The trouble with all the approaches described in preceding chapters is that they put the onus on victims of discrimination to prove their racial bona fides. This not only perpetuates the concept of race but also forces the victim to claim a kind of racial otherness as a prerequisite to obtaining civil rights protection. Regardless of the means of determining racial status, this requirement is inappropriate and offensive to some people.

There is a solution to this problem, which is to focus on the perpetrator, asking whether the discriminator targeted Jewish victims based on racial biases or misperceptions. Under this subjectivist method, one who targets Jews based on notions of Jewish racial inferiority discriminates “because … of race” even if history, scientific evidence, and common usage indicate that Jews do not form a race. The subjectivist approach also can be described as a theory of imputed group membership, similar to the doctrine used in refugee and asylum law, because it permits persons to claim those group traits which are imputed to them by their oppressors, whether their oppressors’ perceptions are accurate or not. This approach has powerful advantages, but it also has a substantial drawback, as we will see.