DISCRIMINATION - The Law Mind Legal Dictionary

DISCRIMINATIONAuthored

The Law Mind • 1345 words

Definition

Discrimination in law refers to the differential treatment of a person or group based on a protected characteristic — such as race, sex, national origin, religion, age, or disability — in a manner that disadvantages them relative to others similarly situated. The legal concept encompasses both intentional disparate treatment and facially neutral practices that produce disparate impact on protected classes.

The term operates across multiple distinct legal domains, each with its own framework:

1. Civil rights discrimination. The core modern meaning. Unlawful discrimination occurs when an individual is treated less favorably because of a protected characteristic in employment, housing, public accommodations, education, or credit. Federal statutes — including Title VII of the Civil Rights Act of 1964, the Fair Housing Act, and the Americans with Disabilities Act — define and prohibit specific forms of discrimination in their respective contexts.

2. Common carrier and rate discrimination. The older legal usage, now less prominent but historically dominant. A common carrier discriminates when it charges different rates or provides unequal facilities to similarly situated shippers or passengers without justification. This was the primary legal meaning through the late nineteenth and early twentieth centuries, driven by railroad regulation and the emergence of interstate commerce law.

3. Constitutional discrimination. Under the Equal Protection Clause of the Fourteenth Amendment, government action that classifies individuals based on race, national origin, or other suspect classifications is subject to heightened or strict judicial scrutiny. Constitutional discrimination doctrine governs state action; statutory antidiscrimination law extends protections into private conduct.

Common Language

Modern common usage (Wiktionary): Differential treatment of an individual or group to their disadvantage; treatment or consideration based on class or category rather than individual merit; partiality; prejudice; bigotry. Also, more neutrally: discernment or the act of distinguishing between things.

Historical common usage (Webster's 1913): The act of discriminating, distinguishing, or noting and marking differences; also, the arbitrary imposition of unequal tariffs for substantially the same service.

The gap between common and legal meaning runs in two directions. In ordinary modern speech, "discrimination" is uniformly pejorative, suggesting bias or prejudice. In law, the term is more precise: not all differential treatment is unlawful, only differential treatment based on a protected characteristic or, in the carrier context, without adequate cost or service justification. Additionally, the earlier neutral sense — mere discernment or distinction — survives in older legal texts and can mislead researchers reading nineteenth-century sources who encounter the word without the modern civil rights valence.

Common Confusion

Two distinct uses of "discrimination" regularly create confusion in legal research:

Common carrier discrimination vs. civil rights discrimination. These are legally unrelated frameworks sharing a word. A researcher entering antebellum or Gilded Age sources will encounter "discrimination" almost exclusively in the carrier context — unequal freight rates, differential facilities, preferential treatment of large shippers. The civil rights sense was not the dominant legal meaning until the mid-twentieth century. Reading older cases or treatises without awareness of this shift will produce systematic misinterpretation.

Disparate treatment vs. disparate impact. Within civil rights law, "discrimination" covers both intentional differential treatment (disparate treatment) and facially neutral policies with disproportionate adverse effects on a protected group (disparate impact). These are different legal theories with different elements and different defenses. A source discussing "discrimination" may be addressing one, the other, or both; researchers should not assume the theories are interchangeable.

Core Elements

In civil rights employment discrimination under the disparate treatment theory, courts apply a burden-shifting framework. The plaintiff establishes a prima facie case by showing: (1) membership in a protected class; (2) qualification for the position or benefit at issue; (3) an adverse employment action; and (4) circumstances giving rise to an inference of discriminatory intent. The burden then shifts to the employer to articulate a legitimate, nondiscriminatory reason for the action. The plaintiff must then show that reason is pretextual.

In the common carrier context, the elements are simpler: (1) the carrier charged different rates or provided unequal service; (2) to similarly situated shippers or passengers; (3) without a difference in cost, distance, or service that would justify the variation.

