or employment involving state action prohibiting deprivation of rights secured by the federal constitution or federal laws through action under color of law. Title VII is the principal federal statute with regard to employment discrimination prohibiting unlawful employment discrimination by public and private employers, labor organizations, training programs and employment agencies based on race or color, religion, gender, and national origin. Title VII also prohibits retaliation against any person for opposing any practice forbidden by statute, or for making a charge, testifying, assisting, or participating in a proceeding under the statute. The Civil Rights Act of 1991 expanded the damages available in Title VII cases and granted Title VII plaintiffs the right to a jury trial. Title VII also provides that race and color discrimination against every race and color is prohibited, including whites, blacks, hispanics, and Asians.
In the UK the inquiry following the murder of Stephen Lawrence accused the police of institutional racism.
- Weaver v NATFHE (now part of the UCU) Race/sex discrimination case. An Industrial (Employment) Tribunal in the UK decided that a trade union was justified in not assisting a Black woman member, complaining of racist/sexist harassment because the accused male would lose his job. The Employment Appeal Tribunal upheld the decision. Also known as the Bournville College Racial Harassment issue.
Life after Civil War
African Americans expected that the end of the Civil War would mark the end of the division between African Americans and Caucasian Americans,[citation needed] but it merely signified the end of slavery. While the formal physical abuse had subsided, African Americans were only given second-class citizenship. Through the Jim Crow Laws, African Americans were given a limited amount of rights. Voting rights were manipulated and through different clauses such as the grandfather clause, it was made so only Caucasian Americans could vote. Although African Americans were no longer held against their will as slaves, they were not given equal rights.
Black people were still used for labor but were able to have some sort of growth. Basically, African Americans would oversee the farms and fields of Caucasians. Although they could keep some profit, they were forced to return most of it to the farm owner.
This way of life, though degrading, greatly informed African American culture, which became set on a seven day rhythm: work for five days, Saturday for recreation, and Sunday for worship. Saturday evenings established the Blues because African Americans spent the night together expressing their hurt in an artistic way. Slavery widely informed later African American culture.
Age discrimination
Age discrimination is discrimination against a person or group on the grounds of age. Although theoretically the word can refer to the discrimination against any age group, age discrimination usually comes in one of three forms: discrimination against youth, which is also called 'adultism'; discrimination against those 40 years old or older [3], and; discrimination against elderly people.
In the United States, the Age Discrimination in Employment Act prohibits employment discrimination nationwide based on age with respect to employees 40 years of age or older. The Age Discrimination in Employment Act also addresses the difficulty older workers face in obtaining new employment after being displaced from their jobs, arbitrary age limits.
In many countries, companies more or less openly refuse to hire people above a certain age despite the increasing lifespans and average age of the population. The reasons for this range from vague feelings that younger people are more "dynamic" and create a positive image for the company, to more concrete concerns about regulations granting older employees higher salaries or other benefits without these expenses being fully justified by an older employees' greater experience.
Some people consider that teenagers and youth (around 15-25 years old) are victims of adultism, age discrimination framed as a paternalistic form of protection. In seeking social justice, they feel that it is necessary to remove the use of a false moral agenda in order to achieve agency and empowerment. This perspective is based on the grounds that youth should be treated more respectfully by adults and not as second-class citizens. Some suggest that social stratification in age groups causes outsiders to incorrectly stereotype and generalize the group, for instance that all adolescents are equally immature, violent or rebellious, listen to rock tunes and do drugs. Some have organized groups against age discrimination.
Ageism is the causal effect of a continuum of fears related to age.[citation needed] This continuum includes:
- Pediaphobia: the fear of infants or small children.
- Ephebiphobia: the fear of youth.
- Gerontophobia: the fear of elderly people.
Related terms include:
- Adultism: Also called adultarchy, adult privilege, and adultcentrism/adultocentrism, this is the wielding of authority over young people and the preference of adults before children and youth.
- Jeunism: Also called "youthism" is the holding of beliefs or actions taken that preference 'younger' people before adults.
Gender discrimination
Gender discrimination is discrimination against a person or group on the grounds of sex or gender identity.
Socially, sexual differences have been used to justify societies in which one sex or the other has been restricted to significantly inferior and secondary roles. While there are non-physical differences between men and women, there is little agreement as to what those differences are.
Unfair discrimination usually follows the gender stereotyping held by a society.
The United Nations had concluded that women often experience a "glass ceiling" and that there are no societies in which women enjoy the same opportunities as men. The term "glass ceiling" describes the process by which women are barred from promotion by means of an invisible barrier. In the United States, the Glass Ceiling Commission has stated that between 95 and 97 percent of senior managers in the country's biggest corporations are men. [4]
Transgendered individuals, both male to female and female to male, often experience problems which often lead to dismissals, underachievement, difficulty in finding a job, social isolation, and, occasionally, violent attacks against them.
