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Discrimination, different treatment of others based solely on their membership in a socially distinct group or category, such as race, ethnicity, ***, religion, age, or disability. Discrimination can be viewed as favorable or unfavorable, depending on whether a person receives favors or opportunities, or is denied them. For example, a senior citizens’ discount shows favorable discrimination toward senior citizens. However, in modern usage, discrimination is usually considered unfavorable. This article discusses unfavorable discrimination.
In early common law, discrimination referred to improper distinctions in economic transactions. For example, discrimination occurred if a person who was engaged in a common calling, such as an innkeeper, refused to serve an orderly patron, or if a common carrier refused to transport the goods of one person in preference to those of another.
By and large, economic discrimination by private parties remains lawful in a free-enterprise system unless prohibited by common-law rules or statutes. The earliest statute was the British Railway Clauses Consolidation Act of 1845, which prohibited a common carrier from charging one person more for carrying freight than was charged to others for the same service.
This legislation served as a model for federal and state statutes in the United States, including the 1887 Interstate Commerce Act. Other important federal statutes are the Robinson-Patman Act (1936), which bars sellers of commodities in interstate commerce from discriminating in price between purchasers of goods of like grade and quality, and laws prohibiting discrimination in the rates set for land, sea, and air transportation.
RACIAL AND ETHNIC DISCRIMINATION
One of the most pervasive forms of discrimination in the United States, and elsewhere, is that directed toward racial and ethnic groups. The Constitution of the United States recognized the legality of slavery, and the vast majority of slaves were black Africans and their descendants. The Emancipation Proclamation of 1863 and the constitutional amendments that followed the American Civil War (1861-1865) changed the legal status of African Americans, but a series of decisions by the Supreme Court of the United States struck down federal statutes designed to enforce the amendments. The most important of these decisions declared unconstitutional a law that outlawed racial discrimination by private individuals. The Court also upheld state-enforced segregation. For decades after Reconstruction, the absence of adequate federal laws permitted discrimination against African Americans in employment and housing, public accommodations, the judicial system, and voting. This discrimination was further legitimized by the Supreme Court’s notorious ruling in Plessy v. Ferguson (1896), which upheld legally enforced segregation in public transportation and established the so-called “separate but equal” doctrine.
Discriminatory practices remained largely unchallenged until 1941, when President Franklin Delano Roosevelt issued an executive order forbidding discrimination in employment by a company working under a government defense contract. States began to legislate against discrimination in 1945. By 1964, when the federal Civil Rights Act largely superseded state legislation, 25 states had legal prohibitions against discrimination in employment and 31 states had laws against discrimination in public accommodations. Some states banned discrimination in the sale and rental of private housing, and some prohibited discrimination in college admissions. However, methods of enforcing such laws varied from state to state and were largely ineffectual.
On the national level, a major blow against discrimination was the unanimous Supreme Court decision in May 1954 in Brown v. Board of Education, in which the intentional segregation of African American children in public schools was held to violate the 14th Amendment to the Constitution. Over bitter opposition, Congress passed the Civil Rights Act of 1957, but only the right to vote was expressly addressed; other provisions of the act established a new civil rights division in the Department of Justice and a fact-finding Civil Rights Commission. The Civil Rights Act of 1964 outlawed racial discrimination in most hotels, restaurants, and other public facilities; prohibited unions and certain categories of employers from practicing discrimination; and banned registrars from applying different standards to white and black voting applicants, a provision that was strengthened by the Voting Rights Act of 1965 and its later amendments. The 1964 law also authorized the U.S. attorney general to file suit when a “pattern or practice” of widespread discrimination was found; federal financial aid could then be withdrawn from programs in which racial discrimination persisted.
In 1968 Congress passed the Fair Housing Act, barring racial discrimination in the sale, rental, or financing of housing in which federal moneys are involved by way of loans, mortgages, or grants. Racial discrimination in employment by a state government agency was banned in 1972, and U.S. attorneys were authorized to sue noncomplying state agencies; similarly, the Equal Employment Opportunity Commission, established in 1964, was authorized to file suit.
