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2010

Employment Discrimination in the Ethnically Diverse Workplace Employment Discrimination in the Ethnically Diverse Workplace

Tanya K. Hernandez Fordham University School of Law, thernandez@law.fordham.edu

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Part of the Civil Rights and Discrimination Commons, and the Labor and Employment Law Commons

Recommended Citation 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 thetouchstone of racial progress in the

0 workplace. But integration is only the

beginning of the struggle to end racial dis-crimination. As workplaces become more

diverse, they do nor necessarily becomie lessracially discriminatory. Diverse workplacesmay be characterized by antagonism

between people ofdifferent races. Interethnicdiscrimination may exist along side the dis-

crimination that has traditionally occurredbetween blacks and whites, i.e., non-whiteracial and ethnic groups may engage in dis-

parate-treatment employment discrimina-tion actionable under Title VII of the 1964Civil Rights Act.' Examples of interethnicdiscrimination occur among members of

different ethnic subgroups, as when PuertoRicans allegedly discriminate againstMexican-Americans or Dominicans, or

white Latinos allegedly discriminate againstAfro-Latinos. In reality, then, there aremany ways that non-white ethnic groupsand subgroups can be complicit in race-based decision making in the workplace.

In the emerging interethnic discrimina-tion cases, workplace diversity has beenviewed as something of a safe harbor from

charges of discrimination. This view existsdespite established Supreme Court prec-

edent to the contrary. Early in the history

of Title VII, the Supreme Court rejectedthe premise that no question of bias couldbe present if a workplace has many mem-

bers from a plaintiff's protected grouIp.2

Yet, when the context is contemporaryinterethnic discrimination, the emerging

cases suggest that some courts are so viscer-ally impressed by the vision of a presum-ably diverse workplace that they miss theapplicability of this precedent and insteadconstruct what I term a makeshift "diver-sity defense" to discrimination.

The diversity defense describes the

equivalent of racially harmonious ones.This equivalence effectively treats all

people of color as the same and over-

looks the histories of racial animus with-

in and across different ethnic groups.The judicial fashioning of a diversity

defense to employment discrimination

appears to reflect wishful thinking that

diversity is a panacea for racial conflict.'

Unfortunately, diversity alone cannoteradicate racial discriminaition.

The majority of interethnic employo-

ment discrimination claims that are start-ing to appear are those in which Latinos

are involved as victims or as agents of

individual disparate treatment discrimi-nation in the workplace. Accordingly, it

is important to note that racisma, and in

particular anti-black racism, is a pervasiveand historically entrenched fact of life inLatin America and the Caribbean. Over

90 percent of the approximately 10 nmil-

lion enslaved Africans brought to the

Americas were taken to Latin America

and the Caribbean, whereas only 4.6 per-cent were brought to the United States.In Latin America and the Caribbean,as in the United States, lighter skin andEuropean features can increase one's

chances for socioeconomic advancement,

while darker skin and African or indig-enous features may limit opportunitiesfor social mobility.4 Attitudes of bias are

also well established within the Latino

community. Sociological studies of Latinoracial attitudes often reflect a preferenceon the part of Latinos for maintainingsocial distance from African Americans.And wvhile the social distance level is larg-

est for recent Latin-American immigrants,more established communities of Latinos

in the United States are also character-

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ized by their social distance from AfricanAmericans.'

Consider a paradigmatic case thatdeimoistrates the analytical problemssurfacing in the emerging interethnicdiscrimination cases. A self-identifiedAfro-Panamanian tutor of Spanish suedhis university employer for failure torenew his appointment as an adjunctinstructor, claimingy a violation of TitleVII's prohibition against race and nation-al origin discrimination. The plaintiffalleged that the Latinos who directedthe department where he worked dis-criminated against "Black Hispanics,"and that there was a disturbing cultureof favoritism in promoting white Cubans,Spaniards, and white Hispanics fromSouth America. The court. not under-standing that a color hierarchy informsthe ways in which many Latinos experi-ence the racism and national origin biasof othler Latinos, dismissed his racialdiscrimination claim on summary judg-menit.6 The national origin claim was alsodismiissed on summary judgment, becausefive of the eight adjunct instructors thatwere reappointed instead of the plaintiffwere natives of other South or CentralAmerican countries such as Argentina,Peru, Mexico, and the DominicanRepublic. The surviving discriminationclaim that went before the jury, whichwas based on color, was weakened by theabsence of information as to how colorbias may be a manifestation of racism inLatino cultures, and the jury returned averdict in favor of the defendant. The

Tay dKtr Hrn de is professorof law, Fordham University School of Law,and 2010-2011 visiting research scholar,Princeton University Program in Law andPublic Affairs. She may be reached atProfessorTKH@gmail.com.

judge explicitly stated int the opinion that"Diversity in an employer'sstaff undercutsan inference of discrim 1tina to(ry intent."

