Is discrimination always, as a matter of course, wrong? According to Deborah Hellman, who presented her provocative new book at an event sponsored by the Division of United States Studies, the answer is, perhaps surprisingly, no. Drawing distinctions among people is both commonplace and necessary, she argued. The problem is that the word "discrimination" is ambiguous: on the one hand it can function descriptively, but it can also be evaluative and normative. As Hellman explained, it is the slippage between these two meanings that allows people to avoid answering the tough yet important question of when it is morally wrong to discriminate, which is the central aim of her book.

In its descriptive sense, Hellman pointed to a number of cases in which discrimination is perfectly acceptable, even legal. Universities discriminate on the basis of grades; employers on the basis of experience; and motor vehicle departments on the basis of age, to name but a few. According to Hellman, it is often impossible not to draw distinctions. In a world where there is a limited number of slots, positions, etc. available, discrimination becomes a necessary occurrence, and there is in fact much of it that goes on that is permissible.

So why do we worry about discrimination? Practically speaking, we worry because there are laws against it, and because there are many salient examples of wrongful discrimination in our history to be conjured up. But in a more profound sense, she said, we worry about discrimination because there is a fundamental equality among people that we are afraid of violating. It is this second worry that serves as the guiding premise for Hellman's book.

As a general theory, Hellman argued that to discriminate wrongfully is to treat people in a way that denies their equal moral worth; in other words, to differentiate in a way that is demeaning. She defined "demeaning treatment" as having two necessary components. The first is expressive; that is, conveying the view that the person being demeaned is not of equal worth. The second relates to power; that is, the demeanor must be in a relative position of power in order to put the other down.

To illustrate her point, Hellman turned to the hypothetical examples of spitting on a homeless person vs. spitting on her university dean. The first scenario, she explained, would clearly be demeaning, not only because spitting is a conventional way in our culture of expressing unequal worth, but because of the relative power of Hellman with regard to the homeless person. Spitting on her university dean, however, although highly disrespectful, would not be demeaning due to Hellman's lack of relative power with regard to the dean.

Hellman argued that discrimination is an objective rather than a subjective determination; it is not contingent on the feelings of the person being demeaned, but on the wrongness of the act itself. Another important aspect of discrimination is that it is culturally, historically, and socially embedded. In the United States, given the historical legacy of slavery and institutional racism, discrimination based on race tends to have more resonance and factor more prominently in the public consciousness than do other forms of discrimination.

Anita Allen commented that she found Hellman's book to be philosophically provocative, practical, and helpful. In fact, she said that the Supreme Court would do well to read Hellman's book, especially given its record of "getting it wrong" in cases such as Boy Scouts of America v. Dale and Hurley v. Irish American Gay, Lesbian, and Bisexual Group of Boston. According to Allen, the Supreme Court would benefit from applying Hellman's criteria on what constitutes wrongful discrimination. On the other hand, she said, the book will be helpful in reining in our public understandings of the term "discrimination," and will help clarify why certain daily insults and injuries should not be taken as such.

Allen's major point of contention with the book had to do with the spitting example and the question of whether or not a person of lesser power can demean a more powerful person. Is it true that people "on the historical bottom"—those who historically have been disenfranchised and disempowered—even in this post-Civil Rights era, cannot ever be in a relative position of power to demean? Allen found this assumption both uncomfortable and problematic. As she explained, David can certainly demean Goliath in some instances, and in the context of the United States in the 21st century, black people can certainly demean white people, regardless of their historical power deficit.

David Freund concluded with a discussion of one of the book's major points; namely, that acts or words that demean due to an imbalance of power constitute wrongful discrimination. Hellman's framework effectively describes the historical trajectory of discriminatory thought and practice in this country, he said, but what does this history mean for contemporary practice?

Hellman rightly points to the fact that structural disadvantage should function as a major calculus in determining wrongful discriminatory practices, Freund commented. What, however, are the implications of this position? Does it make compensatory practices such as affirmative action justifiable? According to Freund, "If we accept that the history of discrimination in the United States...has placed some groups at a material disadvantage, then to not pursue redistributive policies would in fact be demeaning." Are we not, he asked rhetorically, expressing the unequal worth of school children who, due to a lack of access to good schools, are nonetheless subjected to an exam-based achievement regime that will likely prevent them from being accepted to higher education?

The conundrum Freund raises is that based on Hellman's narrow definition of what constitutes demeaning, affirmative action (or any compensatory act) is also inherently an act of wrongful discrimination. What Hellman has highlighted in the book but not fully resolved, he said, is that if we address discrimination as something that can't be statically defined, but as something with a history, then we are forced to view discrimination as so deeply structured that it necessitates—even requires—compensatory action. By Hellman's criteria, however, such compensation would also constitute a wrongfully discriminatory practice. "If we don't believe these kinds of compensatory measures constitute wrongful discrimination against the privileged," Freund concluded, "then perhaps we need to further clarify how the history of discrimination sets the stage for the decisions we make today, and how we scrutinize and justify them."

Drafted by Erin Mosely, on behalf of the Division of United States Studies