Racial discrimination practiced against Hispanic Americans is also widespread, and has generally assumed traditional forms, including discriminatory policies in employment, housing, and access to the judicial system, but it has also involved such issues as bilingual education, fair treatment by the communications media, and prison reform. The Puerto Rican Legal Defense Fund and the Mexican American Legal Defense Fund have worked to defend the rights of Hispanic people.
Asian Americans have also suffered discrimination, notably in immigration quotas and in employment and housing. The most egregious example was the forced evacuation of Japanese Americans from the West Coast during World War II—an event upheld by the Supreme Court in 1944 but repudiated by Congress many years later.
DISCRIMINATION AGAINST WOMEN
American women have historically been victimized by discrimination in voting (which was not secured for women until a 1920 constitutional amendment), employment, and other civil rights (for many years, for example, women were denied the right to serve on juries). In the late 1960s women organized to demand legal equality with men. They founded the National Organization for Women and other groups to press for equality in education, employment, and government. As a result of the 1964 Civil Rights Act, women made some gains against employment discrimination. During the 1970s, the effort was pressed not only against discriminatory practices but also against outmoded attitudes toward the role of women in society. In 1972 Congress passed the Equal Rights Amendment (ERA) to the Constitution and submitted it to the states for ratification. The ERA was designed to eliminate the last vestiges of legal discrimination against women. With only 35 of the required 38 states ratifying the amendment, however, the necessary approval was not secured by the 1982 deadline. Although this was a defeat for the feminist movement, working toward the ERA built a skilled leadership of female politicians and lobbyists. The goals of the ERA are being achieved through piecemeal legislation and through several lawsuits brought to the Supreme Court under the Equal Protection Clause of the 14th Amendment to the U.S. Constitution.
DISCRIMINATION AGAINST OTHER GROUPS
Throughout United States history many other groups have suffered racial or religious discrimination. Since Europeans first came to America, Native Americans have been forcibly deprived of their lands and denied civil rights. Congress enacted the Indian Civil Rights Act in 1968, and the federal courts have entertained a number of suits designed to restore to Native American tribes ancestral lands and hunting and fishing rights. Many religious groups, including Roman Catholics, Jews, and others, have been discriminated against as well.
Discrimination has also taken other forms. For many years urban voters were denied equal representation in Congress and state legislatures; the elderly have been faced with discrimination in employment and housing, despite federal and state laws designed to prevent such practices; former prisoners and mental patients have suffered legal disabilities after their terms of confinement ended; and some aliens have been denied equal employment opportunities. People with physical disabilities have endured discrimination in employment and access to public facilities and transportation; the Americans with Disabilities Act of 1990 addressed these problems on the national level.
A widespread form of discrimination exists against homo***uals, who historically have endured prejudice because of social and ***ual taboos. Few state or local laws exist to protect the rights of lesbians and gay men against discrimination. In 1986 the U.S. Supreme Court ruled that the Constitution does not protect private homo***ual relations among consenting adults. This decision led to aggressive action by the gay community to counteract prejudice and to lobby for legal protections. In response, conservative groups in some states sought to ban local antidiscrimination laws that protected gay people. In 1996 the U.S. Supreme Court ruled that states cannot make it more difficult for homo***uals than others to seek antidiscrimination laws from local and state legislatures. The Court overturned its 1986 ruling in a landmark decision in 2003. In Lawrence v. Texas the Court nullified laws in 13 states that criminalized homo***ual behavior, finding that such laws were demeaning and violated the right to privacy.
The 14th Amendment to the U.S. Constitution bars states from denying any person within their borders the “equal protection of the laws.” Although this provision does not apply to the federal government, the Supreme Court ruled in Bolling v. Sharpe (1954) that the Fifth Amendment’s due process clause binds the federal government to the same rule.