This decision embodies a number ofserious legal and factual errors. To beginwith, the notion that dive rsity in the work-place disproves bias ruins entirely counterto a significant line of' Supreme Courtdecisions explaining the pr-oper use, andnonuse, of statistical iniformnation aboutdiversity. The rules of statistical inferenceand its evidentiary use were incorporatedinto the jurisprudence of employment dis-crimination under Castaveda v. Partida.1

In its decision there, the Supreme Courtexplained that statistically significantmeasures showing a lack of workplacediversity may constitute evidence of dis-crimination.' But that doesn't work inreverse: the presence of statistical diver-sity in the workplace (mnore precisely, theabsence of statistical evidence of a lackof diversity) cannot be equated with theabsence of discrimination itself. This isso because, as the Supreme Court notedin Teamsters v. United States,' populationstatistics have been traditionally consid-ered relevant to Title VII cases only in thecontext of statistically significant, grossunderrepresentations of racial minorities,since our racial history has shown that, inthe absence of any other explanation, it ismore likely than nor that racial discrimina-tion accounts for the underrepresentation.

Indeed, workforce statistics were firstapproved for use in individual disparatetreatment cases only insofar as they "maybe helpful to a determination of whetherpetitioner's refusal to hire respondentconformed to a general pattern of discrim-ination." 10 There was no suggestion thatworkforce statistics could have an excul-patory use. Moreover, in Phillips v. Martin

Marietta Corp.," the Court rejected the

the equivalent of treating immiigrants fromNigeria, Egypt, and South Africai as raciallyhomogYeneous. As in Africa, thec con-tinentof Latin America contains va,,st differenc-es in racial composition and biais. Thosecountries perceived or touted as Europeanare v:iewed as more adIvanced than thosemore significantly populated with peopleof indigyenous or African descenr. Thus, inthe list of countries the judg(.e imentioned infinding an absence of national origin bias,Latin American racial constructs wouldrank Argentina as a highly v'alued whitecountry. followed by Peru, then Mexico withits indigyenous population. Leaist respectedwould be the Dominican Republic and theplaintiffs own country of origin, Panama,because of their dominance by African-descended peoples.

For Latinos influenced by LatinAmerican racial paradigms where eachcountry has a racial identification, a diverseworkforce of Latinos is not the immediateequivalent of a bias-free context. Nor isa color preference divorced from a racial-

izdielgy within the Latino context. 2

Diversity mecans something more nuancedto people of color, who tend not to vieweach ethnic group as the same as anothersimply because it is non-white. Yet thepublic discourse about diversity as a pana-cea for racial discrimination overlooks thecomplexity of actual diversity. In a diverseworkplace there is the possibility for racialharmony, but there is also the possibility fora racial dystopia. What the emerging casessuggest is that, unlike with traditional black-white employment discrimination cases,interethnic discrimination cases require abroader inquiry, one that will reveal howbias is manifested in multiethnic conitexts.

Demogc)raphers project that one infour job seekers will1 be the child of aLatinio immiigrant by the year 2020 andthat- Tiowreswlvatyicae

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the workplace, presents major challengesto the employment discrimination regimeunder Title VII. One of these challengeslies in the collection and presentation uf

information about the existence of biaswithin Latino subgroups.

A fuller record of interethnic racial

animus is needed to add nuance to the

jurisprudence of antidiscrimination so

that the multiethnic workplace becomesless opaque tofact-finders andlegal actors canidentify the newmarkers of racialdiscrimination. 13

The MultiracialRacism LitigationApproach (MRLA)proposed here isone mechanismfor doing so. Giventhe traditionalpresumption thatracial discrimina-tion only existswhen a white-Anglo person ispresent as an insti-gator or victim, thisproposed approachwould requireplaintiffs to provide

r

more detailed pleadings in the vein of a"Brandeis brief," i.e., one in which eco-nomic and sociat surveys and studies are

included along with explications of thelaw. Expert witnesses on the subject of

interethnic bias will need to be brought

in and depositions will need to be moreexpansive in approach. By more fully

developing the record, fact-finders willbe better able to see beyond the veil of

a diverse workplace as a presumed racialutopia. This approach will, thus, rein-force for courts how established employ-

ment discrimination doctrines may bapplicable to the context of interethnic

discrimination.One court has already anticipated the

need for a fuller record wvith social sciencedata and expert witnesses in interethnic

discrimination cases. In All v. NationaCI-

B3ank of Pakistan,'14 a self-des;cribed lighI-t.

