Employment Discrimination in the Ethnically Diverse Workplace

Fordham Law School FLASH: The Fordham Law Archive of Scholarship and History Faculty Scholarship 2010 Employment Discrimination in the Ethnically Diverse Workplace Tanya K. Hernandez Fordham University School of Law, [email protected] Follow this and additional works at: https://ir.lawnet.fordham.edu/faculty_scholarship Part of the Civil Rights and Discrimination Commons, and the Labor and Employment Law Commons Recommended Citation Tanya K. Hernandez, Employment Discrimination in the Ethnically Diverse Workplace, 49 Judges' J. 33 (2010) Available at: https://ir.lawnet.fordham.edu/faculty_scholarship/14 This Article is brought to you for free and open access by FLASH: The Fordham Law Archive of Scholarship and History. It has been accepted for inclusion in Faculty Scholarship by an authorized administrator of FLASH: The Fordham Law Archive of Scholarship and History. For more information, please contact [email protected]. .. .......... By Tanya Kateri Hernandez a1cial integrto has long been the equivalent of racially harmonious ones. 90 percent of the approximately 10 nmil- touchstone of racial progress in the This equivalence effectively treats all lion enslaved Africans brought to the 0 workplace. But integration is only the people of color as the same and over- Americas were taken to Latin America beginning of the struggle to end racial dis- looks the histories of racial animus with- and the Caribbean, whereas only 4.6 per- crimination. As workplaces become more in and across different ethnic groups. cent were brought to the United States. diverse, they do nor necessarily becomie less The judicial fashioning of a diversity In Latin America and the Caribbean, racially discriminatory. Diverse workplaces defense to employment discrimination as in the United States, lighter skin and may be characterized by antagonism appears to reflect wishful thinking that European features can increase one's between people ofdifferent races. Interethnic diversity is a panacea for racial conflict.' chances for socioeconomic advancement, discrimination may exist along side the discrimination that has traditionally occurred between blacks and whites, i.e., non-white racial and ethnic groups may engage in disparate-treatment employment discrimination actionable under Title VII of the 1964 Civil Rights Act.' Examples of interethnic discrimination occur among members of different ethnic subgroups, as when Puerto Ricans allegedly discriminate against Mexican-Americans or Dominicans, or white Latinos allegedly discriminate against Afro-Latinos. In reality, then, there are many ways that non-white ethnic groups and subgroups can be complicit in race- based decision making in the workplace. In the emerging interethnic discrimination cases, workplace diversity has been viewed as something of a safe harbor from charges of discrimination. This view exists despite established Supreme Court precedent to the contrary. Early in the history of Title VII, the Supreme Court rejected the premise that no question of bias could be present if a workplace has many members from a plaintiff's protected grouIp.2 Unfortunately, diversity alone cannot while darker skin and African or indig- Yet, when the context is contemporary eradicate racial discriminaition. enous features may limit opportunities 4 interethnic discrimination, the emerging The majority of interethnic employo- for social mobility. Attitudes of bias are cases suggest that some courts are so viscer- ment discrimination claims that are start- also well established within the Latino ally impressed by the vision of a presum- ing to appear are those in which Latinos community. Sociological studies of Latino ably diverse workplace that they miss the are involved as victims or as agents of racial attitudes often reflect a preference applicability of this precedent and instead individual disparate treatment discrimi- on the part of Latinos for maintaining construct what I term a makeshift "diver- nation in the workplace. Accordingly, it social distance from African Americans. sity defense" to discrimination. is important to note that racisma, and in And wvhile the social distance level is larg- The diversity defense describes the particular anti-black racism, is a pervasive est for recent Latin-American immigrants, and historically entrenched fact of life in more established communities of Latinos Latin America and the Caribbean. Over in the United States are also character- Fall 2010 33 HeinOnline -- 49 Judges J. 33 2010 ized by their social distance from African judge explicitly stated int the opinion that the equivalent of treating immiigrants from Americans.' "Diversity in an employer'sstaff undercuts Nigeria, Egypt, and South Africai as racially Consider a paradigmatic case