Abstract
Excerpted From: Martin Kwan, Proving Intra-Racial Discrimination in the U.S. and Canada: the Room for Making the Artificial Distinction Between Genealogical Relatedness and Race, 54 University of Miami Inter-American Law Review 1 (Spring, 2023) (123 Footnotes) (Full Document)
Intra-racial discrimination refers to discrimination between people of the same race based on racial grounds. Whilst such an act may sound counterintuitive, it does occur all over the world. There can be a number of reasons for this to happen and the U.S. Supreme Court has reiterated that "[b]ecause of the many facets of human motivation, it would be unwise to presume as a matter of law that human beings of one definable group will not discriminate against other members of their group." For example, in cases of "associational discrimination," "Whites discriminate against other Whites because of their association and relationship with racial minorities." The courts have recognized this type of racial discrimination.
Besides, same-race discrimination can also happen amongst ethnic minorities. Justice Marshall of the U.S. Supreme Court explained this from the social perspective: ––––
Social scientists agree that members of minority groups frequently respond to discrimination and prejudice by attempting to disassociate themselves from the group, even to the point of adopting the majority's negative attitudes towards the minority. Such behavior occurs with particular frequency among members of minority groups who have achieved some measure of economic or political success and thereby have gained some acceptability among the dominant group.
Additionally, intra-racial discrimination can occur as a manifestation of socio-economic class differentiation amongst people of the same race. For instance, "White trash" is an intra-White slur used for social class separation between the impoverished and the wealthy. Some have argued that the Indian caste discrimination is another example, but it involves a more controversial intersection between race and class.
U.S. law prohibits racial discrimination, and it was held to include same-race discrimination. Nevertheless, it is notoriously difficult to prove intra-racial discrimination in the U.S. Jones suggested that this is because same-race discrimination is "so rare, so seemingly against the norm and illogical, that jurors may deny it or be skeptical about whether it occur." Furthermore, Jones explained that:
same-group participation seemingly ameliorates the severity of the harm and the absence of a White perpetrator eliminates White moral obligation as a possible catalyst for action), then plaintiffs will have a tough row to hoe when both the plaintiff and the decision maker are members of the same group. Direct evidence may overcome some of these hurdles. But circumstantial evidence leaves too much room for doubt to flourish.
This article takes the role of Devil's advocate and suggests that there is another unexplored issue of proving "race". It argues that the current judicial approach is willing to distinguish notions that is conceptually similar to "race." This leaves room for a defendant to contend that the discrimination was not motivated by race. Factually, the defendant claims to believe in being remotely genealogically related to the plaintiff. This is not unworthy of credence, because even modern genealogy and root tracing can be an imaginative, forged exercise. Furthermore, this belief will not be undermined by modern science and genetics. Legally, this argument is supportable because there are cases holding that "race" or "ancestry" is different from genealogy or "line of descent."
This article will then contrast with the Canadian approach, which would reject such an argument. This is because Canada has adopted an expansive interpretation of impermissible grounds. In particular, Canada includes "ancestry"--which is not explicitly included in their statute--in the statutory grounds of "race," "ethnicity" and "family status." This covers more situations that resemble intra-racial discrimination, such as discrimination based on remote or close bloodline (un-)relatedness. However, whilst the U.S. courts claim to have adopted a liberal interpretation, they also openly oppose expanding the law and have therefore narrowly interpreted "ancestry" and other impermissible grounds. This makes proof more difficult and leaves open gaps of protection for same-race discrimination in the U.S.
[. . .]
This article raises the argument that illustrates how the courts' willingness to distinguish "race" from comparable notions could lead to conceptual confusions and seemingly artificial distinctions. Based on this clear-cut judicial approach, there is an arguable case that alleged intra-racial discrimination can be lawfully explained as discrimination based on perceived genealogical relatedness.
Upon comparison between Canada and the U.S., it is shocking that the non-statutory "family status" ground in Canada has a broader coverage than the statutory ground of "ancestry" in some U.S. laws--in the sense that the former covers both close relatives and distant ancestors of nearly two centuries ago, but the later does not even cover uncles as in the New Jersey case of Walsifer. But for the comparison and looking at the Canadian approach alone, one might have doubted the Canadian approach for its seemingly arbitrary ambit. However, this Argument shows that having such a wide scope is not necessarily detrimental and could bridge gaps in protection against intra-racial discrimination because these separate notions like "ancestry" can still be related to "race" depending on the context.
Honorary Fellow, Asian Institute of International Financial Law, University of Hong Kong. Associate in Research; Fairbank Center for Chinese Studies, Harvard University. Email:
