Eddie Murphy and the Dangers of Counterfactual Causal Thinking About Detecting Racial Discrimination

The model of discrimination animating some of the most common approaches to detecting discrimination in both law and social science—the counterfactual causal model—is wrong. In that model, racial discrimination is detected by measuring the “treatment effect of race,” where the treatment is conceptualized as manipulating the raced status of otherwise identical units (e.g., a person, a neighborhood, a school). Most objections to talking about race as a cause in the counterfactual model have been raised in terms of manipulability. If we cannot manipulate a person’s race at the moment of a police stop, traffic encounter, or prosecutorial charging decision, then it is impossible to detect if the person’s race was the sole cause of an unfavorable outcome. But this debate has proceeded on the wrong terms. The counterfactual causal model of discrimination is not wrong because we can’t work around the practical limits of manipulation, as evidenced by both Eddie Murphy’s comic genius in the Saturday Night Live skit “White Like Me” and the entire genre of audit and correspondence studies. It is wrong because to fit the rigor of the counterfactual model of a clearly defined treatment on otherwise identical units, we must reduce race to only the signs of the category, meaning we must think race is skin color, or phenotype, or other ways we identify group status. And that is a concept mistake if one subscribes to a constructivist, as opposed to a biological or genetic, conception of race. The counterfactual causal model of discrimination is based on a flawed theory of what the category of race references, how it produces effects in the world, and what is meant when we say it is wrong to make decisions of import because of race. I argue that discrimination is a thick ethical concept that at once describes and evaluates the actions to which it is applied, and therefore, we cannot detect actions as discriminatory by identifying a relation of counterfactual causality; we can do so only by reasoning about the action’s distinctive wrongfulness by referencing what constitutes the very categories that are the objects of concern. An adequate theory of discrimination must rest upon (1) an account of the system of social meanings or practices that constitute the categories at issue and (2) a moral theory of what is fair and just in various state and private arenas given what the categories are

What Taylor Swift and Beyoncé Teach Us About Sex and Causes

In the consolidated cases Altitude Express v. Zarda, Bostock v. Clayton County, and R.G. & G.R. Harris Funeral Homes v. EEOC, the Supreme Court will decide whether or not Title VII prohibits discrimination on the basis of sexual orientation or gender identity. Although the parties disagree as to the appropriate formulation of a but-for test to determine whether or not there was a discriminatory outcome, all parties do agree to the use of such a test, which asks “whether the evidence shows ‘treatment of a person in a manner which but for that person’s sex would be different.’” City of Los Angeles, Dep’t. of Water and Power v. Manhart, 435 U.S. 702, 711 (1978). However, but-for tests confuse more than they clarify the inquiry; a discriminatory outcome cannot be explained by appeal to just a discrete characteristic of a particular person. Individuals are not discriminated against because of these characteristics per se. Rather, they are discriminated against because of the social meanings and expectations that attach to these characteristics. Beyoncé and Taylor Swift illustrate the difference between individual-level causation and social explanation in two separate songs, “If I Were a Boy” and “The Man.” The explanation for why the counterfactual ‘male’ Beyoncé and Swift are evaluated differently than their current ‘female’ versions does not lie in individual-level features considered apart from the social world, but in social-level roles and expectations associated with those features. For this reason, a social explanation test—one that asks whether the social meanings of sex characteristics, rather than the characteristics per se, explain the outcome in question—is more suitable for determining whether or not Title VII has been violated

Accident Law for Egalitarians

The article goes back to the basics. It questions the fairness of our current tort law regime and the philosophical underpinnings advanced in its defense, a theory with its roots in Aristotelian thought, called corrective justice. We critique tort law and corrective justice from a standpoint of egalitarian fairness, inspired by distributive justice philosophers such as John Rawls and Ronald Dworkin. Our argument is that the strict theoretical and institutional insulation of tort law—and the normative theory underlying it, corrective justice—from other institutions and principles of justice, namely distributive and retributive justice, gives rise to deleterious consequences in terms of global fairness. Specifically, we claim that luck plays an unjustifiable role in determining dissimilar liability for similarly negligent actors, and dissimilar compensation for equally blameless victims. As many egalitarians support negation of undeserved luck to assure equality, we think the active operation of luck in tort law is a compelling critique of current practice

Supreme Confusion About Causality at the Supreme Court

Twice in the 2020 term, in Bostock and Comcast, the Supreme Court doubled down on a particular interpretation of how “but-for causation” applies to antidiscrimination statutes. According to the Court’s reasoning, an outcome is discriminatory because of some status—say, sex or race—if the outcome would not have occurred “but-for” the plaintiff’s status. We think this reasoning embeds profound conceptual errors that render the decisions deeply confused. Furthermore, those conceptual errors tend to limit the reach of antidiscrimination law. In this essay, we first unpack the ambiguity of the Court’s interpretation and application of but-for causal reasoning. We then show that this reasoning arises from a misapplication of tort law principles within antidiscrimination law, and that, as a result, it is both conceptually and normatively indeterminate

What's Sex Got To Do With Fair Machine Learning?

Debate about fairness in machine learning has largely centered around competing definitions of what fairness or nondiscrimination between groups requires. However, little attention has been paid to what precisely a group is. Many recent approaches to "fairness" require one to specify a causal model of the data generating process. These exercises make an implicit ontological assumption that a racial or sex group is simply a collection of individuals who share a given trait. We show this by exploring the formal assumption of modularity in causal models, which holds that the dependencies captured by one causal pathway are invariant to interventions on any other pathways. Causal models of sex propose two substantive claims: 1) There exists a feature, sex-on-its-own, that is an inherent trait of an individual that causally brings about social phenomena external to it in the world; and 2) the relations between sex and its effects can be modified in whichever ways and the former feature would still retain the meaning that sex has in our world. We argue that this ontological picture is false. Many of the "effects" that sex purportedly "causes" are in fact constitutive features of sex as a social status. They give the social meaning of sex features, meanings that are precisely what make sex discrimination a distinctively morally problematic type of action. Correcting this conceptual error has a number of implications for how models can be used to detect discrimination. Formal diagrams of constitutive relations present an entirely different path toward reasoning about discrimination. Whereas causal diagrams guide the construction of sophisticated modular counterfactuals, constitutive diagrams identify a different kind of counterfactual as central to an inquiry on discrimination: one that asks how the social meaning of a group would be changed if its non-modular features were altered.Comment: 11 pages, 5 figures, ACM Conference on Fairness, Accountability, and Transparenc

Supreme Confusion about Causality at the Supreme Court

Twice in the 2020 term, in Bostock and Comcast, the Supreme Court doubled down on the reasoning of “but-for causation” to interpret antidiscrimination statutes. According to this reasoning, an outcome is discriminatory because of some status—say, sex or race—just in case the outcome would not have occurred “but-for” the plaintiff’s status. We think this reasoning embeds profound conceptual errors that render the decisions deeply confused. Furthermore, those conceptual errors tend to limit the reach of antidiscrimination law. In this essay, we first unpack the ambiguity of this but-for causal reasoning. We then show that this reasoning arises from a misapplication of tort law principles within antidiscrimination law, and that, as a result, it is both conceptually and normatively indeterminate