Speaker: Prof. Craig Konnoth

Craig Konnoth is Martha Lubin Karsh and Bruce A. Karsh Bicentennial Professor of Law at the University of Virginia School of Law.  He writes in health and civil rights, as well as on health data regulation. He is also active in LGBT rights litigation, and has filed briefs in the U.S. Supreme Court and the Tenth Circuit on LGBT rights issues. His publications have appeared or will appear in the Yale Law Journal, the Stanford Law Review, the Hastings Law Journal, the University of Pennsylvania Law Review, the Iowa Law Review, the online companions to the Penn law review and the Washington & Lee Law Review, and as chapters in edited volumes. In 2022, he was named UVA’s John T. Casteen III Faculty Fellow in Ethics, a program that supports integrating ethical analysis and reasoning into courses. In 2021, he was awarded a Greenwall Foundation Fellowship, which is the nation’s foremost fellowship in bioethics for early career scholars.

Abstract

American antidiscrimination law and theory divide discrimination’s causes into two categories. On the one hand, there is address animus and bias. Individuals unreasonably hold harmful opinions about certain groups because of a negative attitude towards those groups. I refer to this as attitudinal discrimination. On the other hand, discrimination may be structural, where discrimination based on one factor—say money—is structurally related to a specific  characteristic like race. This is commonly referred to as structural discrimination.

But some examples of discrimination fall into neither category. Consider the following examples:

• During the perilous yellow fever outbreak of 1793 in Philadelphia, black pastors Absalom Jones and Richard Allen volunteered black people to assist with public health efforts based on the “assurance that people of [their] colour were not liable to take on the infection,” an assurance they later found to be false.^[1]
• More recently, Dorothy Roberts recounts how she faced representatives from the NAACP who, along with black advocates, doctors, and Congresspeople, supported drugs supposedly tailored to the supposedly unique biology of black people.^[2] Roberts convincingly argues that this understanding harms black people in the long run.
• Black Americans similarly have endorsed claims that they were immune to COVID-19 and discouraged vaccination in the black community.^[3]

These cases described above fall into neither traditional category of discrimination. They do not necessarily involve unreasonable discrimination because of negative attitudes: in the first two examples, actors relied on what they (reasonably) believed to be robust medical authority, and in all three cases, attitudes are hardly negative. Nor is there any structural relationship to some additional characteristic like money.

I refer to this form of discrimination as epistemic discrimination. On this account, the discriminator in question does not have unreasonable attitudes towards the group. Rather, they believe the claims of sources of information that they reasonably consider reliable—for example, foremost medical authorities. This very early stage project will situate epistemic discrimination against “classical” forms of discrimination, address the comparative moral and legal liability of discriminators, and examine epistemic remedies for epistemic discrimination.