Curtis Crawford (April 2002)
(An earlier version of this essay appeared in
Academic Questions 14:3, Summer 2001 as
"Rescuing the Concept of Discrimination" )

The Civil Rights Act of 1964 is justly celebrated as the most important antidiscrimination statute in American history. During the long debate preceding its adoption, few words were spoken as often as "discrimination." Yet the minds of the legislators never managed to meet on the meaning of this key word. Opponents repeatedly complained that "discrimination" was nowhere explicitly defined in the bill. But no amendment to fill this void was offered, by either side. The bill's proponents repeatedly declared that racial "discrimination" is wrong, and challenged opponents to deny it. No one took up the challenge. Southern opponents, the representatives and champions of a racially segregated society, never spoke in favor of racial "discrimination," and often condemned it. Supporters of the bill said that "discrimination" based on race, religion, national origin or sex means different treatment on these bases. By this definition, racial segregation is obviously a form of "discrimination." So opponents must have been using a different definition of "discrimination," but they never said what it was.

After nondiscrimination became the law in many areas of national life, the divergent definitions of "discrimination" reappeared in a new setting. Affirmative action programs, giving preference based on race, ethnicity or sex, became widespread in higher education, private and public employment, and government contracting. The critics of these programs maintain that preferential treatment based on race, ethnicity or sex is clearly different treatment on these bases, and therefore is "discrimination." The defenders of affirmative action never speak in favor of "discrimination," often condemn it, and deny practicing it. Their definition of "discrimination" is evidently different from their opponents', but they do not say what it is.

In contemporary public discourse, the notion of discrimination is thoroughly muddled. The chaos stems not only from partisan manipulation but from ambiguities in the concept itself. The most common definitions of "discrimination" contradict each other, and individuals often switch from one definition to another.

A general consensus that "discrimination" on certain bases is wrong, and should be barred, is fruitless when people cannot agree what it is. Unless the idea at the heart of a prohibition is clear, the rule has no power. It cannot be learned and obeyed; it cannot govern. Moreover, its wisdom cannot be discussed. No profitable debate can occur as to whether it should be accepted, extended, limited or rejected.

What do people mean by "discrimination"? If referring to a kind of treatment, they almost always mean one that is different or unequal. But their definitions vary materially, depending on the bases of treatment or its reasons. Ask yourself how you use the term. For example, would you call it "discrimination" when colleges treat applicants differently based on their race? On their high-school grades? On their place of residence? How about when airport security officers treat passengers differently based on their national origin? On their sex? Is it "discrimination" when stores give discounts to senior citizens? When the constitution denies the vote to citizens less than18 years old? When life insurance companies treat applicants differently based on their age? On their sex? On their health? On their genes?

This essay has two aims: to criticize some common definitions of "discrimination," and to suggest an alternative. On the way, we shall examine the two most prevalent definitions (each with an essential element lacking in the other), three additional definitions that seek unsuccessfully to combine these elements, a dictionary definition that takes an important step forward, and a proposed definition that I believe meets our requirements.

Before inspecting these definitions, some distinctions will be helpful. In the long history of the word, "discrimination," the sense shared by all the definitions under discussion is comparatively recent. An older sense, still listed first in most dictionaries, is the act or power of making accurate distinctions. It pertains to perception or discernment, usually carries a favorable connotation, and is illustrated by phrases such as "discriminating between appearance and reality." This essay is concerned with a sense that first appeared in the 19th Century. It pertains to treatment, carries a negative connotation, and is illustrated by "discriminating in favor of vested interests or against foreigners." When people speak of racial, ethnic or gender "discrimination," they ordinarily use the word in this sense.

Within the realm of "discrimination" as a kind of treatment, there is another difference in usage, less easily handled. Does "discrimination" include (a) different treatment, even when it is equal, or only (b) unequal treatment? If a restaurant serves blacks and whites the same food at the same price in different but equally attractive rooms, it treats them differently but equally. If it offers the same food to one race at a higher price or with inferior accommodations, it treats the two races unequally, as well as differently.

