This chapter resurrects, conceptualizes and defends an old account of why disparate impact discrimination sometimes wrongs its victims. In Local 189, United Papermakers v. United States, a Fifth Circuit case from 1969, the court prohibited the use of a seniority system that effectively kept African-Americans from better paying jobs within the company on the grounds that “[w]hen an employer adopts a system that necessarily carries forward the incidents of discrimination into the present, his practice constitutes on-going discrimination, unless the incidents are limited to those that safety and efficiency require.” Drawing on that insight, I argue that sometimes laws, policies and practices that produce a disparate impact on a protected group compound prior injustice and are, for that reason, wrong.
I begin by arguing for a general duty to avoid compounding injustice. Next, I turn to disparate impact discrimination and suggest that some paradigm cases involve the wrong of compounding injustice. Finally, I explore whether this account provides a reason to describe the wrong at issue as a form of discrimination.
Deborah Hellman, Indirect Discrimination and the Duty to Avoid Compounding Injustice, in Foundations of Indirect Discrimination Law, Hart, 105–121 (2018).