Employment Discrimination in the Ethnically Diverse Workplace

Home , Diversity (business), Diversity (politics)

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2010

Tanya K. Hernandez Fordham University School of Law, [email protected]

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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

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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 be the child of a Marietta Corp.," the Court rejected the Latinio immiigrant by the year 2020 and that- Tiowreswlvatyicae

Tay dKtr Hrn de is professor of law, Fordham University School of Law, and 2010-2011 visiting research scholar, Princeton University Program in Law and Public Affairs. She may be reached at [email protected].

34 34e J Vol. 49 No. 4 HeinOnline -- 49 Judges J. 34 2010 the workplace, presents major challenges skinned Pakistani citizen from the prov- In short, the judge is asserting that to the employment discrimination regime ince of Punjab employed at the National when Title VII cases implicate ra.,cial under Title VII. One of these challenges Bank of Pakistan's New York branch meanings beyond what is commonly lies in the collection and presentation uf alleged that the bank discriminated expected in the U.S. setting, a fuller record information about the existence of bias against him in favor of darker-skinned about those meanings must be established within Latino subgroups. Pakistani citizens from the province of in order for the existing legal doctrine to A fuller record of interethnic racial Sind. In dismissing the plaintiffs claim, be applied effectively. And that is exaictly animus is needed to add nuance to the the court noted that, while a number of why the MRLA proposed herein shoutd jurisprudence of antidiscrimination so light-skinned employees predominated in be more systematically applied. that the multiethnic workplace becomes the less highly paid job positions, it was The goal of the MRLA is to contextu- less opaque to problematic that alize allegations of interethnic discrimina- fact-finders and no "evidence by tion by (1) establishing the premise that legal actors can way of expert tes- interethnic hierarchy and bias may exist, identify the new timonv or treatise (2) focusing the inquiry on whether there markers of racial was presented with were racially advantaged and disadvantaged discrimination. 13 c respect to color dif- employees among the diverse non-white The Multiracial ferences among the workers, (3) providing the social science Racism Litigation 1 various provinces data about the relevant racial attitudes, Approach (MRLA) of Pakistan, or dis- and (4) demonstrating the applicability proposed here is crimination based of established employment discrimination one mechanism on color." The doctrine to diverse workplaces. for doing so. Given court was disturbed judges customarily admit empirical the traditional by the lack of a full- information through the use of expert presumption that r er record because witnesses, pursuant to Federal Rule of racial discrimina- it was unclear Evidence 702. judges have accepted the tion only exists whether a light- presentation of expert testimony on the when a white- skinned Pakistani deployment of racial stereotypes in the Anglo person is who "is darker in workplace in order to disabuse fact-finders 15 present as an insti- complexion than of what they believe is "common sense." gator or victim, this those commonly In Walker v. State, a law professor pro- proposed approach termed white in vided expert testimony on behalf of an would require the United States" African-American state trooper alleging 6 plaintiffs to provide warrants (pro- discriminatory discharge.' The testimo- more detailed pleadings in the vein of a itected class status" under the McDonnell ny, based on research in the literature of "Brandeis brief," i.e., one in which eco- Douglas prima facie evidentiary standards. racial stereotyping, explained how the nomic and sociat surveys and studies are The court explicitly stated: content of the performance evaluations included along with explications of the was rooted in racial stereotyping. Expert law. Expert witnesses on the subject of Suffice it to note that the presump- testimony in interethnic discrimination interethnic bias will need to be brought tion of a protected class status on the cases would be especially useful in delin- in and depositions will need to be more basis of color is bound up with an eating how various populations of color expansive in approach. By more fully entire national racial history. It may racialize themselves by subgyrou)p and developing the record, fact-finders will well be that there are indigenous other grouips as -well. be better able to see beyond the veil of discriminatory practices around the In cases where litigants do not proffer a diverse workplace as a presumed racial world having nothing to do with the emnpirical evidence themselves, a grow- utopia. This approach will, thus, rein- the American experience. However, force for courts how established employ- there is no basis on this record for ment discrimination doctrines may b the recognition of skin color as a applicable to the context of interethnic presumptive discriminatory criterion discrimination. (rooted one wvould suppose, in the One court has already anticipated the intermingling of dfistinctive iiational need for a fuller record wvith social science or racial grouips) in employment in data and expert witnesses in interethnic Pak-istan, or amongc Pakistanis in discrimination cases. In All v. NationaCI- New York, under lMcDonnell Douglas B3ank of Pakistan,'14 a self-des;cribed lighI-t. guidelines.