Is there good reason to reject either view? They both have a long history in morality and law, as well as ample dictionary authority. As criteria, different has the advantage of greater clarity; unequal, the advantage of greater importance. Arguments can be made for either position, but none seems conclusive. In my judgment, we are stuck with both; they appear in every definition that we shall discuss. They are most clearly designated as (a) different but equal treatment, or (b) unequal treatment. Since they must often be named, I shall use the shorter phrase, different or unequal treatment. Fortunately, the margin of conflict between the two meanings is not large. All unequal treatment is ipso facto different, and almost all the different treatment that people care about is unequal.

We can now turn to the seven definitions of "discrimination" at issue.

1. The Descriptive Definition: "Discrimination" is any different or unequal treatment. This formulation has great advantages. It describes, simply and clearly, what the speaker has in mind; it is easy to understand, to remember and to apply. Under this definition, when nondiscrimination is commanded, everyone knows what is forbidden. It is probably the most common answer that people would give, if asked what they mean by "discrimination" in the context of treatment, and it is implied if not stated in countless antidiscrimination statutes. (It used to be my definition.) Nevertheless, it has a formidable disadvantage. Few people, when speaking of different or unequal treatment that they approve, whether based on race or some other factor, label it "discrimination." In this situation, almost everyone seems to adopt . . .

2. The Judgmental Definition: "Discrimination" is any different or unequal treatment that is unjust. By calling an action "discrimination," the speaker expresses his judgment that it is wrong. The definition would be clearer, if people agreed as to which differences or inequalities in treatment are unjust. Since no such consensus exists, we cannot know whether the treatment labeled "discrimination" by the speaker would seem unjust to others. As a result, the definition reduces in practice to any different or unequal treatment that the speaker considers unjust.

This definition can boast universal usage, a powerful argument for certification. Probably every reader of this essay is a regular user. Ask yourself whether you ever call a difference in treatment "discrimination," if you think it desirable. Consider a few situations in which many people think it a good idea to treat people differently or unequally based on their race: desegregating a school or integrating an apartment building, increasing the diversity of a police force or political convention, getting married, adopting children, avoiding strangers at night. In those cases where you approve, would you still label the difference in treatment "discrimination"? Another way to test your usage of the word is by applying it to treatment based on a group classification other than race. As, for example, travel discounts for the elderly, separate athletic competition for men and women, or tougher college admission requirements for out-of-state applicants. All three are different or unequal treatment, based respectively on age, sex or place of residence. But chances are that you do not label them "discrimination," unless you disapprove.

Because of these and other anomalies, people drop the Judgmental Definition as often as they employ it. Consider the statement: "Racial discrimination in college admissions is unjust." Whoever makes or hears this statement supposes it to take a stand, to say something. If the statement employs the Descriptive Definition of "discrimination," the supposition is correct. The statement then becomes: "In college admissions, any different or unequal treatment based on race is unjust." But if the Judgmental Definition is used, the statement says nothing. It becomes a tautology: "In college admissions, any different or unequal treatment based on race that I consider unjust is unjust."

Or take the statement: "Age discrimination in faculty selection is sometimes just." Those who make or hear this statement suppose it to be coherent. Employing the Descriptive Definition, it is so, becoming: "In faculty selection, different or unequal treatment based on age is sometimes just." But using the Judgmental Definition, the statement contradicts itself, becoming: "In faculty selection, different or unequal treatment based on age, which I consider unjust, is sometimes just." That we suppose statements like the first example to be meaningful, and statements like the second example to be coherent, implies our reliance on the Descriptive instead of the Judgmental Definition.

Now we use it, now we don't. This, alas, will prove true of almost all the definitions canvassed in this essay. Beyond this, however, lies another flaw: the Judgmental Definition fails to define. Suppose that certain corporations, using this definition, promise not "to discriminate" on the basis of sex when hiring, promoting or firing. What have they promised? They have promised not to treat people differently or unequally, based on sex, when they consider it unjust. But since we do not know the circumstances in which these corporations consider such treatment unjust, we have no idea what they are promising not to do.

The same problem arises, in any setting, when a rule is adopted against "discrimination," whatever its basis. If the rule uses the Judgmental Definition, what does it prohibit? It prohibits any differences or inequalities in treatment on the basis in question that are considered unjust by the rule-maker. But, since we do not know which differences or inequalities in treatment he considers unjust, we do not know what the rule forbids. Indeed, this drawback clings to the Judgmental Definition wherever it goes.

