Legal Theory Workshop: Wrongs, wrongfulness, and culpability in indirect discrimination law

Legal Theory Workshop with guest Tarun Khaitan, Associate Professor of Law at University of Oxford. Tarun Khaitan holds a BA/LLB (Hons) from the National Law School in Bangalore, and attended Oxford for his DPhil as a Rhodes Scholar. Khaitan's research interests include public law, discrimination law and legal theory. OUP has recently published his monograph entitled 'A Theory of Discrimination Law'. He will speak on wrongs, wrongfulness, and culpability in indirect discrimination law.

Abstract

In this paper, we examine the nature of the duty-imposing norms in indirect discrimination (ID) law. We aim to clarify two main issues. First, we determine the extent to which these norms should be understood as imposing particular duties – duties owed to particular individuals or as imposing general duties – duties owed to no one in particular – or, perhaps, both. Let’s call this the duty inquiry. Second, we clarify the extent to which considerations of culpability should be considered to be aspects of the wrong(s) of discrimination. Let’s call this the culpability inquiry. This paper is motivated by a recent trend in British and American law to doubt the legitimacy of the prohibition on ID and to attempt to curtail its operation. We show through these inquiries that the prohibition on ID is legitimate. To do so, we carve a nuanced conceptual location for ID, as necessitated in part by corrective justice and in part by distributive justice.

The first part of the paper provides a general explanation of the concepts of particular and general duties. The second and third parts undertake the duty inquiry and culpability inquiry respectively. We find that prima facie indirect discrimination usually entails the breach of two distinct duties, making it wrong and wrongful. We also claim that while indirectly discriminatory acts can be wrongful though not otherwise culpable, culpability considerations are nonetheless relevant to supporting the liability regime for indirect discrimination. The fourth part offers observations on the structure of discrimination law in light of our analysis.

For more information, please contact Professor paul [dot] miller [at] mcgill [dot] ca (Paul Miller).