Why It Matters in Research

Chronological layering is the central research trap. Before the Civil Rights Act of 1964, the word "discrimination" in American legal sources almost always refers to carrier rate discrimination or, in constitutional sources, to equal protection doctrine in its early and often limited form. Researchers using full-text search across the Law Mind corpus without date filtering will pull sources from incompatible legal frameworks and risk anachronistic readings.

The carrier discrimination materials in Bouvier's are rich and detailed — freight rate inequality, facility disparities, the aggregate shipment problem — and represent a coherent body of law that predates and operates independently of civil rights doctrine. Anderson's cross-reference to CITIZEN is characteristically terse but signals that even at the time of Anderson's publication the civil rights dimension of discrimination was being processed through citizenship and status frameworks rather than the modern protected-class model.

Jurisdictional variation was significant in the carrier context. Bouvier notes that English and American courts diverged on whether aggregate shipment disparities between towns constituted unlawful discrimination — a split that matters for reading nineteenth-century cases and for understanding how federal interstate commerce regulation eventually preempted state approaches.

In the modern civil rights context, researchers must track the statute being applied. Title VII, the ADEA, the ADA, Section 1981, and the Fair Housing Act each define discrimination differently, recognize different protected characteristics, and provide different remedies and procedural frameworks. A case interpreting "discrimination" under one statute does not automatically govern another.

The constitutional floor set by the Fourteenth Amendment applies only to state actors. Statutory antidiscrimination law reaches private conduct but only in the domains Congress has addressed. Sources conflating constitutional and statutory discrimination doctrine — common in general encyclopedias and older treatises — require careful correction.

Historical Dictionary Support

Bouvier's provides the most substantive historical treatment, and it is almost entirely devoted to carrier discrimination. The entry explains discrimination as a breach of the carrier's common-law and statutory duty to treat all customers alike, covering both rate inequality and facility inequality. Bouvier notes the English-American split on aggregate town-rate disparities and cites Interstate Commerce Commission reporters alongside federal and state court decisions, reflecting the regulatory environment of the late nineteenth century. The civil rights dimension of discrimination does not appear in Bouvier's treatment in any meaningful form — a significant omission that accurately reflects the state of legal discourse at the time of publication but will mislead researchers who read Bouvier as a general authority on what "discrimination" means.

Anderson's entry is a single cross-reference to CITIZEN, which tells researchers that in Anderson's framework, questions of discriminatory treatment were processed primarily through status and citizenship doctrine. This is consistent with the Reconstruction-era legal structure but provides no analytical depth on discrimination itself.

Neither source addresses disparate impact theory, protected-class frameworks, or the statutory civil rights architecture that defines modern discrimination law. On those subjects, the historical dictionaries are silent by necessity, and researchers must turn to twentieth-century sources and the encyclopedia entries referenced above.

Jurisdictional Note

Antidiscrimination protections vary significantly by jurisdiction. Federal law sets a floor; many states and localities extend protections to additional characteristics (sexual orientation, gender identity, source of income, political affiliation) or apply lower thresholds for employer coverage than the federal fifteen-employee minimum under Title VII. Researchers working on state-law claims should not assume federal doctrine controls without checking applicable state statutes and their independent interpretive case law.

Encyclopedia Cross-Reference

The Law Mind Employment & Labor Law Encyclopedia: National Origin Discrimination (employment_21); Affirmative Action and Reverse Discrimination (employment_26); Anti-Discrimination Protections for Immigrant Workers (employment_151)

