Abstract:

Who can be a target group of discrimination? How we think about this matters for determining whether disparate impact on a group counts as wrongful discrimination, for the list of protected groups in discrimination law and for selecting the relevant causal variables in research design. What should we, for example, think about ‘intersectional’ categories, and how should we respond to discrimination claims from ‘novel discriminatee’ groups, such as height and class. In this paper we argue for some general principles for deciding whether a group should be included among the groups that can be discriminated, or not.

We first examine this as a matter of conceptual engineering. We argue that intuitions are of limited interest for settling which these groups are, because our intuitions on this topic are likely to be a matter of our conventional understanding, and how we currently think about discrimination. When we consider whether to include novel groups our current understanding might be too limited and conceptual engineering encourages different paths to go beyond it.

One way to go beyond the conventional understanding of these groups is to think of them as social kinds. This can help us appreciate the nature of these discriminated groups, and the type of specific knowledge we can jointly arrive at about them. We argue that this will help us understand why there is widespread epistemic coordination about the groups that are subject to discrimination. It also generates some principles for deciding which groups should be included among the groups that can be a target of discrimination.