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HeinOnline -- 49 Judges J. 35 2010 bar this third use of social science in law, cal context presented by the plaintiff. to appropriately enforce our nation's civil thereby allowing a court to admit empiri- Retumning then to the paradigmatic rights laws within diverse workplaces. cal information "to kecep it responsive to its Latino interethnic discrimination case, changing environment."1 1 the plaintiff needed to explicitly present exploredi in my previ- Fortunately, the admission of empirical the documentation of how racial privilege 1. This topic is more fully ously published article Latino inter-Ethnic Employment evidence to create a social framework is not and bias generally exist in non-white Discrimination and the "Diversty-" Defense, 42 HA.RV. contravened by the trial court gatekeeper contexts. With that background empiri- Civ. R. Civ. LIB. L REv. 2 59 (2007). role envisioned in Daubert v. Meirelt Dow cal information, the plainitiff would then 2. Phillips v. Martin Marietta Corp, 400 U.S. Pharamaceuticals1 9 h ave been more 542 (1970). and its subsequent likely to persuade 3. See Tanya Katrn Hernandez, "Multiracial" Classifications of Color- the court to con- Discourse: Racial in an Era cases. This is Blind Jurisprudence, 57 Moi.L. Re-v. 97, 102 (1998) because the prof- sider the empirical (observing the growing societal belief that racial fered empirical data about Latino diversity will deconstruct anid transcend race evidence is sci - racial attitudes and racism). See also Pauilette M. Caldwell, The 5 MicH. J. RACE entifically valid, and their manifes- Content of Our Characterizations, the growing tation. The plain- & L. 53, 106 (1999) (discussing as indicated by scholarship that equates increasing racial diversity1 (1) its publication at tiffs submission of with the destruction of racism and the Black- in peer-reviewed expert testimony White paradigm of race).- joumnals, (2) its q regarding the long 4. Tanya Kateri Hernliinde7, Multir-acialMatrix: general acceptance legacy of anti- The Role of Race Ideology in the Eniforcement of Antidiscrimination Laws, a United States-Latin within the scholarly r iu, ira black bias against America Comparison, 87 CORNELL L. REV. 1093, disciplines of soci- A f ro - La t ino s 11t21-22 (2002). ology and politi- within Latin 5. See, e.g., TATcHO MINDIOLA JR. ET AL., cal science, and America would BLACK-BROWN RELATIoNs AND STEREO~TYPES 35 (3) its relevance have dispelled (2002). See also CAMILLE ZUBRINSKY CHARLES, WoN'T You Be MYNEIGHBOR? RACE, CLASS, AND to employment the inclination RESIDENCE IN Los ANGELES 161 (2006) (describ- discrimination to view Latinos ing- the results from the 1992-1994 Los Angyeles case issues of cul- as homogeneous Survey of Urban Inequality). r V f, tural stereotyping. and interchange- 6. Ironically, the judge sue sponte converted Furthermore, the able. In turn, the the case into a color discrimination case and disruption of the allowed the color claim to survive the summary MRLA requires judgment motion. Yet this is an unsatisfactory no modification of presumption of assessment of Latino interethnic discrimination existing legal standards for proving indi- Latino homogeneity would have elimi- claims because not all Latino plaintiffs have dark vidual disparate treatment discrimination. nated the rationalization that "diversity in skin or prominent African features as markers of This is because apparent workplace diver- an employer's staff undercuts an inference their social treatment. For those Latino plaintiffs whose African ancestry is not readily discernible, not alter any of the preexisting of discriminatory intent." And established sity does it is important to examine a workplace environ- legal standards for proving discrimination employment discrimination doctrine ment for the deployment of racial stereotypes tied as articulated in McDonnell v. Douglas would not have been overlooked. to national origin status that is part and parcel and its progeny.20 As the Supreme Court In conclusion, because of the long of Latino racial discourse. Indeed, a review of has stated, "a racially balanced work force legacy of black-white racism in the United Latiiiu colui discrinmination ilaini, demounstrates that such claimis are more typically v-iewed as cannot immunize an employer from liabil- States, discussion of race has rightfully 21 vable by jud'ges primarily wvhen a Latino plaintiff ity for specific acts of discrimination." focused on the black-white paradigm of allegyes color discrimination.- at the hands of a The MRLA would simply provide needed U.S. race relations and its effects on civil wVNhiteAngylo employer or supervisor. See Tanya context for the standard Title VII proof rights enforcement. Bu-t the changing Katrn Hem~ndez, Latirios at WVork: When Color' DisriinaioInoles or Th olr, in RHADT.Y, in diverse workplaces. Plaintiffs must still demographics of the United States means show how the alleged facts amount to that we need to expand the analysis of discrimination but will do so by focus- racism to include considerations of how 22 ing on cultural and historical context. groups of color can be complicit and Defendants will still have the same even active agents in the discrimination opportunity for rebuttal by proffering a against other groups of color. By supply- -nondiscriminatoty reason for the chal- ing judges with the empirical information lenged employment decision, in addition they need to better apprehend that racial to providing expert witnesses of their own bias can exist even within multiracial regarding the relevant cultural and histori- workplace settings, we can acti-vely Work

