Dignity, Equality, and Comparison
Deborah Hellman and Sophia Moreau, eds., Philosophical Foundations of Discrimination Law, (Oxford: OUP). (Estimated - October 2013), Forthcoming
23 Pages Posted: 8 Aug 2013
Date Written: 2013
It is a common refrain in anti-discrimination, or equality rights, case law that equality is inherently comparative, and courts sometimes spend a great deal of time determining the appropriate comparator group to whom an equality claimant should be compared. On this, the validity of the claim often hangs. A deeper look at the cases, however, shows that this language often amounts to an oblique way of invoking statutory purpose and the relevance of the criteria used to that purpose. Comparisons between claimants and others are grounded in an account of the purpose in providing a particular benefit and of what criteria for its distribution flow from that judgment. It is by reference to this purpose that X is comparable to Y or not, as the case may be. This makes the values embedded in that purpose the key to a claim’s success or failure.
If purpose determines comparability, both purpose and criterion must be open to assessment by the courts, or the comparative analysis is an empty exercise. Legislative objectives implicate principles of distribution based on a range of values. An account of equality rights must provide a basis for assessing these underlying principles by identifying an interest worthy of constitutional protection by virtue of which particular distributions can be declared wrongful. I will argue for understanding this as the interest in treatment with dignity, a position situated within a larger tradition that claims equal moral status for all human beings. Nevertheless, this interpretation shows equality rights not to be predominantly "inherently comparative", indeed not ultimately to be based on the value of equality itself.
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