As noted above, the Descriptive Definition, that "discrimination" is any different or unequal treatment, fails to take into account the negative connotation of the word it seeks to define. The failure occurs because the idea of different or unequal treatment in itself is morally neutral. Since "discrimination" implies something morally wrong or doubtful, it cannot be adequately defined by a phrase that does not. The Judgmental Definition, that "discrimination" is any different or unequal treatment that the speaker considers unjust, includes the negative connotation that is missing from the Descriptive Definition. But the price of this success is often redundancy or incoherence, and always a failure to define.

The reciprocal strengths and weaknesses of these two definitions indicate two essential elements in the definition we seek: it must be (a) specific in its denotation and (b) morally negative in its connotation. Of the various usages that try to accomplish this, I shall discuss three. These agree that "discrimination" means different or unequal treatment, while limiting it to a kind that seems morally wrong or doubtful. According to them, different or unequal treatment constitutes "discrimination" only when it is, respectively, adverse, motivated by prejudice, or unlawful.

3. The Against Definition: "Discrimination" is any different or unequal treatment that seeks to produce a disadvantage. Underlying this definition is the view that "discrimination" is always against: it excludes or oppresses; it does not befriend or support. Accordingly, a difference in treatment whose purpose is to benefit some group does not count as "discrimination." Thus, shopping discounts designed to benefit senior citizens are not considered "discrimination" under this definition, but hiring policies designed to reduce the proportion of senior employees are so considered. Or suppose that a Latino applicant is favored over an Arab, based on ethnicity. The difference in treatment is "discrimination," if its purpose was to exclude Arabs; it is not "discrimination," if its purpose was to include more Latinos.

The principal fallacy in this definition is its attempt to treat a two-sided concept as if only one side were real. It forgets that "different" is an adjective comparing at least two things. Different treatment that favors Latinos over Arabs faces two ways, giving advantage to Latinos and disadvantage to Arabs. There is no such thing as a difference in treatment that confers relative advantage without conferring relative disadvantage, or vice versa. One cannot provide a true description of such a difference by pointing only to the disadvantage and calling it "discrimination," or only to the advantage, and calling it not "discrimination." The practical result of the Against Definition is that the side omitted from the description is soon lost to consciousness and to judgment.

This is clear enough in any selection process with more applicants than places. For example, to admit college students based on their alumni connections necessarily crowds out those who would have been admitted had such connections not been a factor.

It might be argued that in certain situations a difference in treatment can favor some persons without displacing anyone. Take, for example, a scholarship fund for nonwhite students only. It adds to the amount of financial aid available for nonwhites, without reducing the amount for whites. Hence, the argument might conclude, there is no "discrimination": the gift does not "discriminate" against the excluded whites, since it does not make them poorer.

It is true that those students who are not eligible for the scholarships are no worse off than before. However, this is not relevant to whether they have been treated differently to their disadvantage. When speaking of different treatment, the pertinent comparison is not to one's situation before the treatment occurs, but to how others are treated by the same decision or program. If a difference in treatment makes it easier for Group B than for Group C to receive a benefit, the members of Group C are treated differently to their disadvantage, even though nothing they already possessed is taken from them.

The point is brought home by what may be called the Racial Substitution Test. Imagine that the favored group is white. Suppose a case, highly improbable now but familiar in American history: a college is founded, admitting whites only. Educational opportunities are thereby increased for whites, but in no way reduced for students of color. The latter suffer no loss, compared to their situation before the new college existed. Have these nonwhite students, nevertheless, been treated differently to their disadvantage? Of course. When the racial preference favors whites, everyone sees that preferential treatment is a stick with two ends—one bearing advantage and the other disadvantage.

4. The Prejudice Definition: "Discrimination" is any different or unequal treatment, only when it is motivated by prejudice. This usage has the advantage of freeing different treatment from the label of "discrimination," when its motive is to promote the general welfare. Proponents of affirmative action have found it a congenial approach. Under this definition, a college does not "discriminate" if, when exercising racial preference in student admissions, faculty hiring or course content, it is not motivated by prejudice for or against any racial or ethnic group.

