Would You Get Rid Of Discrimination If You Could?

Have you ever stopped to consider why it is that an Irish bar owner can be hauled before the authorities for refusing to serve Germans in his bar due to his being anti-German, but a German customer can’t be hauled before the authorities for refusing to drink in a bar run by an Irishman due to his being anti-Irish (you can substitute ‘Irish’ and ‘German’ for any nationalities you like)?. Or to use a real life example in the UK in 2010, have you ever stopped to consider why it is that a Christian couple running a Bed and Breakfast can be hauled before the authorities for refusing to rent a room to a homosexual couple, but a couple refusing to stay in a Bed and Breakfast because it is run by two homosexuals can’t be hauled before the authorities?  I think on first inspection you’re going to think the answer is obvious, but on closer inspection it won’t be so obvious. 

I find it is something that doesn't get enough attention in the world; An Irish man running a bar can get in trouble for refusing to serve a German on grounds of being anti-German; yet a German man won't get in trouble for refusing to drink in an Irish man's pub on grounds of being anti-Irish.  Both men are guilty of exactly the same level of discrimination, but the authorities are only interested in, or capable of, punishing one of the offenders.  We can say the discrimination is equally bad on both sides, but circumstances force us to respond to them differently.  I wonder how much we want to do things differently, or whether easy options are better, as we so often lack the courage to be better versions of ourselves.  Consider how absurd it would be if two thefts occurred on Saturday afternoon, and the Police declared that only one of the offences was a theft because they had no hope of catching the other offender.  Or consider the indignation if two men, Joseph the paid accountant and Tommy the voluntary youth worker, each committed a theft independently, but the State declared that only Joseph’s act was a theft because he is the only one in paid employment.  The reason our reaction would be one of shock is that we don’t think the crime of theft depends on the police’s chances of catching the offender or on what kind of job the offender has. 

But notice this is precisely what the State does with discrimination.  An Irish man running a bar can get in trouble for refusing to serve a German on grounds of being anti-German because in running a business he is forced to comply with anti-discrimination laws, and because the authorities know that any policy he adopted that precluded Germans from his bar would be easily scrutinised by the authorities.  Conversely, when a German man refuses to drink in an Irish man's pub on grounds of being anti-Irish, he operates under a different radar – one in which he is free as a customer to be as discriminatory as he likes, with virtually no chance of being found out.  Clearly, just like the theft examples, I don’t think anyone is saying that they endorse a different feeling for the two kinds of discrimination, only that they are forced to view them differently in the eyes of the law because they only have a hope of catching one kind of discriminator – the one who runs a business.  

Let’s turn for a moment to the real life event that occurred in 2010 when a Christian couple running a Bed and Breakfast were hauled before the authorities for refusing to rent a room to a homosexual couple.  The problem we have in trying to answer the ‘Bed and Breakfast proprietors/homosexual customers’ problem is that there is no general assertion that we can make to cover all the nuanced particulars attached to this situation (and others like it).  We want to say that anyone who runs a Bed and Breakfast is morally compelled to rent out to everyone without unfair discrimination – but I can see no general grounds on which that kind of particularity can hold.  Is there a general moral compulsion for everyone in the country to rent out rooms to paying customers?  Clearly not, and most of us are not providing this service to anyone, so there is no general rule here.  And equally there is no general rule that says all discrimination is wrong, because humans discriminate in a number of ways – many of which are healthy and beneficial.  So given the foregoing, I don’t see how the homophobic Christian couple running a Bed and Breakfast can be indicted from any general principle – because to do so would require a general moral compulsion either to rent out rooms to people, or to never discriminate, and there are no grounds on which these apply.

Of course, despite our not having a general aversion to all kinds of discrimination, no one needs telling that there are many instances of discrimination that we do find unfair.  I think in spite of what we’ve said above, most of us are appalled when we read about the Bed and Breakfast proprietors’ conduct. So given that some discrimination is good, and some is bad, it might help if we consider some examples of how discrimination occurs in everyday life.

