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The Autonomy Defense of Private Discrimination

25 Pages Posted: 24 Feb 2017  

Heather M. Whitney

Harvard Law School; University of Chicago - Law School

Date Written: February 22, 2017

Abstract

While a number of concerns have been raised about the on-demand economy, evidence of discrimination has been especially noted and publically condemned. Airbnb, for instance, came under fire when a Harvard Business School study showed that property owners were less likely to accept those with black-sounding names as renters and non-black hosts were able to charge approximately 12% more than black hosts. Similarly, in an October 2016 working paper conducted by the National Bureau of Economic Research, researchers looking at taxi-services Uber and Lyft showed that the cancellation rate for those with black-sounding names was more than twice as high as for those with white-sounding names. At the same time, largely in other parts of the country, many condemn not discrimination but the antidiscrimination laws designed to curb it, especially laws aimed at shielding those within the LGBTQ community from discrimination. Debates about discriminatory immigration policies dominate national headlines. 70% of the country is aware of the Black Lives Matter movement. We are, in short, in the midst of an important conversation about discrimination, the likes of which we have not seen since the Civil Rights Movement. Legal theorists and philosophers have taken note, arguing for changes to our current antidiscrimination law regime. But while these theorists have disagreed about the proper scope of antidiscrimination law, they have widely agreed in one crucial respect: namely, that any expansion of antidiscrimination law beyond their preferred scope is problematic on autonomy grounds.

The centrality of “autonomy” in these debates should come as no surprise. Throughout our history of racial conflict, all sides have claimed the ideal of autonomy as an ally to their cause. This is possible because of the concept’s flexibility. “Autonomy” can support a range of positions, depending on the presuppositions it’s packaged with. But when scholars invoke “autonomy” in a way that simply deploys these underlying presuppositions, instead of making these presuppositions explicit, situating them against reasonable rivals, and defending them, they fail to have what scholars at this point in time most crucially need: perspective. These scholars seem to neither notice nor understand why those who take different positions on questions of autonomy, or on specific legal interventions, do so, because the real bases of disagreement – which resides within these presuppositions – remain hidden. As a result, their rejection of certain antidiscrimination law regimes and support of others do little to move the debate about the proper scope of antidiscrimination law forward. Antidiscrimination law scholars are trapped in an ongoing cycle of autonomy assertions and as a result, the important debate about the proper scope of antidiscrimination law remains stalled. We cannot afford this.

My aim in this Essay is one of illumination and aid. I attempt to show why the mere assertion that a certain antidiscrimination law “violates autonomy” hides from view the true basis of disagreement and, in so doing, both fails to engage the relevant arguments while also failing to provide readers any reason to adopt the author’s preferred antidiscrimination law regime. I will do this by illuminating the presuppositions underpinning the two main conceptions of autonomy that are invoked in the antidiscrimination law literature. I then situate these presuppositions alongside rival possibilities. My hope is that this project will aid the development of more fruitful antidiscrimination law scholarship moving forward.

Keywords: Antidiscrimination Law, Discrimination, Legal Theory, Philosophy, Legal Philosophy, Discrimination

Suggested Citation

Whitney, Heather M., The Autonomy Defense of Private Discrimination (February 22, 2017). Available at SSRN: https://ssrn.com/abstract=2922241 or http://dx.doi.org/10.2139/ssrn.2922241

Heather Whitney (Contact Author)

Harvard Law School ( email )

University of Chicago - Law School ( email )

1111 E. 60th St.
Chicago, IL 60637
United States

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