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Equality, Justice and Legitimacy in Selection*

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The claim that the ideal of equality has a role to play in the critique of discrimination in employment and education has been rejected by a number of philosophers. Certain anti-egalitarians argue that the appeal to equality is redundant; others that egalitarianism misdirects us or fails to explain our special hostility towards discrimination. This article sketches an egalitarian conception of justice in selection and explains what is distinctive about such conceptions. Thereafter, it attempts to rebut the important objections that have been raised against egalitarian accounts of discrimination.

1. FN1* Earlier versions of this paper were presented to the Workshop on Discrimination in Hiring at the Catholic University of Louvain and to a MANCEPT seminar at the University of Manchester. I am grateful to the participants at these events for their comments and to two referees who read an earlier draft for the Journal. For helpful discussion I also thank Paula Casal, Axel Gosseries, Annabelle Lever, Kasper Lippert-Rasmussen, Bill O’Brian, Martin O’Neill, Jon Quong, Shlomi Segall, David Stevens, Victor Tadros and Andrew Walton. I am particularly grateful to Tom Porter and Andrew Williams for their written comments.
2. FN21 J. S. Mill, The Subjection of Women (1869), ch. 1, para. 1
3. FN32 See, for example, Joseph Raz, The Morality of Freedom (Oxford: Clarendon Press, 1986), ch. 9; Peter Westen, ‘The Empty Idea of Equality’, Harvard Law Review, 95 (1982), 537-596; Christopher Peters, ‘Equality Revisited’, Harvard Law Review, 110 (1997), 1210-1264; Matt Cavanagh, Against Equality of Opportunity (Oxford: Clarendon Press, 2002); Elisa Holmes, ‘Anti-Discrimination Rights Without Equality’, The Modern Law Review, 68 (2005), 175-194; William E. O’Brian Jr, ‘Equality in Law and Philosophy’, Inquiry 53 (2010), 257-284.
4. FN43 See Dworkin, Sovereign Virtue: The Theory and Practice of Equality (Cambridge, MA: Harvard University Press, 2000), 184-190.
5. FN54 Plainly, ‘toughness’ needs further specification. I use that word to cover two distinct ways in which obtaining a good can be hard—the costliness and difficulty of accessing it. On this distinction, see G.A. Cohen, ‘On the Currency of Egalitarian Justice’, Ethics, 99 (1989), 918-919.
6. FN65 See Deborah Hellman, When Is Discrimination Wrong? (Cambridge, MA: Harvard University Press, 2008).
7. FN76 For scepticism with respect to the relevance of the reasons that motivate selectors in assessing the justice of a selection process, see Kasper Lippert-Rasmussen, ‘The Badness of Discrimination’, Ethical Theory and Moral Practice, 9 (2006), 167-185; Hellman, When Is Discrimination Wrong? ch. 6. For arguments that motivating reasons are relevant in evaluating justice in selection, though not necessarily egalitarian ones, see Larry Alexander, ‘What Makes Wrongful Discrimination Wrong?’ University of Pennsylvania Law Review, 141 (1992), 149-219; Matt Cavanagh, Against Equality of Opportunity (Oxford: Clarendon Press, 2002), 166-167, 176-180; Richard Arneson, ‘What is Wrongful Discrimination?’ San Diego Law Review, 43 (2006), 775-808; Patrick Shin, ‘The Substantive Principle of Equal Treatment’, Legal Theory, 15 (2009), 149-172.
8. FN87 Raz, The Morality of Freedom, 217-233.
9. FN98 Ibid., 218-222.
10. FN109 Frankfurt, ‘Equality and Respect’, Social Research, 64 (1997), 7.
11. FN1110 Cavanagh, Against Equality of Opportunity, 24-25.
12. FN1211 Elisa Holmes, ‘Anti-Discrimination Rights Without Equality’, 175.
13. FN1312 William E. O’Brian, ‘Equality in Law and Philosophy’, 259. See, in addition, Westen, ‘The Empty Idea of Equality’.
