Discrimination as a Public Wrong

Abstract

The enforcement mechanisms of anti-discrimination law manifest a puzzle: while the dominant view is that discrimination is a wrongdoing against individuals, which suggests that discriminatees should have the power to vindicate their rights, legal provisions sometimes authorise public officials to file claims against alleged discriminators, regardless of discriminatees’ preferences. Seeking to make sense of this puzzle, this article draws on theories of state enforcement under criminal law to explore the justification of public enforcement under anti-discrimination law and reflect on the nature of discrimination more broadly. It claims that an instrumental justification of public enforcement of anti-discrimination law is left wanting. Instead, it argues that public enforcement in this domain is warranted because discrimination is not only a private wrong against individuals, but is also a public wrong, namely a wrong against the community as a whole.