that an inference of discrim1tina to(ry intent." homogYeneous. As in Africa, thec con-tinent deimoistrates the analytical problems This decision embodies a number of of Latin America contains va,,st differenc- surfacing in the emerging interethnic serious legal and factual errors. To begin es in racial composition and biais. Those discrimination cases. A self-identified with, the notion that dive rsity in the work- countries perceived or touted as European Afro-Panamanian tutor of Spanish sued place disproves bias ruins entirely counter are v:iewed as more adIvanced than those his university employer for failure to to a significant line of' Supreme Court more significantly populated with people renew his appointment as an adjunct decisions explaining the pr-oper use, and of indigyenous or African descenr. Thus, in instructor, claimingy a violation of Title nonuse, of statistical iniformnation about the list of countries the judg(.e imentioned in VII's prohibition against race and nation- diversity. The rules of statistical inference finding an absence of national origin bias, al origin discrimination. The plaintiff and its evidentiary use were incorporated Latin American racial constructs would alleged that the Latinos who directed into the jurisprudence of employment dis- rank Argentina as a highly v'alued white the department where he worked discrimination under Castaveda v. Partida.1 country. followed by Peru, then Mexico with criminated against "Black Hispanics," In its decision there, the Supreme Court its indigyenous population. Leaist respected and that there was a disturbing culture explained that statistically significant would be the Dominican Republic and the of favoritism in promoting white Cubans, measures showing a lack of workplace plaintiffs own country of origin, Panama, Spaniards, and white Hispanics from diversity may constitute evidence of dis- because of their dominance by African- South America. The court. not under- crimination.' But that doesn't work in descended peoples. standing that a color hierarchy informs reverse: the presence of statistical diver- For Latinos influenced by Latin the ways in which many Latinos experi- sity in the workplace (mnore precisely, the American racial paradigms where each ence the racism and national origin bias absence of statistical evidence of a lack country has a racial identification, a diverse of othler Latinos, dismissed his racial of diversity) cannot be equated with the workforce of Latinos is not the immediate discrimination claim on summary judg- absence of discrimination itself. This is equivalent of a bias-free context. Nor is menit.6 The national origin claim was also so because, as the Supreme Court noted a color preference divorced from a racial- 2 dismiissed on summary judgment, because in Teamsters v. United States,' population izdielgy within the Latino context. five of the eight adjunct instructors that statistics have been traditionally consid- Diversity mecans something more nuanced were reappointed instead of the plaintiff ered relevant to Title VII cases only in the to people of color, who tend not to view were natives of other South or Central context of statistically significant, gross each ethnic group as the same as another American countries such as Argentina, underrepresentations of racial minorities, simply because it is non-white. Yet the Peru, Mexico, and the Dominican since our racial history has shown that, in public discourse about diversity as a pana- Republic. The surviving discrimination the absence of any other explanation, it is cea for racial discrimination overlooks the claim that went before the jury, which more likely than nor that racial discrimina- complexity of actual diversity. In a diverse was based on color, was weakened by the tion accounts for the underrepresentation. workplace there is the possibility for racial absence of information as to how color Indeed, workforce statistics were first harmony, but there is also the possibility for bias may be a manifestation of racism in approved for use in individual disparate a racial dystopia. What the emerging cases Latino cultures, and the jury returned a treatment cases only insofar as they "may suggest is that, unlike with traditional black- verdict in favor of the defendant. The be helpful to a determination of whether white employment discrimination cases, petitioner's refusal to hire respondent interethnic discrimination cases require a conformed to a general pattern of discrim- broader inquiry, one that will reveal how ination." 10 There was no suggestion that bias is manifested in multiethnic conitexts. workforce statistics could have an excul- Demogc)raphers project that one in patory use. Moreover, in Phillips v. Martin four job seekers will1

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