However, the definition is vague: those who employ it vary hugely in their understanding of prejudice. It is arbitrary: if an undesirable motive makes different or unequal treatment "discrimination," why stop with prejudice? Why not include anger, envy, hatred, greed, favoritism, partisanship, retaliation, aggression, domination and so on? It is commonly inscrutable: knowing whether the unequal treatment proceeds from the noble motive professed by the agent or the ugly one proscribed by the definition is not easy.

Moreover, this usage places its votaries squarely in contradiction with themselves. They may find it helpful in certain circumstances, but they often abandon it. For example, when the subject is the amount of present discrimination against blacks and other minorities, they count as "discrimination" any unfavorable treatment, whatever the motivation. The same thing occurs when they canvass the severity of discrimination in American history. Just like the rest of us, they label historical instances of different or unequal treatment based on race as "discrimination," whether or not prejudice was involved—indeed, whether or not the true motivation for the conduct can be reliably guessed at this distance.

5. The Illegality Definition: "Discrimination" is different or unequal treatment, only when it is unlawful. This may have been the definition employed by the Clinton administration, when insisting that federal affirmative-action programs do not "discriminate." So also, the many institutions that formally assure the public that they do not practice "discrimination," notwithstanding the robust racial preference in their selection policies. They can point to regulations, laws or court decisions that arguably legalize unequal treatment based on race in the circumstances in which they practice it.

But, like the third and fourth definitions, this one seems ad hoc. Its adherents readily backslide to other usages, in which illegality is not dispositive. Possibilities abound of unequal but perfectly lawful treatment that they would surely call "discrimination": e.g., if voters treat minority candidates for public office unfavorably based on their race, or the Senate does the same to nominees for the federal courts, or firms not covered by antidiscrimination law do likewise to applicants for employment.

Moreover, these desertions are petty, compared to the massive abandonment that occurs when dealing with the nation's past. If "discrimination" means any different or unequal treatment only when it is unlawful, America's "grievous history of racial and ethnic discrimination" largely vanishes. All the different or unequal treatment is still there, but most of it, being lawful at the time, cannot be called "discrimination." This is understandably intolerable to adherents of the Illegality Definition; for any setting before 1965, they drop the requirement that different or unequal treatment must be illegal in order to be discriminatory.

Our inspection of the last three definitions reveals the substantial role of partisanship in their creation and use. Purporting to be impartial, they often function to remove the onus of "discrimination" from unequal treatment that favors certain groups. The country having decided that "discrimination" based on race or gender is usually wrong, the supporters of preferential treatment for nonwhites and women have sought definitions of "discrimination" that do not jeopardize their policies. As we have seen, these definitions often turn against their users, who then switch.

Thus far, the concept of "discrimination" remains unclear. The Descriptive Definition, while specifying the behavior involved, fails to convey the concept's negative connotation. The Judgmental Definition includes a negative moral judgment, but fails to specify what is condemned. Users of the former definition regularly switch to the latter and vice versa. The remaining definitions, which seek to combine the virtues of the first two, are also unsatisfactory. The Adverse Definition rests on the fallacy that if you focus on one side of a two-sided coin, the other side ceases to exist. The Prejudice Definition is vague, arbitrary and commonly inscrutable. It and the Illegality Definition are often ad hoc, applying to some situations and not others, partisan rationalizations to justify conduct rather than impartial criteria to clarify it.

In this babble of contrary voices—definition contradicting definition and users contradicting themselves—we have yet to consult the dictionary. We need a definition that is clear and consistent, both within itself and with general usage. The elements that everyone agrees are necessary for "discrimination" are different or unequal treatment and a negative connotation. A formula that tries to incorporate these elements, while avoiding the pitfalls, is offered in slightly different words by three American reference dictionaries. [1]

6. The Dictionary Definition: "Discrimination" is any different or unequal treatment on a categorical basis that disregards individual merit. This definition has a solid foundation: the widespread belief that merit should ordinarily be the basis for treatment. To disregard individual merit strikes many people as the very essence of "discrimination." By requiring a basis that disregards individual merit, this definition explains the negative connotation of the word it defines. Moreover—and this step is crucial—by separating the objects of description and of moral judgment, it is able to include both functions. What is described is an instance of treatment; what is judged is the appropriateness of its categorical basis. To qualify as "discrimination," the treatment must be different or unequal, and the basis must have nothing to do with individual merit.