skinned Pakistani citizen from the prov-ince of Punjab employed at the National

Bank of Pakistan's New York branch

alleged that the bank discriminatedagainst him in favor of darker-skinnedPakistani citizens from the province of

Sind. In dismissing the plaintiffs claim,

the court noted that, while a number oflight-skinned employees predominated inthe less highly paid job positions, it was

problematic thatno "evidence byway of expert tes-timonv or treatisewas presented with

c respect to color dif-ferences among the

1 various provincesof Pakistan, or dis-crimination basedon color." Thecourt was disturbedby the lack of a full-er record becauseit was unclearwhether a light-skinned Pakistaniwho "is darker incomplexion thanthose commonlytermed white inthe United States"warrants (pro-

itected class status" under the McDonnellDouglas prima facie evidentiary standards.The court explicitly stated:

Suffice it to note that the presump-tion of a protected class status on the

basis of color is bound up with anentire national racial history. It maywell be that there are indigenousdiscriminatory practices around the

world having nothing to do with

the American experience. However,there is no basis on this record for

the recognition of skin color as a

presumptive discriminatory criterion

(rooted one wvould suppose, in theintermingling of dfistinctive iiationalor racial grouips) in employment in

Pak-istan, or amongc Pakistanis in

New York, under lMcDonnell Douglas

guidelines.

In short, the judge is asserting thatwhen Title VII cases implicate ra.,cial

meanings beyond what is commonly

expected in the U.S. setting, a fuller recordabout those meanings must be establishedin order for the existing legal doctrine to

be applied effectively. And that is exaictlywhy the MRLA proposed herein shoutdbe more systematically applied.

The goal of the MRLA is to contextu-

alize allegations of interethnic discrimina-tion by (1) establishing the premise that

interethnic hierarchy and bias may exist,(2) focusing the inquiry on whether there

were racially advantaged and disadvantagedemployees among the diverse non-whiteworkers, (3) providing the social sciencedata about the relevant racial attitudes,and (4) demonstrating the applicabilityof established employment discriminationdoctrine to diverse workplaces.

judges customarily admit empiricalinformation through the use of expert

witnesses, pursuant to Federal Rule ofEvidence 702. judges have accepted thepresentation of expert testimony on the

deployment of racial stereotypes in theworkplace in order to disabuse fact-findersof what they believe is "common sense."15

In Walker v. State, a law professor pro-vided expert testimony on behalf of anAfrican-American state trooper alleging

discriminatory discharge.' 6 The testimo-ny, based on research in the literature of

racial stereotyping, explained how the

content of the performance evaluationswas rooted in racial stereotyping. Experttestimony in interethnic discriminationcases would be especially useful in delin-eating how various populations of colorracialize themselves by subgyrou)p and

other grouips as -well.In cases where litigants do not proffer

the emnpirical evidence themselves, a grow-

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bar this third use of social science in law,thereby allowing a court to admit empiri-

cal information "to kecep it responsive to itschanging environment."1 1

Fortunately, the admission of empiricalevidence to create a social framework is not

contravened by the trial court gatekeeperrole envisioned in Daubert v. Meirelt Dow

Pharamaceuticals 1 9

and its subsequentcases. This isbecause the prof-fered empiricalevidence is sci -

entifically valid,as indicated by(1) its publicationin peer-reviewed

joumnals, (2) itsgeneral acceptancewithin the scholarlydisciplines of soci-ology and politi-cal science, and(3) its relevanceto employmentdiscriminationcase issues of cul-tural stereotyping.Furthermore, theMRLA requiresno modification ofexisting legal standards for proving indi-vidual disparate treatment discrimination.This is because apparent workplace diver-sity does not alter any of the preexistinglegal standards for proving discriminationas articulated in McDonnell v. Douglas

and its progeny.20 As the Supreme Courthas stated, "a racially balanced work forcecannot immunize an employer from liabil-ity for specific acts of discrimination." 21

The MRLA would simply provide neededcontext for the standard Title VII proofin diverse workplaces. Plaintiffs must stillshow how the alleged facts amount to

discrimination but will do so by focus-ing on cultural and historical context. 22

Defendants will still have the same

opportunity for rebuttal by proffering a

-nondiscriminatoty reason for the chal-lenged employment decision, in additionto providing expert witnesses of their own

regarding the relevant cultural and histori-

cal context presented by the plaintiff.

Retumning then to the paradigmaticLatino interethnic discrimination case,

the plaintiff needed to explicitly present

the documentation of how racial privilegeand bias generally exist in non-white

contexts. With that background empiri-cal information, the plainitiff would then

h ave been more

likely to persuadethe court to con-sider the empiricaldata about Latinoracial attitudesand their manifes-tation. The plain-tiffs submission ofexpert testimonyregarding the longlegacy of anti-black bias againstA f ro - La t ino swithin LatinAmerica wouldhave dispelledthe inclinationto view Latinosas homogeneousand interchange-able. In turn, thedisruption of thepresumption ofwould have elimi-Latino homogeneity

nated the rationalization that "diversity in

an employer's staff undercuts an inference

of discriminatory intent." And establishedemployment discrimination doctrinewould not have been overlooked.

In conclusion, because of the long

legacy of black-white racism in the United

States, discussion of race has rightfully

focused on the black-white paradigm of

U.S. race relations and its effects on civil

rights enforcement. Bu-t the changing

demographics of the United States meansthat we need to expand the analysis of

racism to include considerations of how

groups of color can be complicit and

even active agents in the discriminationagainst other groups of color. By supply-ing judges with the empirical informationthey need to better apprehend that racial

bias can exist even within multiracial

workplace settings, we can acti-vely Work

to appropriately enforce our nation's civil

rights laws within diverse workplaces.

1. This topic is more fully exploredi in my previ-ously published article Latino inter-Ethnic EmploymentDiscrimination and the "Diversty-" Defense, 42 HA.RV.

Civ. R. Civ. LIB. L REv. 2 59 (2007).2. Phillips v. Martin Marietta Corp, 400 U.S.

542 (1970).3. See Tanya Katrn Hernandez, "Multiracial"

Discourse: Racial Classifications in an Era of Color-Blind Jurisprudence, 57 Moi. L. Re-v. 97, 102 (1998)(observing the growing societal belief that racialdiversity will deconstruct anid transcend raceand racism). See also Pauilette M. Caldwell, TheContent of Our Characterizations, 5 MicH. J. RACE

& L. 53, 106 (1999) (discussing the growingscholarship that equates increasing racial diversity1with the destruction of racism and the Black-White paradigm of race).-

4. Tanya Kateri Hernliinde7, Multir-acial Matrix:The Role of Race Ideology in the Eniforcementof Antidiscrimination Laws, a United States-LatinAmerica Comparison, 87 CORNELL L. REV. 1093,11t21-22 (2002).

5. See, e.g., TATcHO MINDIOLA JR. ET AL.,

BLACK-BROWN RELATIoNs AND STEREO~TYPES 35(2002). See also CAMILLE ZUBRINSKY CHARLES,

WoN'T You Be MYNEIGHBOR? RACE, CLASS, AND

RESIDENCE IN Los ANGELES 161 (2006) (describ-ing- the results from the 1992-1994 Los AngyelesSurvey of Urban Inequality).

6. Ironically, the judge sue sponte convertedthe case into a color discrimination case andallowed the color claim to survive the summaryjudgment motion. Yet this is an unsatisfactoryassessment of Latino interethnic discriminationclaims because not all Latino plaintiffs have darkskin or prominent African features as markers oftheir social treatment. For those Latino plaintiffswhose African ancestry is not readily discernible,it is important to examine a workplace environ-ment for the deployment of racial stereotypes tiedto national origin status that is part and parcelof Latino racial discourse. Indeed, a review ofLatiiiu colui discrinmination ilaini, demounstratesthat such claimis are more typically v-iewed asvable by jud'ges primarily wvhen a Latino plaintiff

allegyes color discrimination.- at the hands of awVNhite Angylo employer or supervisor. See TanyaKatrn Hem~ndez, Latirios at WVork: When Color'

Disriinaio Inoles or Th olr , in RHADT.Y,

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7. 430 U.S. 482, 496-97 (1976).8. See DAVID BALDUS & JAMES COLE, THE

STATISTICAL PROOF OF DISCRIMIINATION (1987);RAMONA L. PAETZOLD & STrEVEFN L. WILBORN,

THE STATISTICS OF DISCRIMINATION (1994);JOSEPH GASTWIRTH, STATISTICAL REASONING IN

LAW AND PUBLIC POLICY (1988).9. 431 U.S. 324, 339 n.20 (1977).