Since the mid-20th century the Court has developed an extensive body of law dealing with issues of discrimination and equality. Though the cases are numerous and the rules complex, in essence the Court has enunciated three tiers of protection, depending on who is being discriminated against and for what reason. These three standards are (1) strict scrutiny, (2) intermediate scrutiny, and (3) rational basis.
If a law or governmental practice classifies a person on the basis of race, ethnicity, national origin, or religion, the courts must apply “strict scrutiny” to determine whether the law or governmental practice serves a “compelling government interest” and is necessary to fulfill that interest. Almost all laws that classify individuals on such bases have been struck down. Likewise, if a law intrudes on a fundamental right of one person or group more than on that of another group, it is subject to the same strict scrutiny. For example, in a 1942 case, the Court struck down a law that required compulsory sterilization for one class of felons and not for another, holding that the law discriminated against one group by interfering with the fundamental right of procreation. The Court has also ruled that affirmative action programs are subject to strict scrutiny and that they must be narrowly tailored to serve a compelling government interest.
The Court has applied a somewhat less strict standard of review, called intermediate scrutiny, to certain forms of discrimination—notably, classifications on the grounds of *** and illegitimacy (being born out of wedlock). To prevail the government must show that the classification will serve an important interest and that it is substantially related to achieving that interest.
The least onerous standard, that of rational basis, applies to all other forms of discrimination, including, for example, economic and tax discriminations. To justify such discriminations, the government need show only that the classification is rationally related to achieving a legitimate government purpose. Other classifications subject to rational basis scrutiny include those based on age, mental or physical disability, and ***ual orientation.
DISCRIMINATION OUTSIDE THE UNITED STATES
Most nations practice discrimination against foreigners and disfavored minorities within their borders. It may be religious, such as policies that disfavor Roman Catholics, Jews, Muslims, Hindus, and others; racial, as in the apartheid policy that was enforced in South Africa from 1948 to 1992; or *** discrimination, as in many countries where women have few rights. The laws of each country should be the means of combating discrimination, but often these laws encourage discriminatory practices.
International efforts to combat discrimination were minimal until the passage of the United Nations (UN) Charter in 1945 (see United Nations). One of the charter's purposes is to encourage “respect for human rights and fundamental freedoms for all without distinction as to race, ***, ********, or religion.” A broad statement of human rights is contained in the Universal Declaration of Human Rights, passed by the UN General Assembly in 1948, but it does not have a binding effect on member states. Later the General Assembly passed the Covenant on Civil and Political Rights (which went into effect in 1976), as well as specific covenants on the Prevention and Punishment of Genocide and on the Elimination of All Forms of Racial Discrimination. Although a majority of nations have signed these covenants, the United States has not yet done so. In 1986 the U.S. Senate finally endorsed the UN ban on genocide and more recently the Senate ratified, with several reservations, the Covenant on Civil and Political Rights.
The major obstacle to international protection of human rights is that most nations will not accept any interference with their internal affairs, including questions of discrimination against their own citizens. To a modest degree these difficulties have been overcome through regional bodies such as the European Convention on Human Rights and the Inter-American Commission on Human Rights. The administration of U.S. president Jimmy Carter in the late 1970s introduced human rights as a principal element of foreign policy. This initiative was often ineffectual, but did lead to some practical gains as well as increased international awareness of the importance of securing human rights for all. During most of the 1980s, the conservative administration of President Ronald W. Reagan showed less inclination to include the human rights issue in foreign policy pursuits.
In 1982 the Constitution of Canada was amended to incorporate the Canadian Charter of Rights and Freedoms. The charter expressly states that all Canadians are entitled to equal protection under the law and may not be discriminated against because of race, national or ethnic origin, color, religion, ***, age, or mental or physical disability. The Supreme Court of Canada has extended the charter’s stated equality rights to prohibit discrimination against pregnant women in unemployment benefits, firing of employees based on ***ual orientation, and employment discrimination based on perceived rather than actual disability.
See also African American History; Civil Rights and Civil Liberties; Women's Rights.
Jethro K. Lieberman
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