At first glance the definition seems reasonably clear. When based on something like race, presumably unrelated to individual merit, different or unequal treatment is "discrimination"; but when based on something like ability, it is not. As one looks more closely, however, the clarity recedes. One problem is the ambiguity of "merit." It commonly means a praiseworthy quality, a sense unfortunately too narrow for the present purpose. Suppose an emergency distribution of food, in which the people who are starving receive more. Is this difference in treatment "discrimination," under the Dictionary Definition? The answer would have to be Yes, if "merit" is limited to praiseworthy qualities. So defined, "merit" is clearly disregarded, if hunger is the basis of treatment. However, we all feel that hunger, though not praiseworthy, is something that deserves (merits) consideration. It is a "merit" in a wider sense: an action or quality that warrants a difference in treatment, favorable or unfavorable, that would otherwise be inappropriate. Only by understanding "merit" in this extended sense can the Dictionary Definition apply to needs, weaknesses, misconduct and other factors that are not praiseworthy but may deserve consideration. But this extension of the meaning of "merit" makes the Dictionary Definition very like the Subjective Definition: "discrimination" is any different or unequal treatment on a categorical basis that the speaker considers undeserving.

Another problem with the Dictionary Definition is the meaning of the phrase: "in disregard of individual merit." The problem appears if you try to imagine whether the definition's formulators would call various examples of different or unequal treatment "discrimination" or not. For instance, the United States Constitution, presumably to secure greater maturity in the Senate, denies that office to citizens under thirty, thereby treating them unequally based on age. Does this basis, in this context, "disregard individual merit"? Yes, since the rule bars everyone under thirty, without regard to each person's maturity? No, since there is a general correlation between the age required and the maturity sought?

Or consider the discounts on air travel given to seniors. Assume that the motives for this unequal treatment, based solely on age, are society's gratitude for work done and/or its desire to alleviate financial hardship. Does the use of age as the basis for the discounts "disregard individual merit"? Yes, since individual seniors receive the advantage, regardless of the quality of their past work or the degree of their present need? No, since there is a correlation between age and the conduct one seeks to reward, as well as the need one seeks to alleviate? The individual, regardless of merit, receives the discount, yet the policy (purportedly) exists as a response to individual merit in millions of people.

Does the motive make a difference? Assume that the airlines discount unwillingly, to stay competitive; or willingly, to increase profits by expanding sales to people who could not afford the standard price. In this context, does age as the basis of unequal treatment "disregard individual merit"? Yes, since the preferential treatment is motivated by business advantage, not by any merit in those who receive it? No, since every customer who buys as a result of the policy has the merit (in the eyes of business) of helping it succeed? If motive does make a difference, the difficulty and uncertainty in applying the criterion increase, since motives are hard to know and weigh.

Separate basketball teams for men and women is another example of unequal treatment that can be used to test the formula. Assume that the policy exists because of a substantial gender gap in basketball ability. Is this discriminatory, since men are assigned to the male and women to the female team without regard to individual ability? Or not discriminatory, since the sexual difference in individual ability is the reason for the policy?

Finally, consider preferential college admission for black, Latino and Native Americans to increase the variety of student backgrounds, experiences and perspectives. Is this discriminatory, since the preference is based on race, without regard to the individual's contribution? Or nondiscriminatory, there being some correlation between racial membership and the kind of variety sought?

In each case one is caught in a crossfire between plausible, opposite conclusions: (1) The policy disregards individual merit and thus "discriminates," since each decision is made without regard to the merit of each person affected. (2) The policy regards individual merit and thus does not "discriminate," since it exists because of group differences in the individual merit with which it is concerned. Weakened by the ambiguity of "merit," the Dictionary Definition founders on contradictory interpretations of the meaning of "disregard."

Nevertheless, the framers of the Dictionary Definition made a crucial discovery, which will enable us to reach our goal. They sensed the need to transfer the moral judgment implicit in the idea of "discrimination" from the act of different or unequal treatment to the categorical basis of the treatment. Their choice of terms failed to make the transfer secure. However, with some crucial adjustments we shall have what we need.

