any situation in which a group or individual is treated unfavorably based on arbitrary grounds such as race, sex, religion, or disability. In early common law, discrimination referred to improper distinctions in economic transactions, which were narrowly defined to encompass situations in which a person who was engaged in a common calling, such as running a hotel or an inn, refused to serve an orderly patron, or in which a common carrier refused to transport the goods of one person on the same terms of service offered to others.

Economic Discrimination.

By and large, economic discrimination by private parties remains lawful in a free-enterprise system except where prohibited by common-law rules or statutes. The earliest statute was the British Railway Clauses Consolidation Act of 1845, which prohibited a common carrier from charging more to one person for carrying freight than was charged to others for the same service.

This legislation served as a model for federal and state statutes in the U.S., including the 1887 Interstate Commerce Act. Other important federal statutes are the Robinson-Patman Act (1936), which bars sellers of commodities in interstate commerce from discriminating in price between purchasers of goods of like grade and quality, and laws prohibiting discrimination in the rates set for land, sea, and air transportation.

Racial Discrimination.

The most pervasive form of discrimination in the U.S. has been racially motivated. The U.S. Constitution recognized the legality of slavery, the ultimate form of discrimination. The Emancipation Proclamation of 1863 and the constitutional amendments that followed the American Civil War changed the legal status of black people, but a series of U.S. Supreme Court decisions struck down federal statutes designed to enforce the amendments. The most important of these decisions declared unconstitutional a law that outlawed racial discrimination by private individuals and upheld state-enforced segregation. For decades after Reconstruction, the absence of adequate federal laws permitted discrimination against black people in employment and housing, public accommodations, the judicial system, and voting opportunities.

Discriminatory practices remained largely intact until 1941, when President Franklin D. Roosevelt issued an executive order forbidding discrimination in employment by a company working under a government defense contract. States began to legislate against discrimination in 1945. By 1964, when the federal Civil Rights Act largely superseded state legislation, 25 states had legal prohibitions against discrimination in employment and 31 states had laws against discrimination in public accommodations. Some states banned discrimination in the sale and rental of private housing, and some prohibited discrimination in college admissions. Provisions for enforcing such laws varied from state to state and were largely ineffectual.

On the national level, a major blow against discrimination was the unanimous Supreme Court decision in May 1954 in Brown v. Board of Education, in which the intentional segregation of black children in public schools was declared to be a violation of the 14th Amendment to the Constitution. Over bitter opposition, Congress passed the Civil Rights Act of 1957, but only the right to vote was expressly addressed; other provisions of the act established a new civil rights division in the Department of Justice and a fact-finding Civil Rights Commission. The Civil Rights Act of 1964 outlawed racial discrimination in most hotels, restaurants, and other public facilities; prohibited private employers and unions from practicing discrimination; and banned registrars from applying different standards to white and black voting applicants, a provision that was strengthened by the Voting Rights Act of 1965 and its later amendments. The 1964 law also authorized the U.S. attorney general to file an action when a “pattern or practice” of widespread discrimination was found; federal financial aid could then be withdrawn from programs in which racial discrimination persisted.

In 1968 Congress passed the Fair Housing Act, barring racial discrimination in the sale, rental, or financing of housing in which federal moneys are involved by way of loans, mortgages, or grants. Racial discrimination in employment by a state government agency was banned in 1972, and U.S. attorneys were authorized to sue noncomplying state agencies; similarly, the Equal Employment Opportunity Commission (EEOC), established in 1964, was authorized to file suit.

Racial discrimination practiced against Hispanic Americans—including Puerto Ricans in the East and Mexican-Americans in California and the Southwest—has also been widespread. This has generally followed traditional paths, including discriminatory policies in employment, housing, and access to the judicial system, but it has also involved such issues as bilingual education, fair treatment by the communications media, and prison reform. The League of United Latin American Citizens, Puerto Rican Legal Defense and Education Fund, and Mexican-American Legal Defense and Educational Fund have worked to defend the rights of these groups.

Asian-Americans have also suffered discrimination. The most egregious example was the internment (forced removal and incarceration) of Japanese-Americans from the West Coast during World War II; upheld by the Supreme Court in 1944, it was acknowledged as a major violation of civil liberties for which Congress apologized and provided reparations in 1990.

