Discrimination, different treatment of others
based solely on their membership in a socially distinct group or category, such
as race, ethnicity, sex, 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.
Economic 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.
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 homosexuals, who historically
have endured prejudice because of social and sexual 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 homosexual 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 anti discrimination laws that protected gay people. In 1996 the U.S.
Supreme Court ruled that states cannot make it more difficult for homosexuals
than others to seek anti discrimination 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 homosexual behavior, finding that such laws were demeaning and
violated the right to privacy.
