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To illustrate the idea of indirect discrimination, we can turn to theU.S. Supreme Court case, Griggs v. Duke Power (1971). Acompany in North Carolina used a written test to determinepromotions. The use of the test had the result that almost allblack employees failed to qualify for the promotions. The companywas not accused of intentional (direct) discrimination, i.e., there wasno claim that race was a consideration that the company took intoaccount in deciding to use the written test. But the court foundthat the test did not measure skills essential for the jobs in questionand that the state of North Carolina had a long history of deliberatelydiscriminating against blacks by, among other things, providing grosslyinferior education to them. The state had only very recentlybegun to rectify that situation. In ruling for the blackplaintiffs, the court reasoned that the policy of using the test wasracially discriminatory, because of the test’s disproportionateracial impact combined with the fact that it was not necessary to usethe test to determine who was best qualified for promotion.

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However, it is too simple to say that direct discrimination simply is intentionaldiscrimination. Lippert-Rasmussen rightly points out that there can be cases of direct discrimination not involving the intention to disadvantage anyone on account of her group membership (2014: 59–60). A disadvantage might, instead, be imposed as a result of a general indifference toward the interests and rights of the members of a certain group. Thus, an employer might use hiring criteria that unfairly disadvantages women, not because the employer intends to disadvantage women, but because the criteria are easy to use and he simply does not care that women are unfairly disadvantaged as a result. Such instances of discrimination might not have the paradigmatic status that an example like the Roma case has, but they should be counted as forms of direct discrimination, because the disadvantageous treatment derives from an objectionable mental state of the agent. The same goes for disadvantageous treatment that is the product of bias against a certain group, even when the bias does not involve an intention to treat the group disadvantageously. A paternalistic employer might intend to help women by hiring them only for certain jobs in his company, but, if the employer is motivated by unwarranted views about the capabilities of women, he is guilty of direct discrimination.

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Matt Cavanagh holds a position similar to Young’s, writing thatpersons “who are concerned primarily with how things like raceand sex show up in the overall distributions [of jobs] have no businesssaying that their position has anything to do withdiscrimination. It is not discrimination they object to, but itseffects; and these effects can equally be brought about by othercauses” (2002: 199). For example, the disproportionateexclusion of certain ethnic groups from the ranks of professionalviolinist could be the result of discrimination against those groups,but it also might be an effect of the fact that there is a lowerproportion of persons from those groups who have perfect pitch than theproportion found in other ethnic groups.

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Nonetheless, judgments about discrimination can and do reveal genuinewrongs that persons suffer due to their salient group membership andexpose actual patterns of disadvantage and deprivation that amount tosystemic injustices against the members of certain salientgroups. It is not necessary to take account of everythingrelevant to a phenomenon in order to understand and represent importantaspects of it. Thus, notwithstanding the complications introducedby intersectionality, judgments about direct and indirectdiscrimination can tell us something important about who is wrongfullydisfavored, and who wrongfully favored, by the actions of individualand collective agents and by the rules of society’s majorinstitutions.

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The concept of discrimination provides an explicit way of thinkingabout a certain kind of wrong that can be found in virtually everysociety and era. The wrong involves a group-based structure thatworks in combination with relative deprivations built around thestructure. The deprivations are wrongful because they treatpersons as having a degraded moral status, but also because thedeprivations tend to make members of the group in question vulnerableto domination and oppression at the hands of those who occupy positionsof relative advantage. It is true that there has been confusionattending the concept of discrimination, and there will long be debatesabout the best way to understand and apply it. However, theconcept of discrimination has proved to be a useful one, at thenational and international levels, for representing in thought andcombating in action a kind of wrong that is deeply entrenched in humansocial relations.

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The arguments of Cavanagh and Young raise a question that is not easyto answer, viz., why can indirect and direct discrimination belegitimately considered as two subcategories of one and the sameconcept? In other words, what do the two supposed forms ofdiscrimination really have in common that make them forms of the sametype of moral wrong? Direct discrimination is essentially amatter of the reasons or motives that guide the act or policy of aparticular agent, while indirect discrimination is not about suchreasons or motives. Even conceding that acts or policies ofeach type can be wrong, it is unclear that the two types are eachspecies of one and the same kind of moral wrong, i.e., the wrong ofdiscrimination. And if cases of direct discrimination areparadigmatic examples of discrimination, then a serious question arisesas to whether the concept of discrimination properly applies to thepolicies, rules, and acts that are characterized as“indirect” discrimination.