The unequal treatment for non-equal people – Some reflections


Leandro Castelluccio


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“We are all equal before the law”, is a concept rooted within the legal and constitutional framework of most modern republican nations. The law establishes this equality, making explicit in many cases the distinction of recognized differences based on talents or virtues. The common interpretation is that we should all be treated equally before the law, although in real life we ​​are different (we recognize these differences, but we do not act on them).

Nowadays, however, we often try to differentiate in terms of the law, in the sense of breaking the notion of equality to encourage another type of it, a real equality as it is said. The new concept is unequal treatment for non-equal people. That is, it is recognized that people are different, and that not all have the same talents and virtues, or not the same material resources in other terms as well, and that therefore some should be treated differently based on such differences, with the end, it is argued, to make people more equal. This notion would go hand in hand with the idea of ​​providing assistance from the State to the people who need it most for example. If the treatment of the State were the same for everyone, there would be no such distinctions, or it could be said that such discrimination would not be carried out in favor of certain people, although the scope of that is debatable.

There are arguments for and against what is called affirmative action, or positive discrimination, where by one way or another it is intended to favor groups considered excluded or discriminated in society, in different areas, educational, in labor or in public- state affairs, etc.

Usually, those who oppose this type of positive discrimination refer to the fact that this type of discrimination goes against meritocratic principles or ideals. As stated by Augoustinos and Every (2005), taking into account certain context of the research of these authors, this argument of meritocracy is commonly used and taken for granted at the same time that it is associated with the idea that regardless of the context or the background of someone, people should be treated equally. In connection with this, as Bacchi (2004) states, people tend to accept the premise that there is equal opportunity for different people, taking into account that social rules are generally fair. Under these premises, it is perhaps more understandable why the rejection of the notion of positive discrimination by some people, taking into account some understanding of the issue or certain beliefs. But what would we think if in fact positive discrimination and meritocracy were not at opposite poles or in contradiction? And are we really willing to consider that social rules are fair for all?

Son Hing, Bobocel and Zanna (2002) state that people who consider merit as something important should be motivated to combat discrimination since it biases the evaluation of someone’s merit. These authors found evidence of this by investigating the pre-existing perceptions of the participants in their research and by experimentally inducing perceptions of discrimination. Now, in argumentative or theoretical terms, the intervention is not necessarily deduced from the existence of discrimination, although it is affirmed that people do that based on such perception, since for example the right candidate is not always chosen, or the person most qualified for a job, that does not mean that there is or should be an external evaluation committee or a state control over the selection of personnel, for example. That is, on a day-to-day basis, we accept that circumstances are not always fair, perhaps one was a better candidate, but one was not chosen, and that does not mean that we should force employers to choose the right candidate, which could imposed by an external committee or state control. Now, it could be argued that this is not the same as discrimination, because human error is a fact and it happens, it is part of daily life, even the external committee and state control could be wrong and consider the person less appropriate versus the employer’s alternative, however, what makes us think that positive discrimination could not have negative results in a certain context, and in this way, it would be making an error also on the part of it? This is also part of the fact of whether we are willing to allow people to make mistakes, the employer can choose the least suitable candidate, and meritocracy would not be there, and could also discriminate, and there would also not be meritocracy, but why allow one thing and not the other? Is one thing ethically inferior to the other? It could be considered that there is a marked difference in ethical terms of one thing versus the other, but it is also important to understand that not allowing error or discrimination is actually a fallacy, since error is part of the human, so that the regulator, the law, and ultimately the one that imposes positive discrimination is not exempt from committing an error in carrying it out, regardless of whether it is trying to eliminate the error, it would be something axiomatic.

This is something relevant for the State, when it imposes something on society (such as positive discrimination) it may be making a mistake and causing harm to people, as with any other attitude, or on the contrary it could generate a positive change, in the case that positive discrimination works, for example, but it has a counterpart, and that is that the State does not generate a positive effect based on noble means (it assumes the power to know what is correct and force others to comply its judgment). Think of the place of the employers that discriminate against a minority, one thing is their error, but another is to force them against their will, that leaves a precedent that lowers the level in what would have been if the change were genuine, naturally motivated by flexibility of the person and the attitudes of the employees, where there is a process of mutual respect for the personal agency of each party, that speaks of the assertiveness and the rights of each one, and is connected with the last aspect that I will comment towards the end. Under this line of thought, the State should refrain from implementing attitudes of the type of positive discrimination, since in terms of maximum possible reward the State leads to less.

