How do we select protected attributes?

Question

The origin of much contention in contemporary politics is the presence of discrimination of protected attributes. For instance, affirmative action, insurance or credit provision via models for individual default rates, and equal pay for women are hot-button topics in many countries.

Obviously, discrimination in it of itself is in some sense acceptable when applied to certain attributes: when hiring a nurse, for instance, one would be found reasonable in hiring a candidate who comes off as caring as opposed to one that believes cruelty is good for children. Borrowing the language from the answer by @NanheeByrnesPhD in this question, there appears to be a delineation between basic and non-basic rights derived from absolute and proportional notions of justice, respectively.

We define a protected attribute as an attribute of an individual such that anyone's basic rights should be invariant to changes in that protected attribute. Let a delineation be a partition of attributes into protected or unprotected attributes (more broadly, a partition of domains covered by absolute or proportional notions of justice).

Given that a slightly different delineation may result in greatly different social policy, it seems that we should have a solid answer for what constitutes a protected attribute. The linked answer gives a descriptive explanation for the delineation above (calling such a delineation "circumstantial"). Indeed, as mentioned in the answer, one hundred years ago gender was not protected, yet now it is. However, it seems unsatisfactory to let protected attributes be merely what society deems should be protected at the time. Have any foundational principles from which we can assess or construct a delineation been studied? Are any widely accepted (by philosophers at least)?

Answer 1

ZMQ's persistence forced me to think about discrimination a little more carefully than I did initially. The question was how we may identify protected attributes, and my immediate initial reaction was we may not, since selecting one attribute for protection will harm those who lack the protected attributes. A society that installs policies or laws that protect certain attributes of a person would then be unjust and unstable as it imposes unequal opportunity on its people (in the spirit of Rawls).

My reaction was hasty since I neglect to think about substantive equal opportunity. In American history, the motivation for protecting certain attributes by the Court has been to realize the substantive equal opportunity. Democracy will be a tyranny if there exist permanent minority groups who are the objects of prejudice, hostility and stigma (the so-called discrete and insular minorities). These groups cannot protect themselves through the democratic process which is logically biased for the majority. This line of thinking allowed John Ely, a jurisprudence scholar, to assert the raison d'être of the judicial review in Democracy and Distrust. That is, Ely argued that it is the moral duty of the nine wisest individuals in America (the Supreme Court Justices) to protect the discrete and insular minorities.

Their job turned out to be Herculean. To realize the substantive equal opportunity, it became necessary to treat groups of certain attributes preferentially, which then looked like discriminating groups deficient of those attributes. The landmark case of Regents of the University of California v. Bakke (1978) is the point. Bakke, a person suffering from deficiency of skin-color, which resulted in the denial of admission at UC Davis, sued the UC Regents. The Court decision was that Bakke was indeed discriminated due to his lack of skin color, and that the racial quota practiced by UC Davis was unconstitutional. One aftermath of this is that UC and almost all US universities have taken a holistic approach when considering admissibility.

Despite the advertised holistic approach, US universities continue to be sued for discriminatory act. Most recent one: Harvard and several Ivy League universities sued by Asian minority groups. The fact is that UC Berkeley and Caltech have far over 40 % Asian students, while the East Coast prestigious schools have far below 20% Asian students. Some Asians interpret the fact as a glaring example of discrimination by Harvard against Asians (cf.. "The model minority is losing patience"(The Economist Oct 3, 2015).

My point is that an attempt to select (and legislate) certain attributes for protection will lead to preferential treatment for those presented with the attributes, which then can be viewed as reverse discrimination for those absent from the attributes. A law involving anti-discrimination can turn out to be a zero-sum game. We could rely on Ely's intuition that only discrete and insular minorities deserve the protection of the law. But then Robert Bork in The Tempting of America argued that there is no such thing as discrete and insular minorities.

I thank Professor David Brink for having introduced me to Ely's and Bork's works.

Answer 2

The question is deeply complex and multi-faceted. Here, I take the question to be, "What are possible approaches to obtain some fundamental principles through which a clear delineation between protected and unprotected attributes of a person can be made?" An attribute is defined as being protected if the non-protection of the attribute by the society violates the principle of equal opportunity or basic rights. Here I offer two approaches to obtain some fundamental principles, and challenges to the approaches.

One approach comes from the natural law (or rights) view. The idea is that law should reflect morality. So for instance, killing an innocent person should be illegal since the act is immoral. Immoral or unjust laws, in this light, lose authority (i.e., the moral right to obeisance). Sophocles's Antigone is the champion of this view. Antigone was punished to death as she asserted her natural (gods-given) right to bury her brother, and disobeyed the king's decree. This is a long story, but if you know that Antigone is Oedipus' daughter, you can see how the tragedy would continue. Thomas Aquinas, John Locke, John Finnis and Ronald Dworkin can be said to be holding this natural law view. The natural law idea can provide the desired fundamental principle. For example, the Lockean rights (life, liberty, and the harvest of the fruits of one's labor) could be asserted as protected attributes.

Second way to obtain a fundamental principle is by way of relying on the distinction between positive and negative rights. Theorists holding this distinction (most notably Isaiah Berlin, and J.S. Mill in On Liberty where he posits the harm principle as the only justified reason for interference) state that negative rights are rights of non-interference, that is, the right to be left alone. The right to walk around the neighborhood or the right to speak freely is an example. Positive rights are claim rights in that they entail correlative duty. If I have the right to $100, then there must exist an entity that has the duty to give me the money. Since scholars holding this distinction tend to associate negative rights with basic rights, the distinction can offer a fundamental principle for protected attributes.

Challenges to the approaches:

1. The natural law view is severely attacked by legal positivists. Jeremy Bentham, a proponent of legal positivism, asserted that the idea of natural rights are nonsense upon stilts. To legal positivists, laws are what they are: the outcomes of custom, tradition, circumstance, and precedence, backed by the territorial monopoly power of the govt. They have authority regardless of their moral content. To them, natural law theory has the order wrong in the chicken and egg case. It is the gov (society, nation) that created rights. While not a legal positivist, Socrates for one understood the authority of law as he stated "Bad laws are laws," and drank a shot of hemlock.

2. The distinction between negative rights and positive rights can never be clear. Some argue that all rights are positive rights. Surely, I cannot walk freely or speak freely without the safety and security backed by the police. Mill's harm principle also is a matter of great contention among legal scholars since what counts as 'harm' is not clear.