An important contribution of Alan Patten’s Equal Recognition is the conception of neutrality that grounds his defence of minority cultural rights. Built in to his conception of neutrality of treatment is a notion of ‘fairness’ whose effect is to provide an upfront, across the board limitation on the demands cultural minorities may legitimately make on the rest of society. There must be limits on the duty to accommodate, but it obscures more than it illuminates to build this into the content (...) of the right to equal recognition itself. We see more clearly what is at stake in these conflicts by articulating the value of self-determination independently and taking account of necessary limits to its satisfaction as part of a second-stage analysis of what duties may be claimed and against whom. Familiar principles of discrimination law exemplify this alternative model. This presents the interest in self-determination more robustly, while acknowledging that the claims of duty arising out of it are defeasible. The result is a more flexible and nuanced exploration of the complex moral issues involved when fundamental interests clash. (shrink)

A central trend in the development of discrimination law, in every jurisdiction, has been the movement from a requirement of intention to ground a complaint to the recognition as actionable of indirect or adverse effect discrimination. Initially, liability for discrimination was circumscribed very narrowly, requiring a form of intention that was tantamount to malice. The practical consequences of this narrow conception were apparent early on, and those concerned about them have long been agitating, with some success, for a reading or (...) redrafting of anti-discrimination statutes that would yield broader liability. Advocacy in the discrimination law context has tended to swing wildly between two extremes -- from a virtually exclusive focus on the moral blameworthiness of the defendant to an attempt to focus solely on the effects of discrimination on its victims. This article seeks to reexamine the gradual expansion of liability in discrimination law from the perspective of the key conceptual elements of liability in tort law in order to reexamine the normative underpinnings of this area of law. Viewed from a tort perspective, the enlargement of the scope of discrimination law can best be understood as resulting from an implicit expansion of the concept of fault appropriate to this context of human interaction, a change linked to an expanding conception of the human interests that discrimination law protects from infringement. From its beginnings, discrimination law implicitly recognized that deliberately refusing to contract with others out of ill will or prejudice toward an important aspect of identity such as race or sex constituted an affront to human dignity that could not be justified by the value of freedom of contract. The expansion of liability over time reflects an expansion of the concept of human dignity bound up with fair access to important opportunities and due consideration of the needs and interests of differently situated groups in the design of important social institutions. This conception of dignity constructs it as an objective interest that can be affected by implicitly discriminatory behavior as well as by conduct motivated by prejudice, requiring more robust justification than the mere claim to liberty. This approach can explain many of the advances in modern discrimination law without resorting to end-state distributive principles. (shrink)