On how we discriminate

Here’s a good kind of discrimination.  Suppose you live on an island consisting of two tribes of people – Tribe A and Tribe B.  Statistics show that on an annual basis, 97% of the crime on the island is committed by people in Tribe A.  If you were thinking clearly, I don’t think you would want the police to focus their attention evenly by targeting 50% of people from Tribe A and 50% from Tribe B.  If you did you would be grossly ignorant of prudent police procedures – which is to say that it is much better that police target people who are statistically more likely to be criminals.  Clearly, it is better to target people in Tribe A, so it is necessary to discriminate (see this Blog post of mine for more of an elaboration on this point).

There are other examples of discrimination. Sellers in business raise prices to target customers that have less price-sensitivity, and slash prices to target bargain hunters that are more price-sensitive.  Also, you can say that student and pensioner discounts are targeted special offers, but you could also say that technically speaking those offers discriminate against people that are not students or pensioners.  Lastly, prospective employers discriminate against prospective employees for all kinds of reasons, such as having the wrong sounding name, the length of unemployment, and physical (un)attractiveness, to name but three. 

There are plenty of surreptitious kinds of discrimination too that occur largely unnoticed.  I have a friend who went on The Weakest Link (a quiz show in which contestants have to vote of the perceived weakest player), and he explained how much more intense it is in front of live cameras.  Given the intensity of the pressure, I suggested that contestants relied more on instincts, and that groups like ethnic minorities or the elderly might find themselves discriminated against (albeit, on many occasions, subliminally) on a show like that, if contestants felt them to be less competent.  My guess is that if you analysed the show's history, recording the exit stages of ethnic minorities and the elderly, you'd find that the Gaussian bell curve is at its steepest in the early rounds.  The point is, discrimination isn’t all bad or unfair – it is a mix of the good, the bad and the ugly (and the surreptitious).   

What’s been shown is that there is no general rule that offers a sound blanket condemnation of discrimination – because some of those examples show how necessary discrimination is.  I think if the truth be known, what most of us really object to is unfair discrimination based on personal things beyond one’s control; things like age, gender, skin colour, nationality, ethnicity and sexual orientation.  Hence we think we can offer a good general moral compulsion from which we could derive the particulars - “There is a particular imperative not to unfairly discriminate against age, gender, skin colour, nationality, ethnicity and sexual orientation” – so if you run a Bed and Breakfast or a bar, one can derive from that general maxim that any particular act of unfair discrimination is wrong.  

But the trouble is, even that doesn’t help as much as we’d like.  Who is to say what constitutes fair and unfair discrimination in the case of, say, age?  Is it discrimination if a supermarket refuses to sell a 17 year old a bottle of beer?  You may say it is not discrimination because such a transaction is against the law, but that then leads to the question – is the law an unfair discriminatory law in itself?  Does the law unfairly discriminate against 17 year olds, when the legal drinking age could be lowered to 17 or 16? 

Let’s take gender too.  Some nightclubs have a tacit policy that if there are already too many men in the club doormen outside discriminate based on gender when they refuse men entry because the club owners want more women in the club.  But I don’t think there are many doormen being hauled before the authorities.  Club owners know that too many men in a club will on average return less profit than a club with a good mix of males and females – so they discriminate by asking the doormen to artificially catalyse the right balance to maximise profit.  Is that unfair discrimination? Perhaps – but it might be a form of discrimination that benefits the clubbing experience for both the men and women. 

Let’s also take geographical discrimination.  Almost all countries put in place a restriction on immigrants entering the country, and most people support a limit on immigration (they just disagree on what the limit should be).  Restrictions on immigration are worse for the economy (in terms of wage loss) than racial and sexual discrimination.  Migrants from poorer parts of the world are looking to work in more prosperous countries to bolster their earnings – that much is self-evident.  By endorsing a cap, people in relatively prosperous places like the UK and USA willingly disregard these gains by wishing to restrict the number of people allowed to take advantage of this prosperity.  As I've said repeatedly in other Blogs, there really is no justification for unfairly discriminating against someone based on nationality, just as there are no grounds for unfairly discriminating against someone based on skin colour, gender or ethnicity.  

