Why Benefitting a Person Cannot Constitute a Form of Discrimination

• Published date: 01 December 2021
• Author: Daniel Statman
• Date: 01 December 2021
• DOI: http://doi.org/10.1111/raju.12332

© 2022 University of Bologna and John Wiley & Sons Ltd.

Ratio Juris. Vol. 34 No. 4 December 2021 (315–330)

Why Benefitting a Person Cannot

Constitute a Form of Discrimination

DANIEL STATMAN*

Abstract. The purpose of this article is to discuss whether a person can be discriminated against

by means of an action intended to benefit him or her. The discussion is triggered by a recent

court decision according to which women may be entitled to compensation for a policy that

made them better off in some respect because of its assumed effect on the perpetuation of harm-

ful stereotypes about women. I reject this view, arguing that such effects are neither necessary

nor sufficient for an act to be discriminatory. If people stand to directly benefit from some act,

they cannot claim discrimination on the basis of such benefit.

1. Introduction

Can a person be discriminated against by means of an action intended to benefit her? To

the best of my knowledge, this question has been neglected in the growing literature on

discrimination.1 Obviously, discrimination can contingently result in a benefit to the per-

son being discriminated against (the “discriminatee”), for example, when it serves to

strengthen the discriminatee’s character and help her to achieve a more fulfilling life

than she might otherwise have enjoyed.2 In such cases, the moral wrongness of the dis-

crimination persists in spite of such contingent benefits. But what about cases in which

the positive consequences for the person ostensibly being discriminated against are not

contingent but intentional, namely, when the purpose of the assumed discriminatory

action is to be of benefit to somebody? Can such an action still be discriminatory?

This discussion was triggered by a recent court decision in Israel in which, for the

first time insofar as I am aware, the above question was made the subject of a court

ruling.3 Let me start with a brief description of the case.

1 The past decade or so has witnessed a resurgence of philosophical interest in the topic. See

Hellman 2008; Lippert- Rasmussen 2014; Moreau 2020; and Segev 2014.

2 Such cases would fall within the ambit of what has been called “fortunate misfortune.” See

Smilansly 1994.

3 Class Action 8214- 05- 14 (Central District) Ronen Meirav v. IDI Insurance Company Ltd.

(published in Nevo, 30 August 2016) (approval of class action); Class Action 8214- 05- 14 (Central

District) Ronen Meirav v. IDI Insurance Company Ltd. (published in Nevo, 23 August 2018)

(judgment), hereinafter the “IDI case” (all quotations from the IDI case are my translations).

* An early version of this paper was published in Hebrew in Statman 2019. Thanks to Ronen

Avraham, Netta Barak- Corren, Iddo Landau, Ariel Meirav, and Saul Smilansky for their helpful

comments.

Daniel Statman

316

Ratio Juris, Vol. 34, No. 4© 2022 University of Bologna and John Wiley & Sons Ltd.

As part of a vehicle insurance policy, IDI Insurance Company Limited (hereinafter

“IDI”) incorporated a provision into the coverage allowing the policyholder to re-

quest roadside service to change a tyre in the event of a puncture, but making the

service subject to payment of 80 shekels (approximately $24). This provision was

qualified by a further clause stating that in the case of a female driver, there would be

no charge for the service. The question facing the court was whether this clause con-

stituted wrongful discrimination and, if so, whether the applicant, Mr. Meirav, should

be allowed to file a class action lawsuit in this matter on behalf of all those affected by

the alleged discrimination. The statute upon which the claim relied was the

Prohibition of Discrimination Law (2000),4 which in section 3(a) provides as follows:

Whoever’s occupation it is to provide goods or services to the public or to manage a place open

to the public shall not discriminate in the provision of these goods or services, in granting entry

to the place, or in providing the services at that place, on grounds of race, religion, ethnicity,

nationality, country of origin, sex, sexual preference, political affiliation, age, personal status,

parenthood, or the wearing of IDF or emergency- service uniforms or their emblems.

The district court in Lydda ruled that the above clause was discriminatory, not only

toward male drivers but also toward female drivers, and ordered the respondent

to pay 1.1 million shekels (approximately $320,000) into a fund promoting gender

equality and the empowerment of women. The principal question which I shall con-

sider in this article is whether it makes sense to speak of women as victims of dis-

crimination in such circumstances. I will try to defend the following claims:

(i) Benefitting disadvantaged groups (because they are disadvantaged) carries

the risk of conveying a problematic message about them to members of such

groups as well as to the general public. Hence it is sometimes overall wrong—

but not always: There are times when such benefitting is the right course of

action.

(ii) Even when such benefitting is morally wrong, it should not be conceptualised

as discriminatory.

(iii) Legally speaking, members of disadvantaged groups should never be com-

pensated— on the basis of the various statutes regarding discrimination— for

benefits awarded to them.

Before I start my argument, a methodological note is in order concerning the relation

between conceptual claims regarding which actions are discriminatory and norma-

tive claims regarding how the law ought to be interpreted. I’ll be assuming that the

former are part of what we should consider when we come to the latter. That is to

say, if the best theory for some concept entails that a certain understanding of it is

preferable to others, that provides us with a good reason to interpret the concept as it

appears in the law in that light. A good reason is not a decisive one, and there might

be other reasons that override it, for instance, a tradition of legal precedents that ad-

opted a different reading of the concept. But, generally speaking, compatibility with

the best theory of some concept— autonomy, dignity, equality, or discrimination— is

4 Full title: Prohibition of Discrimination in Products, Services, and Entry into Places of

Entertainment and Public Places Law, 5761- 2000 (in Hebrew, all translations mine).