36 360 Vol. 49 No. 4 HeinOnline -- 49 Judges J. 36 2010 7. 430 U.S. 482, 496-97 (1976). 18. E.F. Roberts, Preliminary Notes Toward a sufficient for a plaintiff merely to show that the 8. See DAVID BALDUS & JAMES COLE, THE Study of Judicial Notice, 52 CoRNELL L.Q. 210, employer's proffer of a nondiscriminatory reason STATISTICAL PROOF OF DISCRIMIINATION (1987); 210 (1967). was "unbelievable." See Reeves v. Sanderson RAMONA L. PAETZOLD & STrEVEFNL. WILBORN, 19. 509 U.S. 579 (1993). Plumbing, 530 U.S. 133 (2000); see also Sr. NMary's THE STATISTICS OF DISCRIMINATION (1994); 20. 411 U.S. 792 (1973). A plaintiff can estab- Honor Crr. v. Hicks, 509 U.S. 502 (1993). JOSEPH GASTWIRTH, STATISTICAL REASONING IN lish a prima facie inference of discrimination by 21. Furnco Constr. Corp. v. Waters, 438 U.S. LAW AND PUBLIC POLICY (1988). showing that he or she is a member of a protected 567, 579 (1978). 9. 431 U.S. 324, 339 n.20 (1977). group (race, sex, etc.) and was rejected afrer apply- 22. WIlhile the MRLA recommends that litiga- 10. McDonnell Douglas v. Green, 411 U.S. 792, ing for a job or promotion for which he or she was tors provide a more extensive narrative in their 805 (1977). qualified, and that afrer rejecting the plaintiff the pleadings to include data about interethnic racial 11. 400 U.S. 542 (1970). employer continued to seek applications from animus in order to counteract the diversiry defense, 12. See NICHOLAS DE GENOVA & ANA Y. persons of plaintiffs qualifications. The employer the MRLA does not abrogate Federal Rule of RAMOS-ZAYAS, LATINO CROSSINGS: MEXICANS, can rebut the prima facie showing of discrimina- Civil Procedure 8(a)(2). Because the MRLA is PUERTO RICANS, AND THE POLITICS OF RACE AND tion by proffering a nondiscriminatory reason for a suggested framework for litigation, it does nor CITIZENSHIP 214 (2003) (describing how intra- the employment decision. Thereafrer the burden interfere with that rule's simple mandate for a Latino divisions seem "always to be entrenched shifts back to the plaintiff to present either further "short and plain statement of the claim showing in tile hegelllnic denigrationl of African- evidence of discriminatory intent or evidence that the pleader is entitled to relief." FED. R. Civ. Americans" and blackness). that the defendant's proffered nondiscriminatory P. 8(a)(2). Indeed, the Supreme Court has explic- 13. It should be noted that the jurisprudential justification was actually a pretext for discrimina- itly rejected a heightened pleading requirement for problem with Latino interethniC discrimination tion. The elements of the prima facie case may be employment discrimination cases because it would cases identified in this Article is also subject to modified to suit varying factual patterns beyond conflict with this rule. See Swierkiewicz v. Sorema all the preexisting concerns that many schol- the hiring and promotion context. But it is nor N.A., 534 U.S. 506, 512 (2002). ars have described regarding the growing limi- rations on proving employment discrimination cases. See, e.g., F. Christi Cunningham, The Rise of Identity Politics 1: The Myth of the Protected Class in Title VII Disparate Treatment Cases, 30 CONN. L. REV. 441 (1998) (stating that district court "reluctance to apply the Supreme Court's formation of the prima facie case suggests a dis- comfort with the explicit recognition of historical disadvantage that the prima facie presumption entails"); Samuel L. Gaertner er al., Aversive Racism: Bias Without Intention, in HANDBOOK OF EMPLOYMENT DISCRIMINATION RESEARCH: RIGHTS AND REALITIES 377, 393 (Laura Beth Nielsen & Robert L. Nelson eds., 2005) (concluding that Title VII needs to be reformed to better address in- group favoritism as a form of discrimination); Linda Hamilton Krieger, The Content of Our Categories: A Cognitive Bias Approach to Discrimination and Equal Employment Opportunity, 47 STAN. L. REv. 1161 (1995); Susan Sturm, Second Generation Employment Discrimination: A Structural Approach, 101 COLUM. L. REv. 458 (2001). 14. 508 F. Supp. 611t (S.D.N.Y. 1981) (Title VII color discrimination disparate treatment case). 15. KENT SPRIGGS, REPRESENTING PLAINTIFFS IN TITLE VII ACTIONS 14-28, § 17.03[31[gj (2d ed. Supp. 2005). 16. No. EV 8712-C (S.D. Ind. Jan. 21, 1987). 17. Legal scholars Laurens Walker and John Mnahan desc-ribe thep rocess ofr,fcnrtina

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