Yet we discriminate on nationality and impose huge costs on those who happen to be on the much poorer sides of the border. When the foolish Government ministers encouraged us in the UK to 'Buy British' they did something that was not only morally questionable, but also economically incompetent.  It is morally questionable because when you encourage Brits to 'Buy British' you are at the same time encouraging them to discriminate against others based on nationality.  In case it’s not clear why, history shows us that when a large or powerful group discriminates against a small or powerless group then in terms of suffering it is usually markedly worse than when a small or powerless group discriminates against a large or powerful group.  A case in point; all the non-Brits in the world could more easily do without British products and services than Brits could do without products and services from non-Brits, which also rather proves the point about the self-harming effect of nationalistic discrimination.

Given the foregoing, the upshot is this; suppose we pretend for the sake of argument that we could all agree on what constitutes fair and unfair discrimination - we still would find it near-impossible to punish all kinds of discrimination, because there is so much of it at the heart of who we are, and because in many cases it is practically difficult to employ any punitive measures.  Take the Bed and Breakfast case as a fine example; having agreed (I hope) that unfair discrimination against prospective homosexual customers is to be frowned upon, and that anti-homosexual clients refusing to stay in a Bed and Breakfast run by a homosexual couple is also to be frowned upon – we’re happy that the Bed & Breakfast proprietors are told that they are not free to refuse customers whose views, sexuality or lifestyle they dislike.  But if we have a homosexual couple running a Bed and Breakfast, and homophobes who don’t want to stay there, it would be a lot harder to prosecute the homophobic proprietors than it would be the homophobic prospective customer(s).  If potential customers disapprove of the Bed & Breakfast proprietors’ views, sexuality or lifestyle they are perfectly free to go to other Bed & Breakfast establishments, whereas if the Bed & Breakfast proprietors’ disapprove of the customers’ views, sexuality or lifestyle, they are not free to refuse them a room without expecting to face charges from the authorities.  Quite simply, one kind of discrimination is being punished, whereas an equally bad discrimination from the other side of the counter is not. 

You may say this is absurd on the grounds that if a couple decides to be Bed & Breakfast proprietors then they have an obligation to adhere to a set of laws exclusive to people who rent out rooms.  But why should one’s occupation make any difference?  Discrimination is discrimination, irrespective of whether you’re a Bed & Breakfast proprietor, a barman, a postman or head of a department in the Treasury.  The real difference, I think, is not in how we feel about discrimination – it’s that we can easily set up laws that stop business owners discriminating against customers, but we can’t easily set up laws that stop customers discriminating against business owners by shopping somewhere else.

A la carte discrimination

While just about everyone dislikes unfair discrimination, the State can only legislate against unfair discrimination in a very limited way - so it prohibits only that which it has the power to do so, and it leaves the rest in the hands of humans, by way of a tacit appeal to human decency.  In other words, not only is it the case that the authorities would find it practically impossible to bring to justice everyone who unfairly discriminates – the very existence of our laws of the land are there because without an incentive people won’t assent to the behaviour we’d like.  The compulsion is a healthy one, but it is healthy because it's a good way to be, not necessarily because people should be forced to do it by the State (although, in the obvious case of rape and theft, I think it is good that it is enforced by law, of course).  What the State does is enforce something that we wish people would do willingly, but don't.  We want everyone to not murder, rape, thieve, and so forth, but not everybody pays attention to our wants, so laws are enforced that prohibit such behaviour.  But the reason human decency comes into it is that law can only deal with an offender after the event.  The law won’t stop you going out and raping someone (I hope your conscience will stop you) – but it will prosecute you afterwards.  What we’re saying here in relation to the above is that the difference between rape and unfair discrimination is that the authorities will seek to prosecute all offenders of rape, but they won’t look to prosecute all offenders of unfair discrimination.  It’s not simply the case that the State thinks rape is more serious than unfair discrimination, because it does look to prosecute some who unfairly discriminate.  It’s more the case that it has no hope of prosecuting a man who refused to stay at a Bed and Breakfast due to the proprietor being homosexual – so a lot of unfair discrimination goes unpunished.  

