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Excerpted from: Tanya Katerí Hernández, Latino Inter-ethnic Employment Discrimination, and the “Diversity” Defense, 42 Harvard Civil Rights-Civil Liberties Law Review. 259 (Summer, 2007) (281 Footnotes) (Full Document)


TanyaKHernándezFor the great enemy of truth is very often not the lie--deliberate, contrived and dishonest--but the myth, persistent, persuasive and unrealistic.

With the growing racial and ethnic diversity of the U.S. population and workforce, scholars have begun to address the ways in which coalition building across groups not only will continue to be necessary but also will become even more complex. Recent scholarship has focused on analyzing how best to promote effective coalition building. Thus far, scholars have not examined what that growing racial and ethnic diversity will mean in the context of individual racial and ethnic discrimination claims. What will antidiscrimination litigation look like when all the parties involved are non-White but nonetheless plaintiffs allege that a racial hierarchy exists and they are not necessarily interested in the group-politics agenda of coalition building? This Article focuses on the implications of increased diversity for the operation of employment discrimination law.

For instance, in a pro se petition alleging employment discrimination, Mr. Olumuyiwa, a Nigerian security guard, asserted that he and African American security guards were hired at a lower wage ($7.00 per hour) than Latino and Yugoslavian employees ($14.00 per hour) and received fewer hours than did other guards at the discretion of the Hispanic supervisor, who said he did not like the plaintiff because he was Nigerian. The supervisor also made overtly discriminatory remarks, such as “Why is your black-ass sleeping here?! I am going to deduct two hours pay from your black-ass paycheck!” and “We Hispanics run this office!” Because the rest of the management personnel were also Latino, the plaintiff felt that they condoned the supervisor's poor conduct. In that context, a plaintiff like Mr. Olumuyiwa is likely to be most concerned with having any harms he has experienced at the hands of a workplace racial hierarchy addressed before considering the importance of political coalitions with the ethnic group members who are comparatively advantaged by that hierarchy. Unfortunately, neither the literature about coalition building nor the employment discrimination jurisprudence is presently capable of addressing the problems of inter-ethnic discrimination plaintiffs whose claims are not as extreme in their manifestation of overt Latino anti-Black sentiment.

As this Article will explicate, non-White racial hierarchies appear opaque to decisionmakers and other legal actors, who find it difficult to recognize the indicators of discrimination. Agents of discrimination are perceived as uniformly White-Anglos and all incidents are envisioned as having a White-versus-non-White dynamic. For instance, the Equal Employment Opportunity Commission (“EEOC”) fails to collect any data about the race of those individuals who are agents of discrimination and racial harassment in the workplace. While this is presumably because the EEOC targets discrimination by employers, not individuals, the absence of racial data about the employers' representatives implicitly furthers the narrative that racism in the United States is solely a White/non-White problem. One EEOC attorney has even stated that there has been a “reluctance to bring cases against other minorities.” This reluctance exists even though the EEOC is beginning to see more cases in which different racial/ethnic groups are set against each other in the allocation of job opportunities. Indeed, employers generally demonstrate a preference for particular racial or ethnic groups in the labor market beyond a mere economic preference for low-wage immigrant workers. For instance, among immigrant workers, employers prefer those with lighter skin tone.

Similarly, despite the fact that a significant level of overtly anti-Black Latino gang violence occurs in the state of California; Chicago, Illinois; and most recently in Perth Amboy, New Jersey, the FBI's statistical collection of hate-crime incidents fails to provide a mechanism for assessing the number of Latino offenders. Instead, the FBI tabulates suspected offenders as White, Black, American Indian/Alaskan Native, Asian/Pacific Islander, Multi-Racial, and Unknown. Thus, the existence of Latino hate crime perpetrators is statistically invisible despite news reports of its occurrence. In turn, the notion that hate crime is solely a White/non-White phenomenon is maintained.

As Eric Yamamoto notes, the traditional civil rights approach focuses on conflicts with Whites and not with other communities of color. He also observes that the focus on White-Anglos underappreciates the extent to which inter-ethnic conflicts can quickly escalate into intergroup controversies because of the deep and often unacknowledged racial grievances. Yamamoto recommends that in order to build more effective coalitions, civil rights attorneys should envision racial justice practice as something more than the enforcement of civil rights laws. They should instead deploy interracial justice inquiries in the venue of grassroots organizing in order to acknowledge how racial groups harm one another. Yamamoto's work, however, does not examine the focus of this Article: the development of a conceptual framework for effectively presenting and understanding inter-ethnic discrimination claims with the goal of disrupting the judiciary's singular focus on White/non-White discrimination.