The reader will recall the first two definitions of "discrimination": (1) any different or unequal treatment (the Descriptive Definition), and (2) any different or unequal treatment the speaker considers unjust (the Judgmental Definition). The solution I propose is to combine the first definition with a modification of the second, giving us both a descriptive component and a judgmental component, each with its own sphere of operation. The descriptive sphere specifies the kind of treatment; the judgmental sphere judges the categorical basis of treatment.

7. The Proposed Definition: "Discrimination" is: (a) any different or unequal treatment (b) on a categorical basis the speaker presumes to be ordinarily unjust. If both criteria are met, we have "discrimination." If (b) is met but not (a), we have "nondiscrimination." If (a) is met but not (b), we have different or unequal treatment, but neither "discrimination" nor "nondiscrimination."

Thus, according to the Proposed Definition:


1. It is "discrimination," when different or unequal treatment has occurred on a categorical basis the speaker presumes to be ordinarily unjust.

2. It is "nondiscrimination," when no different or unequal treatment has occurred on a categorical basis the speaker presumes to be ordinarily unjust.

3. It is neither "discrimination" nor "nondiscrimination," when different or unequal treatment has occurred, but not on a categorical basis the speaker presumes to be ordinarily unjust.

To illustrate, imagine four colleges, each making admissions decisions. Add to the equation a proposed categorical basis for different treatment that most Americans consider ordinarily unjust, namely race. Colleges A and B share this presumption. However, College A treats applicants for admission differently based on their race, whereas College B does not. Using the Proposed Definition of "discrimination," College A would say: "We discriminate among applicants for admission based on their race." And College B: "We do not discriminate among applicants for admission based on their race."

Colleges C and D, on the other hand, do not presume that race is ordinarily an unjust basis for different treatment. College C treats applicants for admission differently based on their race and College D does not. Using the Proposed Definition, neither school would mention "discrimination." College C would say: "We treat applicants for admission differently based on their race." And College D: "We do not treat applicants for admission differently based on their race."

Note that the phrase, considers unjust, in the Judgmental Definition is replaced in the Proposed Definition by presumes to be ordinarily unjust, which expresses a negative judgment that is less conclusive. A presumption against a categorical basis of treatment places the burden of proof on whoever would use it, but the presumption can be defeated if the reasons are strong enough. The force of the presumption and the strength of the reasons necessary to overthrow it vary with the basis and with the definer. This approach is partly suggested by the Supreme Court's interpretation of the Equal Protection Clause, according to which certain categorical bases of unequal treatment are regarded as "constitutionally suspect classifications," thus deserving stricter scrutiny. By and large, the same categories that are deemed constitutionally suspect by the Court (e.g., race, gender, age) are presumed ordinarily unjust by the public.

The Proposed Definition may seem awkward to use, because of its two-part structure. However, once grasped, it is easy to apply. One must be able to recognize a difference or inequality in treatment, while identifying the category on which it is based. Beyond that, one must have an opinion, usually developed long since, concerning the morality of using that basis. Two operating rules need to be followed: (1) The speaker's judgment of the basis must derive from its use overall as grounds for different or unequal treatment, not its use in the situation at hand. (2) If the speaker does not regard the basis as presumably unjust, he must not employ the words, "discrimination" or "nondiscrimination." Their use in such a context is out of place and courts misunderstanding.

The Descriptive and the Judgmental Definitions are not only prime sources of the Proposed Definition, but also popular in their own right. Contrasting their consequences with those of the Proposed Definition will hone the reader's acquaintance with the latter, as well as his understanding of speakers who continue to employ the former.

Take, for example, the owner of an apartment building, who believes that he ought to treat rental applicants unequally based on their race, in order to keep the building racially integrated. If our landlord uses the Descriptive Definition correctly he will say: "In this case, I 'discriminate' based on race. 'Discrimination' signifies the fact of different or unequal treatment, not a moral judgment about it." Indeed, he will call unequal treatment "discrimination," whether he considers the treatment or its basis good, bad or morally neutral.

If he uses the Judgmental Definition correctly he will say: "In this case, I do not 'discriminate' based on race. 'Discrimination' signifies not only the fact of different or unequal treatment but also a judgment that the treatment is unjust. In these circumstances my treating people unequally based on their race is not 'discrimination,' since I consider the treatment just." He will deny that any unequal treatment he considers just, whatever its basis, is "discrimination."

