New callers to my law firm are often concerned that they have been “discriminated” against. But the word “discrimination” has itself become pregnant with meaning, and is often thought to automatically yield to the result that it is illegal. This may sound like heresy, but discrimination, in fact, is usually perfectly legal. What do I mean?
Discrimination really means that we are differentiating between several things. In the context of new callers, discrimination is occurring among various people, usually employees. But when we “discriminate”, we are choosing between various applicants or various employees for employment decisions. We might well discriminate in favor of a hard worker, someone with a necessary certificate or degree, or someone with a can-do attitude. Conversely, many employers will “discriminate” against employees who are late, lazy or demonstrate a bad attitude.
So when is discrimination wrong, and why? Over the years, societies make decisions about what discrimination is morally and therefore legally wrong. These standards change and hopefully evolve over time. When our nation was formed, the Constitution contained a horrible notion that we could discriminate against African-Americans. As a country, we came to see that that was wrong and we made it illegal. It took us another 70 years to recognize that discriminating against women and denying them their right to vote was also morally reprehensible and should also be illegal. We still struggle with discrimination against minorities and women in the workplace and elsewhere, even though both have been illegal for over 100 years.
More recently, we have recognized other forms of discrimination which we have now made illegal – e.g., handicap status, sexual orientation, military service. All of these illegal forms of discrimination have as their basis both a personal or moral dimension, as well as a societal one. The personal or moral dimension is that we believe it is wrong for individuals to be denied their right to fully participate in society, thereby denying them of their opportunity to fully succeed and contribute. A societal benefit in banning discrimination is that, as a country, we will benefit by having each person contribute the most they are able, and having the most capable person able to rise to whatever position they wish to attain, whether in leadership, academics, the workplace or otherwise. If a less capable person were to occupy the same position, we would all lose.
I am still going to get calls from people concerned that they were “discriminated” against because they were late too often, but would urge all of us to be a little bit more discriminating in our use of the word.
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