Discrimination Against Women.

American women have historically been victimized by discrimination in suffrage (which was not secured until a 1920 constitutional amendment), employment, and other civil rights (for many years, for example, women were denied the right to serve on juries). In the late 1960s the women’s movement experienced a rebirth, and the demand for legal equality with men was pressed not only against discriminatory practices but also against outmoded attitudes toward the role of women in society. Some gains against discrimination in employment were made as a result of the 1964 Civil Rights Act. In 1972 Congress passed the Equal Rights Amendment (ERA) to the Constitution and submitted it to the states for ratification. With only 35 state legislatures ratifying the amendment, however, the necessary approval by three-fourths of the states was not secured by the 1982 deadline. A series of Supreme Court decisions in the 1990s strengthened women’s protections against sexual harassment. See also Women’s Rights.

Discrimination Against Other Groups.

Throughout U.S. history many other groups have suffered racial or religious discrimination. For decades American Indians were forcibly deprived of their lands and denied civil rights. Congress enacted the Indian Civil Rights Act in 1968, and the federal courts have entertained a number of suits designed to restore to Indian tribes ancestral lands and hunting and fishing rights. Roman Catholics and Jews have also been subjected to discrimination, although these incidents have declined in recent decades.

Discrimination has also taken other forms. For many years urban voters were denied equal representation in Congress and state legislatures; the elderly have been faced with discrimination in employment and housing, despite federal and state laws designed to prevent such practices; former prisoners and mental patients have suffered legal disabilities after their terms of confinement ended; and many aliens have been denied equal employment opportunities. People with physical disabilities have endured discrimination in employment and in access to public facilities and transportation; the Americans with Disabilities Act of 1990 addressed these problems on the national level.

Widespread prejudice exists against homosexuals, who have been the targets of legal, social, and economic discrimination along with verbal and physical abuse. A growing number of state and local laws exist to protect the rights of lesbians and gay men against the consequences of homophobia. In 2003, the Supreme Court issued a landmark ruling holding, for the first time, that the Constitution gives homosexuals the “full right to engage in their conduct without intervention of the government” and that the state had no authority to “demean their existence or control their destiny” by stigmatizing their private sexual behavior. See also Homosexuality.

Discrimination Outside the U.S.

Many nations practice discrimination against foreigners and disfavored minorities within their borders. The bias may be religious, such as Protestants against Roman Catholics or Muslims against Jews, or vice versa; racial, as in the apartheid (see Apartheid and the Homelands.) system that was enforced in South Africa from the late 1940s to the early 1990s; or by gender, as in many Muslim countries where women have few rights. The laws of each country should be the means of combating discrimination, but often these laws encourage discriminatory practices.

International efforts to combat discrimination were minimal until the passage of the UN Charter in 1945. A broad statement of human rights is contained in the Universal Declaration of Human Rights, passed by the UN General Assembly in 1948, but it does not have a binding effect on member states. Later the General Assembly passed the Covenant on Civil and Political Rights (which went into effect in 1976), as well as specific covenants on the Prevention and Punishment of the Crime of Genocide, the Elimination of All Forms of Racial Discrimination, the Political Rights of Women, and the Elimination of All Forms of Discrimination Against Women. A majority of nations have signed these covenants. In 1986 the U.S. Senate finally endorsed the UN ban on genocide; six years later the Senate ratified, with several reservations, the Covenant on Civil and Political Rights.

The major obstacle to international protection of human rights is that most nations will not accept any interference with their internal affairs, including questions of discrimination against their own citizens. To a modest degree these difficulties have been overcome through regional bodies such as the European Commission of Human Rights and the Inter-American Commission on Human Rights. Human rights concerns have been an explicit component of U.S. foreign policy since the late 1970s, although policymakers have differed widely in the ways they balance such values against more pragmatic political and economic considerations.        N.D., NORMAN DORSEN, LL.B.

See also African-Americans; Anti-Semitism; Civil Rights and Civil Liberties.

For further information on this topic, see the Bibliography, sections 161. Women’s rights, 162. Discrimination, 163. Anti-Semitism, 247. Civil rights and civil liberties, 256. U.S. Constitution.