If he uses the Proposed Definition correctly he will say (as one of the large majority who presume that race is ordinarily an unjust basis for unequal treatment): "In this case, I 'discriminate' based on race. 'Discrimination' signifies the fact of different or unequal treatment plus a presumption that its basis is ordinarily unjust. In these circumstances my treating people unequally based on their race is 'discrimination,' but not unjust, since the benefits of such treatment in this case outweigh the presumption against it." On the other hand, if he does not presume that race is ordinarily an unjust basis for different or unequal treatment, he will not use the word, discriminate, since it does not apply to his conduct.

The fatal disadvantage of the Descriptive Definition was its failure to account for the negative connotation of "discrimination." Our Proposed Definition solves that problem. The fatal disadvantage of the Judgmental Definition was its failure to specify what the speaker is talking about. The Proposed Definition also fixes that.

The reader will recall that statements using the Judgmental Definition often collapse into tautology or incoherence. "Racial discrimination in college admissions is unjust" becomes: "Race-based different or unequal treatment in college admissions that I consider unjust is unjust." "Age discrimination in faculty selection is sometimes just" becomes: "Age-based different or unequal treatment in faculty selection, which I consider unjust, is sometimes just." Using the Proposed Definition, these problems vanish. The first statement becomes: "Different or unequal treatment in college admissions because of race, a basis that I presume to be unjust, is indeed unjust." And the second statement becomes: "Different or unequal treatment in faculty selection because of age, a basis that I presume to be unjust, is nevertheless sometimes just."

With the Proposed Definition, the fog lifts. What the speaker means is clear, whether the presence of "discrimination" is asserted or denied, advocated or condemned, permitted or forbidden. Under most of the definitions we examined, one often cannot tell what the speakers have in mind. This uncertainty is disastrous for the nondiscrimination rule. To command, a moral principle need not be absolute, but it must be unmistakable.

Unlike many of its rivals, the Proposed Definition is impartial. It does not favor or disfavor any group, policy or ideology. It even leaves each speaker free to decide which categorical bases of different or unequal treatment (e.g., race, ethnicity, sex, age, religion, political affiliation, sexual orientation, disability, genes) he presumes to be ordinarily unjust. If the basis is not so judged, the definition impartially denies the label of "discrimination" to any treatment grounded thereon. If the basis is presumed unjust, the definition impartially places the label of "discrimination" on any different or unequal treatment so grounded, no matter who inflicts or suffers it.

Finally, we have here a definition for all seasons. The honest user has no cause to switch formulas, thereby continually contradicting himself and confusing his neighbor. The definition serves equally well—whatever the treatment or basis, whoever is benefited or aggrieved, whenever the time, wherever the place.

As we have seen, the basic steps needed for reaching a satisfactory definition of "discrimination" were provided by the Descriptive, the Judgmental and the Dictionary Definitions. One could have moved directly from these to the Proposed Definition, avoiding an extended examination of false starts. I chose the long way around, partly because the solution means more when the problems are better understood, and partly because it is important to know what the millions who do not employ the Proposed Definition mean when they use or withhold the label, "discrimination."

Indeed, the semantic chaos that has plagued the use of "discrimination" might reasonably be cited as an argument for abandoning the word entirely. But even if one stopped using it to express one's own thoughts, one cannot remove it from the speech of others, living and dead, whose thoughts one needs to address. Neither the past nor the present would allow us to extirpate the word, "discrimination." Moreover, the moral condemnation it bears represents a social advance that should not be thrown away. The word is well worth the fair price of continuing to speak it: an awareness that definitions differ, and a willingness to make one's own explicit.


Endnote 1.

Webster's Third New International Dictionary Unabridged (1966) – discriminate 2: "to make a difference in treatment or favor on a class or categorical basis in disregard of individual merit (~ in favor of your friends) (habitually ~ against a certain nationality)."

The American Heritage Dictionary of the English Language, Third Edition (1992) – discriminate 2: "To make distinctions on the basis of a class or category without regard to individual merit … was accused of discriminating against women; discriminated in favor of his cronies."

The Random House Unabridged Dictionary, Second Edition (1997) – discriminate 1: "to make a distinction in favor of or against a person or thing on the basis of the group, class or category to which the person or thing belongs, rather than according to actual merit … The new law discriminates against foreigners. He discriminates in favor of his relatives."