Faces of Inequality – Notes on Chapters 4–6: Denial of Basic Goods, Pluralist Theory, and Indirect Discrimination

Chapter Four – Access to Basic Goods

4.1 A Third Form of Wrongful Discrimination

• Beyond subordination (Ch. 2) and infringements of deliberative freedom (Ch. 3) lies a third wrong: withholding access to basic goods.
• Paradigm case: Indigenous communities on Canadian reserves lacking safe water.
– Over 70 reserves under water advisories; almost half >10 yrs old; >50\% pose “moderate–high” UN-rated health risks.
• Why it is a discrimination problem, not only a human-rights deficit:
– Off-reserve & non-Indigenous remote areas rarely face chronic advisories.
– Funding structure: predictable provincial/municipal cooperation off-reserve vs. sporadic federal funding on-reserve.
• Normative causation: a duty can turn governmental “inaction” into a causal act (tort analogies: Stovin v Wise; Just v BC).

4.1.1 Initial Objection – “Pure inaction”

• Reply 1 – Federal funding policies are a material cause.
• Reply 2 – Causation is normative: duties + omissions can constitute causes.

4.1.2 Why not fully explained by other wrongs

• Contribution to subordination: reinforces stereotypes of Indigenous peoples as unclean/incompetent.
• Infringes deliberative freedom: searching for water drains time & agency.
• Yet our intuitive focus = “they lack something so basic.”

4.1.3 Supreme Court of Canada Clue

• Discrimination sometimes hinges on restricting “access to a fundamental social institution or basic aspect of full membership” (Egan; Law v Canada).

4.1.4 Access vs. Possession

• Right is to a genuine opportunity, usable with current resources/abilities – not merely formal access.

4.1.5 Conditions for a Good to Count as “Basic”

(i) Necessary for full & equal participation in society.
(ii) Necessary in order to be seen (by self & others) as a full & equal participant.
• Conditions related but independent; stereotypes can make (ii) fail even when (i) met.
• Examples: non-Indigenous remote towns lacking water satisfy (i) but often not (ii).

4.2 Basic Goods – Further Clarification

4.2.a Not about objective value

• A basic good need not be objectively good (e.g.
marriage may be patriarchal yet basic).

4.2.b Private vs. Public Goods

• Privately appropriable & survival-based: water, food, clothing, shelter.
• Privately appropriable, non-survival: a legal name, a home (Essert: home as locus of freedom).
• Public/institutional: marriage, sign-language in hospitals, pension plans, public transport, breastfeeding in malls, Indigenous child-protection services.

4.2.c Relational Nature

• “Basic” always for someone in some society; may change historically.

4.2.d Perspective of the Discriminatee

• Water for Indigenous peoples = spiritual medium; women as “Keepers of the Water.”
• Meaning of the good often visible only from claimant’s cultural/historical stance.

4.2.e Group-Specific Basic Goods

• Indigenous Child & Family Services funding: a basic good uniquely needed by on-reserve families (FNCFCS v Canada).

4.2.f What Counts as “Denial”?

• Narrow view: failure of an existing duty.
• Broader view (Moreau favours): any actor with power to supply the good but who withholds it.

4.3 Distinctness from Other Equality Wrongs

• Different focus: subordination = status of groups; basic-goods denial = status/opportunity of individual claimants.
• Different comparativity: social-subordination judgments directly comparative; basic-goods judgments only indirectly so.
• Illustrations
– Same-sex marriage (basic good) vs. heterosexuals seeking civil-partnerships.
– Wackenheim dwarf-tossing: conflict between eliminating subordination and denying employment.

4.4 Prohibited Grounds & Responsibility

• Statutory grounds are heuristics: highlight who is likely to lack basic goods and to be seen as unequal.
• Responsibility questions separate from wrongfulness: culpability & cost-bearing may vary.

Chapter Five – A Pluralist Answer to the Question of Inequality

5.1 Pluralism & Unity

• Three irreducible conceptions of failing to treat as equal:

1. Social subordination.
2. Infringement of deliberative freedom.
3. Denial of basic goods.
   • Unified by two common features:
   – Differential treatment on trait-basis.
   – Resulting failure to treat as equal.

5.2 Arbitrariness Worries

• Addressed by explanatory power: mirrors complainants’ lived experiences & fits legal doctrines.
• Concept vs. conception: equality = concept; the three wrongs = conceptions explaining when equality is denied.

5.3 Is Discrimination Distinctively Heinous?

• Wrongful discrimination not uniformly more serious than other wrongs; seriousness depends on motives, knowledge, roles.

5.4 Each Wrong Is Sufficient

• Cases with only subordination: “Sketching the Line” posters rendering visible minorities invisible.
• Only deliberative-freedom infringement: Spruce Hill Resort fired Caucasian staff → race cost/burden though no subordination.
• Only basic-good denial: Wackenheim’s lost employment if tossing banned (assuming minimal subordination).

5.5 Personal vs. Group Wrongs

• Personal wrongs ⇒ specific restitution to claimant (accommodation, job, damages).
– Deliberative freedom infringements.
– Denials of basic goods.
• Group wrongs ⇒ structural remedy (policy change, quotas, education).
– Causal contribution to social subordination.

5.6 Conflicts & Weighting Reasons

• Moral tragedies: any option wrongs someone.
– Affirmative-action quotas: temp. stereotype vs. long-term equality.
• Number of persons, depth of subordination, and overlap of affected classes all relevant; no single algorithm.

5.7 Advantages of Pluralism

1. Nuanced case analysis: captures multi-faceted harms.
2. Resolves “comparative puzzle”
   – Different wrongs ⇒ different necessary comparisons (actual vs. hypothetical).
3. Explains coexistence of personal & group remedies.

Chapter Six – Indirect Discrimination (Opening)

• Key open issues:

1. Justification: any principled difference between direct & indirect discrimination when weighing all-things-considered? (Preview: Moreau → No.)
2. Responsibility for cost vs. culpability:
   – Indirect cases involve diffuse, multi-agent causation ⇒ fairness of imposing rectification costs questioned.
3. Need to separate:
   (a) All-things-considered wrongness.
   (b) Agent’s culpability/blameworthiness.
   (c) Extent of duty to rectify & who pays.