The Limits of Equality - Wishing for Discrimination?


The Limits of Equality – Wishing for Discrimination? Yifat Bitton Abstract The article focuses on the different manner in which antidiscrimination regimes treat groups that have been discriminated-against de jure and de facto. The Article approaches the prerequisite of antidiscrimination laws that there be some past or on-going discrimination in a manner that diverges from the dominant view that discrimination is a purely destructive force. The central argument is that the way in which de jure, overt and blatant discrimination necessarily must create a coherent group identity recognized by law allows groups that are discriminated against in this manner to obtain remedial relief, whereas the law fails to recognize a coherent group identity for de facto discriminated-against groups and thus these groups have to overcome a structural challenge to obtain remedial relief to counter the discrimination. Thus, strangely, groups that are discriminated against de jure might be better off than groups that are discriminated against only de facto once one considers both the discriminatory and the remedial phases. After establishing the de jure/de facto distinction, the article explores the effects of this distinction on the equal protection claims of discriminated-against groups by contrasting the experiences of African-Americans and Mexican-Americans.


Law and Society

Date of this Version

August 2005