14. FN1413 Patrick Shin, ‘The Substantive Principle of Equal Treatment’.
15. FN1514 Ibid., 170-171.
16. FN1615 Ibid., 168-170. Shin insists that the permissibility of an action is distinct from whether the action is morally objectionable, and the latter depends on the motives or rationales that move the agent. Kent Greenawalt develops a similar but importantly different argument. He claims that when an action is impermissible on non-egalitarian grounds, egalitarian reasons can ‘reinforce’ this conclusion. In other words, Greenawalt believes that equality is relevant in assessing permissibility even when non-egalitarian reasons are sufficient to generate a conclusive judgment concerning permissibility. See Greenawalt, ‘“Prescriptive Equality”: Two Steps Forward’, Harvard Law Review, 110 (1997), 1265-1290.
17. FN1716 Shin operates with a distinction between two kinds of assessment: whether the selection is permissible and whether it is objectionable. Perhaps there is a different way of putting the distinction, between two kinds of permissibility: the permissibility of hiring (or failing to hire) a particular person, and the permissibility of deliberating in a certain way in one's role as a selector. On this understanding, Shin's claim might be restated as asserting that whilst appeal to equality is unnecessary to establish the permissibility of any particular selection decision, it is necessary for a complete account of permissible deliberation: it is impermissible to be moved by attitudes that fail to accord equal respect to different individuals. The notion of permissible deliberation raises several morally important questions, which I cannot pursue here. I thank Andrew Williams for his helpful thoughts about ‘permissibility’.
18. FN1817 Anti-egalitarians might also offer a different reply, to wit, that egalitarian considerations are redundant when assessing the selector's motives or deliberations. They might say that the selector's motives are objectionable if they treat race as a reason not to hire an applicant regardless of how other applicants are considered.
19. FN1918 For example, one position Holmes criticises is the view that ‘anti-discrimination principles are egalitarian principles’. See, ‘Anti-Discrimination Rights Without Equality’, 185.
20. FN2019 Raz, The Morality of Freedom, 135; Derek Parfit, ‘Equality or Priority?’ in M. Clayton & A. Williams (eds.), The Ideal of Equality (Basingstoke: Macmillan, 2000), 84-85.
21. FN2120 Westen develops this argument at length. See ‘The Empty Idea of Equality’, especially 542-551. See, in addition, Raz, The Morality of Freedom, 217-222, 227-229.
22. FN2221 I am grateful to Tom Porter for pressing this objection.
23. FN2322 This thought, that there are certain constraints that operate when choosing between several permissible courses of action, is familiar in other parts of morality. See, for example, Kagan's nice case of the caged bird. In this case there is a burning building in which a person and a caged bird is trapped. Kagan observes that commonsense morality asserts that it is permissible to accept or refuse an invitation to risk one's life by entering the building, but if one accepts the invitation one must save the person. Shelly Kagan, The Limits of Morality (Oxford: Clarendon Press, 1989), 16.
24. FN2423 Here I follow Paula Casal's view that the anti-egalitarian cannot explain our ‘plausible preference for rules which are to some extent arbitrary but equal over those that are both arbitrary and unequal’. See Casal, ‘Why Sufficiency Is Not Enough’ Ethics, 117 (2007), 303.
25. FN2524 See Peters, ‘Equality Revisited’, especially 1222-1227, 1245-1254.
26. FN2625 The levelling down objection is clarified and discussed by Derek Parfit in ‘Equality or Priority?’ 110-115. The objection is raised by Holmes, ‘Anti-Discrimination Rights Without Equality’, 185-187.
