Whatever Happened to 'Anti-Semitism'?: How Social Science Theories Identify Discrimination and Promote 'Coalitions' Between 'Different' Minorities

Abstract

This Article shows how many -isms, such as anti-Semitism, sexism, and racism, are often intimately connected. This Article argues that the recent emphasis on the question of the relationship between forms of discrimination and coalitions between groups begs more fundamental questions of how we categorize discrimination in the first place. The Article contrasts two very different sets of approaches to discrimination. Atomized discrimination assumes those who discriminate always intend to harm someone they see as a woman, an African-American, a Jew, or some relatively particular other. Generalized discrimination, in contrast, occurs when those seen as part of some ingroup (such as those perceived as heterosexual white Protestant males free from disability) receive better treatment than anyone outside that ingroup. Sometimes this involves outgroup hostility: people detest anyone not like they are. Sometimes this reflects ingroup sympathy: people don't really dislike those unlike themselves, but they just overlook everyone else. Greater attention to generalized discrimination would have two practical payoffs: proof effects and coalition effects. The proof effects mean we'll make a more informed conclusion about whether impermissible discrimination occurred in a significant number of cases, particularly cases involving those employed by relatively small employers, small departments, and in homogenous settings. Generalized discrimination would help better identify discrimination even within the framework of existing antidiscrimination law and mainstream legal theory. Generalized discrimination, moreover, would also better identify discrimination in some cases than more radical concepts, such as intersectionality associated with Critical Race Theory. In addition, generalized discrimination would also enhance how we address discrimination in other ways, including mediation and arbitration of particular claims and public discussions of bias, such as the presidential conversation on race and bar studies of gender and racial bias. As individuals in groups would see how generalized discrimination operates, coalitions between such different groups would grow, and individuals might treat others more fairly. The prologue puts these rather abstract terms of engagement in concrete settings. Part One outlines how and when generalized discrimination would affect particular cases and promote coalitions between minorities. Part Two shows how attention to generalized discrimination would lead to better results in some court cases. Part Three shows how generalized discrimination fits within social science theories and research since at least the 1940's. In light of the social science evidence, Part Four elaborates how courts and various kinds of ADR should use evidence of generalized discrimination, including evidence of generalized nondiscrimination by defendants. Finally, Part Five considers barriers to seeing generalized discrimination in cases and, more broadly, barriers to coalitions between groups. Overall, the Article attempts to address these questions by supplementing legal doctrine with research and theories from psychology, sociology, economics, and legal theory, including more conventional theory and recent strands of Critical Race Theory and feminist legal theory.