How to be a conceptual engineer about wrongful discrimination

Who can be a target group of wrongful discrimination? How we think about this issue matters for determining whether or not disparate impact on a group counts as wrongful discrimination, for the list of protected groups in discrimination law and for selecting the relevant causal variables in research design. What should we, for example, think about ‘intersectional’ categories, and how should we respond to claims of discrimination from hitherto unprotected groups, such as those of a certain height or class. In this paper we argue against the prevalent way of deferring to normative theory and its use of intuitions and conceptual analysis for settling these questions. Instead we employ some different methodological principles for deciding whether or not a certain group or population should be included among the groups that can be wrongfully discriminated against. We first examine this as a matter of conceptual engineering where we are encouraged to go beyond our traditional, and potentially limited, understanding of the targets of wrongful discrimination. Instead being a conceptual engineer encourages us to consider the purpose of such inquiry. We argue that the narrow purpose (such as a narrow political agenda) is not appropriate in the case of wrongful discrimination because of the coordinating role of the concept of wrongful discrimination (used in law, social science and political theory) and also for the concept to have political legitimacy. Thus there must be some objective knowledge that constrains our understanding of the target groups of discrimination. We believe that this is provided by thinking of the candidate groups as social kinds (groups over which we can make several empirical generalisations) which also generates some objective principles for deciding which groups should be included among the groups that can be a target of discrimination. One principle has to do with the amount of hitherto (individual) shared experiences of social injustice individuals face qua their membership in a group. Another principle has to do with the likely future trajectory of shared experiences that a group might face as a result of particular discriminatory policies.