David Bourget (Western Ontario)
David Chalmers (ANU, NYU)
Rafael De Clercq
Jack Alan Reynolds
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San Diego Law Review 43 (Fall):1043 (2006)
In the United States, discrimination based on race, religion, and other suspect categories is strictly regulated when it takes place in hiring, promotion, and other areas of the world of commerce. Discrimination in one's private affairs, however, is not subject to legal regulation at all. Assuming that both sorts of discrimination can be equally morally wrong, why then should this disparity in legal treatment exist? This paper attempts to find a theory that can simultaneously explain these divergent treatments by providing an account that fits the various aspects of our legal practices and our attitudes toward them, and justify those practices by providing an account that makes the divergence attractive from a moral point of view. The sorts of basis for the disparity are discussed: differences in our epistemological access to private and commercial discrimination; different effects these forms of discrimination have on their victims; and differences in the relative importance of the value of autonomy at stake. I conclude that while considerations of autonomy provide the best explanation for the disparity in attitudes toward the legal treatment of discrimination, they still fall well short of an explanation that completely fits and justifies our current practice. Specifically, I suggest that the disparity between our current legal treatment of private versus commercial discrimination is based on a mistaken belief about the greater importance of autonomy in the private realm than in the commercial sphere. Because this belief is mistaken, a practice designed to consistently respect the value of autonomy ought to differentiate less between private and commercial discrimination, either by regulating the former more heavily, or by regulating the latter less heavily.
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