27. FN2726 I summarise a possible egalitarian reply that is indebted to Temkin's response to the levelling down objection. See, for example, Temkin, ‘Equality, Priority, and the Levelling Down Objection’, in Clayton & Williams (eds.), The Ideal of Equality. I do not claim that Temkin is necessarily committed to this reply to the wrong treatment objection. For one thing, he expresses his view as a telic conception, in terms of whether a state of affairs is better or worse, whereas the reply presented here is expressed in terms of reasons. In addition, Temkin's main target is the levelling down objection and it is open to him to take a different view when the action in question is a moral wrong. For a related, more nuanced, bullet-biting argument for the view that the ideal of equality can be a reason to treat a person wrongly in certain cases, see Greenawalt, ‘“Prescriptive Equality”: Two Steps Forward’.
28. FN2827 This position, suggested by Andrew Williams, is summarised by Temkin in note 4 of his ‘Equality, Priority, and the Levelling Down Objection’, 156-157. See also Andrew Mason, ‘Egalitarianism and the Levelling Down Objection’, Analysis, 61 (2001), 246-254.
29. FN2928 Holmes, ‘Anti-Discrimination Rights Without Equality’, 194.
30. FN3029 On this issue, see Harry Brighouse and Adam Swift, ‘Equality, Priority, and Positional Goods’, Ethics, 116 (2006), 471–497.
31. FN3130 Ronald Dworkin is reasonably explicit in endorsing this response: ‘It seems as obvious as anything could that equal concern for all does not mean forcing some people to starve when that will do no one else any good’. Dworkin, ‘Sovereign Virtue Revisited’, Ethics, 113 (2002), 122-124.
32. FN3231 Objections to this view have been raised by Andrew Williams, ‘The Revisionist Difference Principle’, Canadian Journal of Philosophy, 25 (1995), 257-282, and Nils Holtug, ‘A Note on Conditional Egalitarianism’, Economics and Philosophy, 23 (2007), 45-63. However, these objections consider only certain versions of the view, and it is open to Paretian egalitarians to offer alternative conceptions that avoid the objections raised. It is noteworthy, for example, that neither article discusses Dworkin's conception of equality.
33. FN3332 See, for example, Thomas Christiano and Will Braynen, ‘Inequality, Injustice and Levelling Down’, Ratio 21 (2008), 392-420.
34. FN3433 Dworkin, Sovereign Virtue, 65-119, 331-350; Rawls, Justice as Fairness: A Restatement (Cambridge, MA: Harvard University Press, 2001), 123-124.
35. FN3534 Cavanagh, Against Equality of Opportunity, 155.
36. FN3635 Cavanagh presses another objection to egalitarian accounts of discrimination: ‘we are more convinced that discrimination is wrong than we are about either meritocracy or equality.’ Ibid., 157. It is not a good argumentative strategy, he claims, to seek to justify conclusions about which we are very confident by appeal to premises about which we are less confident. The most promising way of justifying a principle to someone else is to move from cases in which there is common agreement to cases in which there is less agreement. Egalitarians do the opposite when it comes to discrimination. They proceed from an ideal of equality that is highly controversial and about which even egalitarians have doubts to justify a more restricted set of claims that command the confidence of many people. I shall not respond to this objection directly, because if my reply to the stringency objection is sound, it can be extended, mutatis mutandis, to deal with this objection that relates to the right way of justifying a principle.
37. FN3736 Dworkin, Sovereign Virtue, 161-162.
38. FN3837 As we have discussed, some reject this view. For accounts that argue that the injustice of racism and sexism should be understood in egalitarian terms, see Shin, ‘The Substantive Principle of Equal Treatment’, and Hellman, When is Discrimination Wrong?
39. FN3938 Rawls, ‘Reply to Habermas’, in Political Liberalism, paperback edition (New York: Columbia University Press, 1996), 428.
40. FN4039 See Rawls, ‘Introduction to the Paperback Edition’, Political Liberalism, xlviii-xlix.
41. FN4140 On these issues, see Geert Demuijnck's excellent paper, ‘Non-Discrimination in Human Resources Management as a Moral Obligation’, Journal of Business Ethics, 88 (2009), 83-101.

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Affiliations: 1: University of Warwick


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