Virtuously Discriminating: John Gardner’s Contributions to Discrimination Theory

Abstract This chapter focuses on Gardner’s most original contributions to the growing field of discrimination theory. Gardner defended a number of quite radical views about discrimination—for instance, that indirect discrimination is just another form of direct discrimination, and that discrimination is wrong because we prohibit it (a malum prohibitum) rather than wrong in itself (a malum in se). In this chapter, I explain his views and discuss the possibilities he has opened for future philosophical inquiry and productive legal reform. I argue that it is particularly important that we take seriously his suggestion that the divide between direct and indirect discrimination is not very wide. I then critique some features of his views. I argue that although direct and indirect discrimination are wrong for similar reasons, we should not treat indirect discrimination as just another form of direct discrimination on a different ground. I also argue that it is a mistake to think that discrimination is a malum prohibitum, and that in order to see why it is genuinely a malum in se, we need to move beyond Gardner’s concept of disadvantage and focus on the particular way of disadvantaging people that makes discrimination wrongful, which in my view involves subordination.