This Article treats “inter-ethnic discrimination” as discrimination among non-White racial and ethnic groups. The concept is defined broadly to include discrimination among members of different ethnic subgroups, such as discrimination by Puerto Ricans against Dominicans or by White Latinos against Afro-Latinos. Inter-ethnic discrimination is viewed expansively in order to depict the many ways non-White ethnic groups and subgroups are complicit in maintaining racial hierarchy in the workplace. Thus, the classic disparate treatment employment discrimination cases, in which White employers exclude or differentially treat particular racial/ethnic groups, are not part of this examination of inter-ethnic discrimination. Furthermore, the dearth of reported cases involving systemic disparate treatment and disparate impact in the inter-ethnic context precludes the specific examination of those forms of discrimination in this Article's analysis of inter-ethnic discrimination.

The majority of inter-ethnic employment discrimination claims appear to be those in which Latinos are involved in turn as victims and as agents of individual disparate treatment in the workplace. Latinos and individual disparate treatment cases are thus the focus of this exploration of inter-ethnic discrimination. This focus is warranted by demographic projections that one in four job seekers by the year 2020 will be the child of a Latino immigrant and that Latino workers will increase their representation in the workforce from the current rate of 12% to 25% by the year 2050. Latino-owned businesses have also increased 232% between 1987 and 1997. In 1997 alone, Latino-owned businesses employed 1,492,773 people. Furthermore, as the fastest-growing ethnic/racial minority in the United States, Latinos have been celebrated in the public discourse as a multiracial people incapable of racial discrimination. Examining Latino bias may tell us much about the ability of legal actors to recognize and articulate the harm of inter-ethnic discrimination in a legal system steeped in an understanding of discrimination as solely a White/non-White phenomenon.

In the emerging body of inter-ethnic discrimination cases, Latinos figure prominently in allegations of employment discrimination in ways that contradict the image in public discourse of a multiracial people who do not racially discriminate. In these cases, judges seem unable to appreciate Latino manifestations of bias for two reasons. First, judges appear to be unfamiliar with Latin American racial ideology and how Latinos in the United States express racial bias. Second, they impute to diverse workplaces a shield against discriminatory treatment claims. This is best exemplified by one judge's explicit claim that “[d]iversity in an employer's staff undercuts an inference of discriminatory intent.” Such a presumption both contravenes established employment discrimination doctrine and impairs a thorough inquiry into inter-ethnic employment discrimination claims. Indeed, it effectively operates as a defense to discrimination in individual disparate treatment cases when an accusation of inter-ethnic discrimination is at issue.

This Article uses the term “diversity defense” to describe the way in which legal actors view a racially “diverse” workplace as the equivalent of a racially harmonious workplace, thereby failing to recognize incidents of discrimination and the relevant caselaw. Viewing all people of color as the same and overlooking the particular histories of racial animus within and across different ethnic groups can cause a perceived equivalence of workplace diversity and racial harmony. The lack of judicial knowledge about non-White racial hierarchies generally, and Latino ethnic/racial differences and attitudes specifically, facilitates the inclination to construct a diversity defense. Then, in a circular fashion, the diversity defense hinders judicial awareness of Latino heterogeneity and inter-ethnic strife. In response, this Article proposes a “Multiracial Racism Litigation Approach” (“MRLA”) to enable decisionmakers to identify and address discrimination in inter-ethnic contexts.

Part I of this Article will present the social science literature illuminating the complexity of racial attitudes among Latinos, which judges generally do not appreciate. Part II will analyze the emerging Latino inter-ethnic employment discrimination cases. These cases demonstrate that judicial inability to recognize racial discrimination when it occurs in an inter-ethnic context leads judges to deploy an inappropriate diversity defense to discrimination claims. Part III therefore proposes that legal actors address the particular litigation needs of inter-ethnic claims through a multiracial racism lens. The proposed MRLA focuses on how an ethnic/racial group is advantaged or disadvantaged depending on the context. As such, it is better able to elucidate and address the harms of inter-ethnic employment discrimination, without imputing magical powers to the existence of workplace diversity.

. . .

Because of the long legacy of White/non-White racism in the United States, discussion of race has rightly focused on the White/non-White paradigm of U.S. race relations and its effects on civil rights enforcement. But the changing demographics of the United States mean that we need to expand the judicial analysis of racism to include considerations of how groups of color can be complicit and even active agents in discrimination against other groups of color. Accordingly, the national dialogue about race needs to examine each ethnic group's racial attitudes in order to have a complete picture of race relations in today's United States, and of the growing dynamic of inter-ethnic civil rights claims. The failure to address the interplay of diversity discourse and inter-ethnic discrimination claims will undermine the social importance of equality in the workplace. Allowing diversity discourse to proceed unchecked in employment discrimination cases will leave open the very concrete possibility that employers will begin to construct their workplaces as “diverse” to ward off lawsuits, while simultaneously maintaining a racial hierarchy. The MRLA proposed here is but one possible method for more effectively navigating the realities of racism in a multiracial world. The concept seeks to focus judges on the applicability of established employment discrimination doctrine to the context of inter-ethnic discrimination. Such an endeavor is imperative if inter-ethnic discrimination allegations are to receive the full inquiry that they deserve.

Professor of Law & Justice Frederick Hall Scholar, Rutgers University School of Law-Newark.