One last thing to consider, when it comes to the discrimination related to the couple in the Bed and Breakfast or Irish John running a bar – things get more involved when we realise that the supposed costs on society aren’t in economic terms costs at all.  At the beginning I asked you to suppose that Irish John opens a bar and puts up a sign saying he won't serve German people. I also asked you to suppose that a German (let’s call him Peter) walks into the bar and upon hearing John's voice, leaves the premises complaining that he doesn't like the Irish and has no wish to be served by an Irishman.  German Peter has employed the same level of discrimination as Irish John, but Peter gets away without any punitive measures simply because John owns a bar and Peter is only a customer in a bar.  Irish John is being held to a different standard because his discrimination is from the vantage point of a bar owner, whereas Peter’s discrimination is from the vantage point of a bar customer.  The argument to hold John to higher accountability is that John is imposing a cost on society by opening a bar and not serving German people.  While that is true, a broader perspective tells us that not only is anti-German John the bar owner imposing a cost on society, German Pete is imposing a cost on society by not drinking in bars run by people he doesn't like.  Most people realise this, but here’s the economic principle that I’ll wager most people miss; thinking in terms of economics, anyone who doesn't open a bar is imposing a cost on society too.  That’s how you must look at the situation if you are going to consider this properly.  In both cases, the customers do not get served - it's just that at least in John's case many people do get served, whereas in the case of you and me no one is getting served, because neither of us has opened a bar and sold drinks at all. 

If Irish John is imposing a cost on society by opening a bar and serving everyone but Germans, then each of us must be imposing a greater cost on society by not opening a bar and not serving anyone. At the very least, if there's no general moral compulsion to serve people in bars then if not serving Germans is a cost on society, then you, me and Irish John are all equally guilty. It might sound absurd to think in these terms, particularly as your particular occupation confers benefits on society that Irish John's bar does not, but this kind of analysis would be quite natural at a lunch table full of economists. To understand how economics inform us in these everyday matters, one must understand the externalities linked to all actions and events.  For example, on a street full of expensive terraced houses, the actions of one house owner can have subtle effect on the rest of the street.  If Frank in number 34 is the first to have a burglar alarm installed he immediately increases the chances that someone else’s house will be burgled (that’s a negative externality).  If he is the first to have a smoke detector and fireproof walls installed then he decreases the chances that house fires will spread to other houses (that’s a positive externality).

So going back to the bar and Irish John’s discrimination; John's cost to society in the bar world is that he serves every pub customer except German people.  Our cost to society in the bar world is that we don't serve anyone at all.  As well as that, John is actually doing extra good to pub drinkers by supplying pub drinks and thereby bidding down prices at competing pubs (including all the pubs in which German people can get served). 

We want to live in a world in which if you run a business you operate from within the purlieus of anti-discrimination laws.  But we also have seen that there is no justifiable denial of the right to discriminate if you’re a customer.  Some might claim that there ought to be no grounds on which business owners can discriminate against customers because businesses have greater commercial power than customers, and are, as potential employers, operating a stricter standard than those not in businesses.  But that doesn’t really tell us much – it still leaves the question of whether the distinction between employer and employer is significant enough to warrant this difference in discrimination capabilities. 