DISCRIMINATIONmain

Bouvier's Law Dictionary • 1928

administered: for example, if an old offender, a man of much intelligence and cunning, whose talents ren- der him dangerous to the community, induces a young man of weak intellect to commit a larceny in. company with himself, they are both liable to be punished for the offence. The law foreseeing such a case, has provided that the punishment should be proportioned so as to do justice, and it has left such apportionment to the discretion of the judge. It is evident that without such discretion justice could not be administered; for one of these parties as- suredly deserves a much more severe punishment than the other. And many matters relating to the trial such as the order of giving evidence, granting of new trials, etc., are properly left mainly or entirely to the dis- cretion of the judge; 18 Wend. 79, 90; 84 Barb. 291; 88 S. C. 899; 92 Mich. 621; 186 N. Y. 655; 2 C. C. App. 880; 111 N. С. 145. Decisions upon matters within the absolute dis- cretion of a court are not reviewable in courts of appeal; 157 Mass. 579; 150 id. 200; 111 N. C. 509; 102 U. S. 120; 8 C. C. App. 668; but the discretion in granting or refusing a writ of mandamus must be exercised under legal rules, and is 'reviewable in an appellate court; 78 N. Y. 56. Such a writ will not be granted to regulate the exercise of a discre- tion on the part of an official; 15 Fla. 817; 52 Ala. 87. A testator may leave it to his executor to construe the provisions of his will, and to decide doubtful questions concerning his intentions; 15 Fed. Rep. 696; and the donor of a power may leave its execution to the discretion of the donee; 4 D. J. & S. 614. In Criminal Law. The ability to know and distinguish between good and evil, - between what is lawful and what is un- lawful. The age at which children are said to have discretion is not very accurately as- certained. Under seven years, it seems that no circumstances of mischievous dis- cretion can be admitted to overthrow the strong presumption of innocence which is raised by an age so tender; 1 Hale, Pl. Cr. 27, 28; 4 Bla. Com. 23. Between the ages of seven and fourteen the infant is, prima facie, destitute of criminal design; but this presumption diminishes as the age in- creases, and even during this interval of youth may be repelled by positive evi- dence of vicious intention; for tenderness of years will not excuse a maturity in crime, the maxim in these cases being malitia sup- plet ætatem. At fourteen, children are said to have acquired legal discretion; 1 Hale, Pl. Cr. 25. See 88 Pa. 35; DOLI CAPAX; AGE.

DISCRIMINATIONmain

Bouvier's Law Dictionary • 1928

This word is now generally applied in law to a breach of the statutory or common-law duty of a carrier to treat all customers alike. It is applied to inequality in both rates of fare and rates of freight, and may also be prac- tised by inequality in the facilities afforded to different consignors. In regard to freight rates, discrimination means the charging shippers unequal sums for carrying the same quantity of goods equal distances; 95 N. C. 434. The fact that the higher charge is not unreasonable will not affect the case; 31 Fed. Rep. 57. The mere allowance of a rebate will not prove discrimination; for others may obtain the same advantage; but to contract to deny others the benefit of a rebate is discrimination; 22 Mo. App. 224; 38 N. J. L. 505; 32 A. & E. R. R. Cas. 413; 56 Ill. 513; 118 Ill. 250. Mere inequality in charges is not discrim- ination; it is such only when the ship- pers stand on the same footing in all re- spects. The reasonableness of unequal rates may be proved by the difference in the character of the goods, or the part of the line over which they are shipped, having due regard to the expense of carriage; 67 Ill. 11; 12 Gray 393; 74 Pa. 181; 9 Lea 684; 58 Tex. 98. It is held in Ergland that it is not an unlawful discrimination for a carrier to convey a large quantity of merchandise at a less rate than that charged for smaller quantities; for transportation in large and small quantities does not involve the same

