Understanding Discrimination and Invidious Discrimination in Modern Society

In today's complex and interconnected world, the term 'discrimination' often raises contentious debates and legal concerns. Understanding the nature of discrimination is crucial for anyone looking to contribute to fair and just societies. This article delves into the meaning of discrimination and distinguishes between the broad concept and invidious discrimination, a more specific and legally defined form of discrimination.

What Does Discrimination Mean?

The word 'discrimination' stems from Latin, where dis means 'apart' and cernere means 'to discern, perceive.' In its most general sense, discrimination involves the ability to perceive the characteristics of a person or thing, assess the differences between two or more choices, and act upon those choices. This ability is an essential part of human consciousness, allowing us to differentiate between friend and foe, predator and prey, and danger and safety.

Common Everyday Use

Everyday, individuals and organizations 'discriminate' in various decision-making processes. For example, choosing a friend from a circle of acquaintances, deciding which car to buy based on safety features, or selecting a candidate for a job based on qualifications and experience. These examples illustrate 'good' discrimination, rooted in realistic perceptions of significant differences that are relevant to the reasons behind the decision.

The Concept of Invidious Discrimination

While general discrimination is often seen in positive light, the term 'invidious discrimination' carries legal and ethical implications. Invidious discrimination refers to the practice of making choices between people based on irrelevant and superficial differences that are not relevant to the purpose for which the decision is made. This type of discrimination is not only unethical but also illegal in many jurisdictions.

Legal Definitions and Protected Classes

Anti-discrimination laws in the USA and other countries are designed to protect individuals from such invidious discrimination. These laws typically list certain 'protected classifications,' such as race, color, religion, gender, national origin, and disability, and prohibit discrimination based on membership in these classes. For example, it is illegal to deny someone a job or housing simply because of their race, gender, or disability.

Case Study: Bakke vs. Regents of the University of California

The case of Bakke vs. Regents of the University of California (1978) is a landmark legal precedent in the USA. In this case, a white applicant was denied admission to a medical school, which used a combination of traditional merit-based selection and a minority set-aside program. The Supreme Court ruled that while affirmative action programs can be used to promote diversity, they cannot establish quotas or hard-and-fast rules that favor one group over another. This decision underscores the complexity of balancing diversity and fairness in decision-making processes.

Bona Fide Occupational Qualifications (BFOQs)

To add further nuance, some anti-discrimination laws contain exceptions known as BFOQs (Bona Fide Occupational Qualifications). BFOQs allow for discrimination that is related to a 'good faith' requirement of the job. For instance, a church may legally require its clergy to be a member of a particular religious sect if that belief is integral to the job. Similarly, a company may choose to hire only a certain group of people if that group is integral to the job. However, such discrimination must be narrowly tailored to meet a specific, non-discriminatory purpose.

Intersectionality and Disparate Impact

Intersectionality, a concept introduced by law professor Kimberle Crenshaw, acknowledges the interaction of social identity categories (such as race, gender, and sexuality) in understanding experiences of discrimination. Laws today often consider the broader context and impact of discriminatory policies, ensuring that these policies do not disproportionately affect one group over another based on irrelevant characteristics.

Conclusion

Discrimination is a complex issue with broad and specific forms. Understanding the differences between the general concept of discrimination and invidious discrimination is crucial for fostering fairness and equality. By adhering to anti-discrimination laws and recognizing the intersections of various identities, we can work towards creating a more just society.