And even if we say the difference is significant enough, that still needs justifying, along the lines of explaining how one justifiably identifies what qualifies as significant.  Perhaps we feel deep down that the more power, influence or capabilities a person has the more responsibility falls on their shoulders.  But while that might be justified in some cases, that does not seem to help here either.  Tall, good looking men have more power and influence in the dating world, but we wouldn’t wish to impose on them a law that says they must only date German or Irish women.  Equally, employers get to discriminate all the time without any recourse to punitive measures.  For example, the poor could be classed as being discriminated against when clothes shops sell expensive shirts that are way beyond the price range of low earners.  So there is not much mileage here.  I have a feeling that although Governments would like to punish anyone discriminating on grounds of race, gender, ethnicity or sexual orientation, they face different situations between those in the employment or selling market and those that are not.  If Peter chooses to drink in another bar because he doesn’t like the Irish then no one need be any the wiser, and he could easily think up another excuse for not drinking.  But a bar owner who refuses to serve Germans would have a more difficult time explaining that policy to the authorities.  

Due to this asymmetry I still don’t think we have satisfactorily resolved the inconsistency of our dealings with discrimination, except to say that we do view the discriminations as equally bad, it's just that the law only enables certain restricted courses of action.  Because of this, I will offer a thought experiment.  Suppose if it were possible - and this possibility remained only in the sphere of our unfair discrimination - a supercomputer could read all our unfair discriminations thanks to a tiny microchip inside our cranium, and remove £25 from our bank account every time we were consciously racist, xenophobic, homophobic, etc, and acted upon those thoughts - would you support it? I'm undecided on this microchip option myself - it would be a more extreme version of what we already have - incentives not to commit crimes, except in this case the measure is extreme enough to match the difficulty in conviction.  It sounds restrictive, but don't forget, once upon a time in certain parts of the world a law against racism would have struck some people as restrictive, and absurd and repressive too.

As a friend of mine gave an honest admission that I think we all share - "At times I am consciously all three - racist, xenophobic and homophobic – but I don't choose to feel that way, and after thinking about it, I realise how irrational my thoughts have been.”

Yes this is a problem, and my friend raises a good point, because despite our efforts not to be racist, xenophobic and homophobic, psychologists have shown that evolution has dealt us a hand that contains some racist, xenophobic and homophobic propensities - so the microchip might be too much.  That said, if £25 keeps disappearing from our savings every time we are racist, xenophobic and homophobic, we'd soon master the art of controlling it and perhaps exchanging it for tolerance and kindness. While this sounds like a violation of civil liberties, it is important to remember that the microchip is not interfering with your free choice, at least no more than a law is - it is merely punishing a bad action after the decision has been made (just like a law does). The only difference is that this microchip is getting to the parts that other laws can't reach. Remember too the monitoring system only removes £25 when it has measured a conscious, deliberate discriminatory thought and clocked that you acted on those thoughts. So if you think about the German anti-Irish pub customer - if he suppresses his discrimination and instead chooses tolerance and kindness he's ok, but if we walks out due to his discrimination he is £25 poorer.  Clearly here, the fines would have to be relative to wealth and earnings – a £25 fine for a man worth £25 million wouldn’t be much of an incentive.

Clearly this would throw up all sorts of corollary questions; what about people with split personalities, or people on medication, or people with emotional damage due to war?  But for this thought experiment we must assume that the supercomputer can pick up all these nuanced distinctions and distribute maximal leniency when required.  Remember a thought experiment like this is designed hypothetically to ask a fairly specific question - would we benefit from stronger incentives not to be racist, xenophobic, homophobic? It is this on which we should base our judgement.

I suppose the best solution when such a technology is readily available and easy to implement would be to act according to our democratic framework and ask the citizens of the country to vote on whether or not they support microchips that respond to discrimination by way of a fine. If they support it then we can at least be assured that they value the gradual diminution of unfair discrimination over the lessening of our abilities to be privately discriminatory.  My guess is that most will be overwhelmingly against it.

* Photos courtesy of www.humanrightseurope.org