DISCRIMINATIONmain

Bouvier's Law Dictionary • 1928

amount of trouble and expense; 4 Nev, & M. 7; 4 С. В. N. S. 366; but a contrary view prevails in the United States; 12 Fed. Rep. 309; 31 Fed. Rep. 652; 43 Ohio St. 379; 1 Interst. Com. Rep. 107; and in any case it is not lawful to charge a less rate to all the inhabitants of one town, irrespective of their individual shipments, than to those of another, though the aggregate of freight shipped by the former is greater than that shipped by the latter; 4 Eng. R. R. & Canal Traffic Cases 291. The rule requiring equal charges for equal distances does not require that the rates for a specified distance should be increased for every greater distance by the corresponding multiple of the specified distance; 111 E. С. L. 248; 1 Interst. Com. Rep. 480; 74 Pa. 190. Under the Interstate Commerce Act.- This question of discrimination arises in the United States most frequently under the provisions of the Interstate Commerce Act of 1887, Feb. 24; U. S. Rev. Stat. 1 Supp. 529, which provides: (§ 2) That if any com- mon carrier subject to the provisions of this act shall, directly or indirectly, by any spe- cial rate, rebate, drawback, or other device, charge, demand, collect, or receive from any person or persons a greater or less com- pensation for any service rendered, or to be rendered, in the transportation of passen- gers or property, subject to the provisions of this act, than it charges, demands, col- lects, or receives from any other person or persons for doing for him or them a like and contemporaneous service in the transporta- tion of a like kind of traffic under substan- tially similar circumstances and conditions, such common carrier shall be deemed guilty of unjust discrimination; (§3) That it shall be unlawful for any such common carrier to give any undue or unreasonable prefer- ence or advantage to any particular person, company, firm, corporation, or locality, or description of traffic, or subject such to any undue or unreasonable prejudice or disad- vantage; and (§ 4) That it shall be unlaw- ful for any such common carrier to charge or receive any greater compensation in the aggregate for the transportation of passen- gers or of like kind of property, under sub- stantially similar circumstances and condi- tions, for a shorter than for a longer dis- tance, within the same line in the same direction, the shorter being included in the longer distance. The fact that one railroad is long and circuitous, and therefore obliged to charge a less rate per mile to a competitive point than its shorter rivals, will not establish dissimilar conditions, nor does the fact that there is possible water competition; 1 In- terst. Com. Rep. 160; but differences in grade compelling the use of shorter trains, is to be considered in deciding the question of discriminations; 4 Nev. & Μ. 192. So, it would seem that an increase in the speed of trains will justify an increase in the rate of freight charged; 4 Eng. R. R. & Canal Traffic Cases 291; as may the fact that cars are of a peculiar construction, and only fit for hauling a certain class of freight, so that they must be returned empty; but not the fact that cars are of an improved construc- tion, so that more valuable freight is trans- ported in them; 1 Interst. Com. Rep. 182. On the other hand, it is not discrimination for a carrier to refuse to transport cattle in cars of a special construction furnished by the shipper, when it supplies cars for the same purpose, which it can use more con- veniently and profitably by reason of their being likewise so adapted for other freight when not used for carrying cattle; 6 Ry. & Corp. L. J. 364. The doing for or allowing to one party or place what is denied to another. 17 A. & E. Ency. 2nd ed.. 143. In interstate commerce, unjust discrimi- nations by carriers between persons, cor- porations, or localities, either in rates or facilities, in the rendition of like services under similar conditions and circumstances, is deemed unlawful by the Interstate Com- merce Act. (g.v.) 3 Moore, Carriers 2nd ed. 1759, 1784, 1785. For discrimination in legislation, see CLASSIFICATION IN STATUTES; EQUAL PRO- TECTION OF THE LAWS; FOURTEENTH AMEND-

DISCRIMINATIONn.

Websters Unabridged Dictionary (1913) • 1913

The act of discriminating, distinguishing, or noting and marking differences. To make an anxious discrimination between the miracle absolute and providential. Trench. The state of being discriminated, distinguished, or set apart. Sir J. Reynolds. The arbitrary imposition of unequal tariffs for substantially the same service. A difference in rates, not based upon any corresponding difference in cost, constitutes a case of discrimination. A. T. Hadley. The quality of being discriminating; faculty of nicely distinguishing; acute discernment; as, to show great discrimination in the choice of means. That which discriminates; mark of distinction.

discriminationnoun

Wiktionary (English) • 2026

Wiktionary contributors • CC BY-SA 4.0 • via Kaikki
Extracted and formatted for display by Law Mind. Source link opens the current Wiktionary page and its contributor history; it is not a frozen copy of this extract.

Discernment, the act of discriminating, discerning, distinguishing, noting or perceiving differences between things, with the intent to understand rightly and make correct decisions. | Differential treatment of an individual or group to their disadvantage; treatment or consideration based on class or category rather than individual merit; partiality; prejudice; bigotry. | The quality of being discriminating; acute discernment, especially in matters of good taste. | That which discriminates; a distinguishing mark, a characteristic.

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