Distribution vs. Recognition: The Case of Anti-Discrimination Laws

“Distribution vs. Recognition: The Case of Anti-Discrimination Laws” (2000) 9 George Mason Law Review 145-178 (reprinted in C. McCrudden, ed., Anti-Discrimination Law: International Library of essays in Law and Legal Theory, 2nd Series (London: Ashgate Publishing, 2004)).

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This article considers two debates that are currently raging among scholars of political and legal theory. The first debate, among political theorists, focuses on the correct way for the politically progressive to imagine the problems of justice—as centered on problems of material distribution (the distributive paradigm), cultural recognition, or some complex combination of the two. The second debate, among scholars of antidiscrimination law, turns on the relationship between the prohibited grounds of discrimination in those laws and the social groups found in most nation-states characterized by an increasing degree of social heterogeneity along a number of dimensions—race, religion, ethnicity, gender, and so on. In this article, I take up both of these debates in a specific institutional setting: the interpretation and application of anti-discrimination laws in the context of employment. My claim is that anti-discrimination laws are best understood as measures that effectuate the distributive paradigm's commitment to justice for individuals. But at the same time, those laws enumerate prohibited grounds of discrimination (e.g. race, sex, religion and national origin) that define social groups, the unit of analysis for the politics of recognition. My concern is that difficulties with anti-discrimination laws identified by critics from the left inhere in legal regimes that are justified by one way of imagining the problems of justice (the distributive paradigm), but which rely on social entities that carry normative force in another (the paradigm of recognition).