"לא רואים עליך": מילכוד העמימות של זהות מזרחית בפסיקת הפליה במועדונים

This article examines the ways in which Mizrahi identity is understood, portrayed, and reproduced in judicial decisions regarding ethnic profiling claims in dance club doors.Based on textual and quantitative analysis of the hundreds of cases decided in the first15 years since Israel legislated its anti discrimination law in services and commodities in the year 2,000, and on other methodologies such as qualitative interviews with bouncers and field observations at club-doors, this study reveals a troubling discursive convention in the case law. Judges determine the plausibility of the plaintiff’s claim that his (plaintiffs are almost entirely male) entrance to the club was denied due to his ethnic origin, by relying on their own visual inspection of plaintiff’s appearance, complexion and morphology, as well as on his occupation or education as markers of cultural and symbolic capital that supposedly indicate ethnicity. Courts, then, produce accounts of the nature of Mizrahi identity based on seemingly self-evident knowledge, attempting in vein to capture and stabilize Mizrahi identity, a socio-legal category that is unstable and that resists easy classification. Paradoxically, then, the body of case law interpreting and applying a central anti discrimination statute undermines the statute’s purpose by rearticulating reductive stereotypes about Mizrahi ethnicity, and attributing epistemological validity to shallow characteristics attributed to people of Mizrahi origin. Moving beyond critique, the article offers concrete and practical ways to waive courts of the need to verify that plaintiff is indeed Mizrahi as he claims to be. Namely,changing the evidentiary structure so that the burden of proof would shift to the defendant to establish a legitimate reason for denying the plaintiff’s admission, or, less radically, making a more liberal use of the presumptions that already exist in the statute,but courts neglect to use.