Legislation
In the U.S., Title VII of the CRA of 1964 allows a BFOQ for gender (contact prison guards, washroom attendants) but such permission is extremely limited. The Equal Pay Act (part of the Fair Labor Standards Act) prohibits wage discrimination by employers and labor organizations based solely on sex.
In the UK, the principal legislation is found in the Equal Pay Act 1970 (which provides for equal pay for comparable work) and the Sex Discrimination Act 1975, which makes discrimination against women or men (including discrimination on the grounds of marital status) illegal in the workplace. The adoption of the Human Rights Act 1998 in 2000 provides more scope for redressing all forms of discriminatory imbalances.
Employment discrimination
The federal laws that protect against:
- race, color and national origin discrimination include the Civil Rights Act of 1964, Executive Order Number 11478 among other numerous laws that protect people from race, color and national origin discrimination.
- sex and gender discrimination include the Civil Rights Act of 1964 and Equal Pay Act of 1963.
- age discrimination include the Age Discrimination in Employment Act of 1967.
- physical and mental disability discrimination include the Americans with Disabilities Act of 1990
- religious discrimination include the Civil Rights Act of 1964.
- military status discrimination include the Vietnam Era Veterans Readjustment Assistance Act of 1974
Drug discrimination
People are sometimes discriminated against on the basis of whether they take illegal drugs. The legality and ethics of such discrimination is part of a wider debate on the arguments for and against drug prohibition. (See also drug test).
A recent British case involving this form of discrimination is that of Casey William Hardison, who appealed to the European Court of Human Rights after being refused a final appeal at the House of Lords, the highest court in Great Britain. The essence of Hardison's argument was that the Government’s distinction between illegal and legal drugs is arbitrary, vague and unscientific; based more on historical moral prejudice than on objective evidence. Hardison is currently serving a twenty-year sentence for producing a variety of entheogenic drugs.
Language discrimination
People are sometimes subjected to different treatment because their preferred language is associated with a particular group, class or category. Commonly, the preferred language is just another attribute of separate ethnic groups.
"Reverse discrimination", "preferential treatment", and opponents of modern preferential programs
Reverse discrimination is a term used to describe discriminatory policies or acts that benefit a historically socio-politically non-dominant group (e.g. women, blacks etc), at the expense of a historically socio-politically dominant group (e.g. men, whites etc). Most academic and expert opponents of preferential policies that favor historically-discriminated groups, such as Carl Cohen, would avoid the term "reverse discrimination" on the grounds that "discrimination is discrimination" and that the label "reverse" is a misnomer (a point that experts on both sides of issue generally agree with). Groups such as the American Civil Rights Institute, run by Ward Connerly, have opted for the more legally precise terms "race preference", "gender preference," or "preferential treatment" generally, since these terms are contained and defined within existing civil rights law, such as the 1964 Civil Rights Act.
In this vein, Ward Connerly has promoted and won a series of ballot initiatives in the states of California (California Proposition 209 (1996)), Washington (1998 - I-200), and Michigan (the Michigan Civil Rights Initiative - MCRI, or Proposal 2, 2006). California's initiative was co-authored by academics Tom Wood and Glynn Custred in the mid-1990s and was taken up by Connerly after he was appointed in 1994 by Governor Pete Wilson to the University of California Board of Regents. Each of the ballot initiatives have won, and Connerly plans what he calls a "Super-Tuesday" of five additional states in 2008. The language of these ballot initiatives all use the terms "preferential treatment" as their operative clauses.
Academics such as Cohen, who was a supporter of Michigan's Proposal 2, have argued that the term "affirmative action" should be defined differently than "race preference," and that while socio-economically based or anti-discrimination types of affirmative action should be permissible, those that give preference to individuals solely based on their race or gender should not be permitted. Cohen also helped find evidence in 1996 through the Freedom of Information Act that lead to the cases filed by Jennifer Gratz and Barbara Grutter against the the University of Michigan for its undergraduate and law admissions policy - cases which were decided by the U.S. Supreme Court on June 23, 2003.
Notable[citation needed] national bloggers and internet resources against preferential types of affirmative action include John Rosenberg's Discriminations, Tim Fay's Adversity.net, and Chetly Zarko's Power, Politics, & Money.
Disability discrimination
People with disabilities have to sometimes face discrimination in all levels of society.
Chronic pain is a debilitating condition which is often neglected in modern society. According to the American Chiropractic Association [5], over 50% of all working US Citizens complain of back pain each year. An estimated 80% of the population will experience back pain at some point in their life. Many times pain can become chronic and debilitating. Ergonomic seating and work environments are not only be a reasonable accommodation for those who suffer, the are also a preventative measure to counteract the soaring cost of medical treatment for pain conditions. Ergonomic seating in all public institutions would be a positive step to providing access to public services for all those who need it. In the United States the Americans with Disabilities Act [6] provides guidelines for providing wheelchair access for public institutions, but ergonomic devices for those who suffer from pain are something that has yet to be implemented.
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