Individual and Collective Harm in Sex Discrimination

Abstract

The concept of discrimination appeared historically as a response to the ineffectiveness of the principle of formal equality to address certain systematic inequalities between human groups that are firmly rooted in our societies, such us the subordination of women. In this sense, it is connected with the idea of substantial equality that characterizes modern democracies. However, in its specific formulation, the anti-discrimination regulation tends to use the individualistic categories of our legal ideology, that are sometimes interpreted in a formalistic way by legal operators, turning victimized groups into abstract reasons for difference in treatment.

Some feminist scholars have argued that the individualist notion of discrimination, linked to the Aristotelian notion of equality, is ineffective and in many cases even counterproductive to address the situation of oppression suffered by women. In order to reconstruct a group-based notion of sex discrimination it is necessary to provide a theory on the damage caused by discriminatory conduct, articulating individual and social harm. In this way many issues can be addressed, such as the justification of affirmative action measures, the possibility of reverse discrimination, the application of the concept of discrimination by association, the difference between discrimination and stigmatization or the question of whether men can bring claims of indirect discrimination to challenge the application of a criterion that harms them individually and women globally.