Now, how we put the employer’s attitude of discrimination into perspective also affects the way we evaluate the whole issue of positive discrimination. It could effectively be said that one thing is to consider someone as a possible candidate, another thing is to dismiss the candidate based on discrimination (they have different moral weight), the candidate could be considered inferior, intellectually less capable, etc., that is a mistake, another aspect is the component of dislike and rejection towards the person, so what happens in that case when someone intelligent from the discriminated group appears? That would challenge the attitude of the one who discriminates, it can change or reinforce it, in the latter case the beliefs would no longer matter in a certain way. Why the latter? For the employer could lead the subject to situations that confirm their inferiority belief, overwhelm them with work, force them to do things they are not prepared to do, etc., the discriminator would overestimate and tolerate more also the ability of someone from their own group, so the presence of someone different will not necessarily change the attitude of the employer, in terms of the discrimination that takes place, but that the person is there could start the way for change, but it would be a challenge for the one who is discriminated.

Therefore, what about the consequences or results of the application of such positive discrimination? A central work on this aspect was carried out by Coate and Loury (1993), who develop a model which predicts that in labor contexts, in certain cases or situations, positive discrimination would necessarily eliminate negative stereotypes about the minority group. However, there would be equally plausible circumstances where this type of positive discrimination would not only fail but also generate the opposite effect, deepening negative stereotypes. The authors conclude in part that in order to effectively combat discrimination and break stereotypes, in certain situations rather than carry out forced positive discrimination, it would be better to encourage disadvantaged workers to offer more effort.

Noon (2010) states that in the case of meritocracy, positive discrimination does not necessarily lead to a detriment of it. Consider that you do not always have a candidate more suitable for the job, but we can have two or three with equal qualifications in terms of suitability, that’s where positive discrimination would enter, where there are no reasons linked to the position that affect the decision, in that case they could be chosen by the criteria of belonging to the less representative group, for example. At the same time, this author considers it false to assume that there is an objective measure of what would be the best candidate for the job. This would relativize the role played by tests and technical evaluations. Now, because the tests are not free of error, I would not relativize the role of meritocracy, or the idea of ​​choosing the best candidate, or that this means that the person chosen is not suitable. I would also add that in cases where there are two equal candidates, it is best to deepen in matters or characteristics of the tasks that that worker will carry on, in attitude, motivations or enthusiasm, etc., it would be preferable to applying a random criterion, which would be theoretically equivalent to positive discrimination, that is, the selection of a subject for a job should be based on the suitability of the person for that position, in various aspects, however it is forced an application of a criterion detached from this aspect, in that sense it is something arbitrary.

But in short, I want to highlight the great problem of positive discrimination, in the field of work, or in any other area that has the same characteristics, and it refers to the intention of the employer or the people involved, and the person discriminated, when the employer is forced to hire someone who does not intend to do so, it generates a manifestation of falsehood, a due and just manifestation, since they are forced to hire the subject, and that may not be their genuine will, that is, that is not in accordance with their intentions, which could happen to be. This is crucial for the discriminated subject, the falsehood goes for both sides, and this affects things that are difficult to measure, and that are usually relegated to the background or directly untreated, such as the fact that positive discrimination would affect underlying processes regarding self-esteem, freedom, personal agency and assertiveness of people. A person hired on the basis that the person was forced to be hired, either directly or through a tie-break as mentioned by Noon (2010), would be vulnerable to feelings of lack of genuineness that affect various aspects of the person’s life. And on the part of the employer, even if he finally changes his attitude of discriminating and affirms that he was wrong, this was forced in the first place, which would generate negative feelings towards others, to the extent that his personal agency, his free will, was not respected, but someone thrown himself the power to decide for the employer and impose his criteria, it goes against the possibility of maximum possible reward and self-esteem in general, in my opinion.

And one final point, the power to generate political corruption by introducing the interests of certain groups is crucial in terms of positive discrimination. When the State must treat everyone equally there is no possibility for politicians to obtain votes and power based on the pretense of favoring certain groups. When the State includes that possibility, it buys votes with its promise to carry out certain things in favor of a group, because equality before the law is no longer such, and the State can offer preferential treatment to some, this opens the possibility for corruption, because it is a door to a way to obtain greater power within the State.


Augoustinos, M., Tuffin, K., & Every, D. (2005). New racism, meritocracy and individualism: Constraining affirmative action in education. Discourse & Society16(3), 315-340.

Bacchi, C. (2004). Policy and discourse: challenging the construction of affirmative action as preferential treatment. Journal of European Public Policy11(1), 128-146.

Coate, S., & Loury, G. C. (1993). Will affirmative-action policies eliminate negative stereotypes?. The American Economic Review, 1220-1240.

Noon, M. (2010). The shackled runner: time to rethink positive discrimination?. Work, Employment and Society24(4), 728-739.

Son Hing, L. S., Bobocel, D. R., & Zanna, M. P. (2002). Meritocracy and opposition to affirmative action: making concessions in the face of discrimination. Journal of personality and social psychology83(3), 493.

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