In South Africa the term fair/unfair discrimination is often used to illustrate between lawful and unlawful discrimination. I get annoyed when they have the anti racism campaigns in English football when they say that society has to eradicate all forms of discrimination. I think they may mean all forms of unfair discrimination but it still seems ignorant to what discrimination really means.

There was a landmark case in the Western Cape where a rich wine farm was left in a will to the land owner's nephews. The land owner's 5 daughters sought to have the will deemed invalid because the daughters believed it was discriminated based on gender, because right or wrongly the land owner believed farming was a man's job.

After years of litigation the SA courts said that although the sister was indeed discriminated against that it does not invalidate a will. People are free to leave their possession in a will in accordance with any reason they may choose. In effect deeming it fair discrimination. Also noting an inheritance is a gift and nobody has a right to it.

So in closing, I would like to know if the US system has a similar concept of fair and unfair discrimination. If they even use those words. After all you discriminate against Pepsi everytime you buy Coke.

3 Answers 3


In the United States, what is "fair" and "unfair" is typically not a legal question, in large part because it is so subjective. There are some exceptions -- such as in copyright law or competition law -- but in the discrimination context, we use the lawful/unlawful distinction.

Bequeathing a house to your child solely because he is your child, for instance, is not fair but it is lawful. The same is true for giving more to your oldest child simply for being the oldest, or cutting a black relative out of your will: not fair, but lawful. Assuming there's a valid will, a court will rarely make a serious inquiry into the fairness of the decedent's discrimination among beneficiaries.

The same types of issues come up in contexts that are more routine subjects of discrimination law. In employment, for instance, you might have two employees: a lazy white salesman who's been around for 20 years and a new black woman who does an excellent job answering the phones.

If you only have enough money to give one raise, giving it to the black woman is both fair and lawful. Giving it to the white guy because he's been around longer is probably not fair but still lawful, while giving it to him strictly because he's white is probably neither fair nor lawful.

The inutility of the fair/unfair distinction can become especially clear in the affirmative-action context, where the question of fairness remains hotly debated.

If an employer has two equally qualified candidates, would it be fair to require him to choose a black applicant over a white applicant as a means of redressing centuries of discrimination against blacks? What if the black applicant is only marginally less qualified? What if the black applicant is far less qualified? There are many who think each of these would be fair, and there are many who think none of them would be.

In the end, then, the courts tend only to ask whether discrimination is lawful, which can usually be resolved by applying the facts to the law, leaving questions about what is fair to lawmakers and commentators.

  • It could be that fair/unfair is being used as synonymous. What SA courts consider unfair discrimination is unlawful discrimination. Funny enough SA courts have our ridiculous form of AA/EE as fair discrimination.
    – Neil Meyer
    Commented Jan 9, 2022 at 18:08
  • I think I can see why they'd categorize that as fair. South African whites set up a pretty ridiculous affirmative-action regime for themselves. I'm pretty comfortable reversing those roles for a while.
    – bdb484
    Commented Jan 9, 2022 at 22:27

Fair/unfair is for sports fields not courtrooms

The law only cares about legal or illegal

Some things that are legal are manifestly unfair. For example, it’s manifestly unfair that some people are born destitute while others are born filthy rich but it’s not illegal.

Discrimination by anyone on any basis is legal unless there is a law that says it isn’t.

Anti-discrimination law at state and Federal level is couched in terms of a context (employment, government services, health care etc.) and an unlawful basis (race, gender, religious belief etc.). You have to be within both the context and the basis to be unlawful. Further, within this there are specific exemptions: if you are casting Othello you can insist that the actor be male, black and mid-thirties. Or, for artistic reasons, non-binary, Norwegian and mid-seventies.

In no case that I can think of does anti-discrimination law intrude into the “personal”. If you want to be racist, sexist, ageist, sexophobic etc in your personal life, you do you. This includes choosing who you leave your assets to in your will.

  • I find the common law ways, as you guys describe it, pretty pathetic. In some if not all continental law jurisdictions, you have to walk a five line for a will to be actually enforced and not a sort of statutory default inheritance be ordered and fairness is very much the essence of the inquiry. And, although I couldn’t cite sections of law, the effective default of a will or the partial invalidation of certain provisions of it implies a right to the inheritance which is different from a gift. The government may only become the inheritor in limited cases. Completely different overall.
    – kisspuska
    Commented Jan 8, 2022 at 12:40
  • OP’s example will would most definitely be invalidated. You don’t even need to discriminate against on a special or protected basis for an invalidation.
    – kisspuska
    Commented Jan 8, 2022 at 12:43
  • 1
    @kisspuska yes, common law is far less paternalistic than civil law - the English and their descendants have never really trusted government to do the right thing.
    – Dale M
    Commented Jan 8, 2022 at 13:16

The closest that you can come is as exemplified here, where the agency states the generalization that

The laws enforced by EEOC makes it unlawful for Federal agencies to discriminate against employees and job applicants on the bases of race, color, religion, sex, national origin, disability, or age.

Anti-discrimination laws always state a sphere of prohibition (employment, housing, etc.) and a basis (race, religion, age etc.). There are also multiple jurisdictions, for example there are federal laws, state laws, and even municipal laws. It may then be legal to discriminate on one basis at the federal level but prohibited at the city level. (This is because the federal government has a specific domain where it can set the rules and cities can have a different smaller domain). The concept of "fair discrimination" as opposed to "unfair discrimination" does not exist under US law, instead it reduces to "illegal discrimination" versus "everything else". Liking / not liking Pepsi/Coke or Chinese vs. Mexican food is not regulated by law in the US.

  • There are also contexts in which discrimination laws do not apply. For example, it is not unlawful to discriminate in one's choice of spouse, and discrimination laws are much weaker when seeking a roommate to share a one bedroom apartment, than they are when seeking tenants for an apartment building. There are also times when a normally discriminatory factor (e.g. race) can be a bona fide occupational qualification (e.g. acting in a historical documentary about a person of a particular race).
    – ohwilleke
    Commented Jan 10, 2022 at 23:24

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