10. McDonnell Douglas v. Green, 411 U.S. 792,805 (1977).

11. 400 U.S. 542 (1970).12. See NICHOLAS DE GENOVA & ANA Y.

RAMOS-ZAYAS, LATINO CROSSINGS: MEXICANS,

PUERTO RICANS, AND THE POLITICS OF RACE AND

CITIZENSHIP 214 (2003) (describing how intra-Latino divisions seem "always to be entrenched

in tile hegelllnic denigrationl of African-Americans" and blackness).

13. It should be noted that the jurisprudential

problem with Latino interethniC discrimination

cases identified in this Article is also subject to

all the preexisting concerns that many schol-ars have described regarding the growing limi-rations on proving employment discriminationcases. See, e.g., F. Christi Cunningham, The Riseof Identity Politics 1: The Myth of the ProtectedClass in Title VII Disparate Treatment Cases, 30CONN. L. REV. 441 (1998) (stating that districtcourt "reluctance to apply the Supreme Court'sformation of the prima facie case suggests a dis-comfort with the explicit recognition of historicaldisadvantage that the prima facie presumptionentails"); Samuel L. Gaertner er al., AversiveRacism: Bias Without Intention, in HANDBOOK OF

EMPLOYMENT DISCRIMINATION RESEARCH: RIGHTS

AND REALITIES 377, 393 (Laura Beth Nielsen &Robert L. Nelson eds., 2005) (concluding thatTitle VII needs to be reformed to better address in-group favoritism as a form of discrimination); LindaHamilton Krieger, The Content of Our Categories:A Cognitive Bias Approach to Discrimination andEqual Employment Opportunity, 47 STAN. L. REv.

1161 (1995); Susan Sturm, Second GenerationEmployment Discrimination: A Structural Approach,101 COLUM. L. REv. 458 (2001).

14. 508 F. Supp. 611t (S.D.N.Y. 1981) (Title VIIcolor discrimination disparate treatment case).

15. KENT SPRIGGS, REPRESENTING PLAINTIFFS

IN TITLE VII ACTIONS 14-28, § 17.03[31[gj (2ded. 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

18. E.F. Roberts, Preliminary Notes Toward aStudy of Judicial Notice, 52 CoRNELL L.Q. 210,210 (1967).

19. 509 U.S. 579 (1993).20. 411 U.S. 792 (1973). A plaintiff can estab-

lish a prima facie inference of discrimination byshowing that he or she is a member of a protectedgroup (race, sex, etc.) and was rejected afrer apply-ing for a job or promotion for which he or she wasqualified, and that afrer rejecting the plaintiff theemployer continued to seek applications frompersons of plaintiffs qualifications. The employercan rebut the prima facie showing of discrimina-tion by proffering a nondiscriminatory reason forthe employment decision. Thereafrer the burdenshifts back to the plaintiff to present either furtherevidence of discriminatory intent or evidencethat the defendant's proffered nondiscriminatoryjustification was actually a pretext for discrimina-tion. The elements of the prima facie case may bemodified to suit varying factual patterns beyondthe hiring and promotion context. But it is nor

sufficient for a plaintiff merely to show that theemployer's proffer of a nondiscriminatory reasonwas "unbelievable." See Reeves v. SandersonPlumbing, 530 U.S. 133 (2000); see also Sr. NMary'sHonor Crr. v. Hicks, 509 U.S. 502 (1993).

21. Furnco Constr. Corp. v. Waters, 438 U.S.567, 579 (1978).

22. WIlhile the MRLA recommends that litiga-tors provide a more extensive narrative in theirpleadings to include data about interethnic racialanimus in order to counteract the diversiry defense,the MRLA does not abrogate Federal Rule ofCivil Procedure 8(a)(2). Because the MRLA isa suggested framework for litigation, it does norinterfere with that rule's simple mandate for a"short and plain statement of the claim showingthat the pleader is entitled to relief." FED. R. Civ.P. 8(a)(2). Indeed, the Supreme Court has explic-itly rejected a heightened pleading requirement foremployment discrimination cases because it wouldconflict with this rule. See Swierkiewicz v. SoremaN.A., 534 U.S. 506, 512 (2002).

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