This article takes the role of the Devil’s advocate in order to question the judicial willingness to distinguish “race” from comparable notions. It suggests that, depending on the exact circumstances, a defendant can make an arguable case that the alleged intra–racial discrimination is motivated by perceived genealogical relatedness, but not because of belonging to the same “race.” Factually, the defendant claims to believe in being remotely genealogically related to the plaintiff. This is not unworthy of credence, because it is academically recognized that modern genealogy and root tracing can be an imaginative, forged exercise. Legally, this argument is supportable because there are cases holding that “race” or “ancestry” is different from genealogy or “line of descent.”
By contrast, such an argument would not work in Canada, because Canada has adopted an expansive interpretation of the impermissible grounds. In particular, Canada includes “ancestry”—despite the fact that it is not explicitly included in their statute—on the 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 in the U.S.
Proving Intra-Racial Discrimination in the U.S. and Canada: The Room for Making the Artificial Distinction Between Genealogical Relatedness and Race,
54 U. MIA Inter-Am. L. Rev.
Available at: https://repository.law.miami.edu/umialr/vol54/iss2/3