Exceptional Proff 602

Employment Discrimination in the Ethnically Diverse Workplace Hernández, Tanya Katerí . The Judges' Journal ; Chicago  Vol. 49, Iss. 4,  (Fall 2010): 33-37.

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ABSTRACT 10 There was no suggestion that workforce statistics could have an exculpatory use. [...] in Phillips v. Martin

Marietta Corp.\n18 Fortunately, the admission of empirical evidence to create a social framework is not

contravened by the trial court gatekeeper role envisioned in Dauben v. Merrell Dow Pharamaceiiticals19 and its

subsequent cases. [...] 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. FULL TEXT Racial integration has long been the touchstone of racial progress in the workplace. But integration is only the

beginning of the struggle to end racial discrimination. As workplaces become more diverse, they do not necessarily

become less racially discriminatory. Diverse workplaces may be characterized by antagonism between people of

different races. Interethnic 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.1 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 racebased 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 plaintiffs protected group.2 Yet, when the context is

contemporary interethnic discrimination, the emerging cases suggest that some courts are so viscerally

impressed by the vision of a presumably diverse workplace that they miss the applicability of this precedent and

instead construct what I term a makeshift "diversity defense" to discrimination.

The diversity defense describes the way in which legal actors automatically view racially "diverse" workplaces as

the equivalent of racially harmonious ones. This equivalence effectively treats all people of color as the same and

overlooks the histories of racial animus within 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.3 Unfortunately, diversity alone cannot eradicate racial discrimination.

The majority of interethnic employment discrimination claims that are starting to appear are those in which

Latinos are involved as victims or as agents of individual disparate treatment discrimination in the workplace.

Accordingly, it is important to note that racism, and in particular anti-black racism, is a pervasive and historically

entrenched fact of life in Latin America and the Caribbean. Over 90 percent of the approximately 10 million

enslaved Africans brought to the Americas were taken to Latin America and the Caribbean, whereas only 4.6

percent were brought to the United States. In Latin America and the Caribbean, as in the United States, lighter skin

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and European features can increase one's chances for socioeconomic advancement, while darker skin and African

or indigenous features may limit opportunities for social mobility.4 Attitudes of bias are also well established

within the Latino community. Sociological studies of Latino racial attitudes often reflect a preference on the part of

Latinos for maintaining social distance from African Americans. And while the social distance level is largest for

recent Latin- American immigrants, more established communities of Latinos in the United States are also

characterized by their social distance from African Americans.5

Consider a paradigmatic case that demonstrates the analytical problems surfacing in the emerging interethnic

discrimination cases. A self-identified Afro-Panamanian tutor of Spanish sued his university employer for failure to

renew his appointment as an adjunct instructor, claiming a violation of Title VII's prohibition against race and

national origin discrimination. The plaintiff alleged that the Latinos who directed the department where he worked

discriminated against "Black Hispanics," and that there was a disturbing culture of favoritism in promoting white

Cubans, Spaniards, and white Hispanics from South America. The court, not understanding that a color hierarchy

informs the ways in which many Latinos experience the racism and national origin bias of other Latinos, dismissed

his racial discrimination claim on summary judgment.6 The national origin claim was also dismissed on summary

judgment, because five of the eight adjunct instructors that were reappointed instead of the plaintiff were natives

of other South or Central American countries such as Argentina, Peru, Mexico, and the Dominican Republic. The

surviving discrimination claim that went before the jury, which was based on color, was weakened by the absence

of information as to how color bias may be a manifestation of racism in Latino cultures, and the jury returned a

verdict in favor of the defendant. The judge explicitly stated in the opinion that "Diversity in an employer's staff

undercuts an inference of discriminatory intent."

This decision embodies a number of serious legal and factual errors. To begin with, the notion that diversity in the

workplace disproves bias runs entirely counter to a significant line of Supreme Court decisions explaining the

proper use, and nonuse, of statistical information about diversity. The rules of statistical inference and its

evidentiary use were incorporated into the jurisprudence of employment discrimination under Castañeda v.

Partida,1 In its decision there, the Supreme Court explained that statistically significant measures showing a lack

of workplace diversity may constitute evidence of discrimination.8 But that doesn't work in reverse: the presence

of statistical diversity in the workplace (more precisely, the absence of statistical evidence of a lack of diversity)

cannot be equated with the absence of discrimination itself. This is so because, as the Supreme Court noted in

Teamsters v. United States,9 population statistics have been traditionally considered relevant to Title VII cases

only in the context of statistically significant, gross underrepresentations of racial minorities, since our racial

history has shown that, in the absence of any other explanation, it is more likely than not that racial discrimination

accounts for the underrepresentation.

Indeed, workforce statistics were first approved for use in individual disparate treatment cases only insofar as they

"may be helpful to a determination of whether petitioner's refusal to hire respondent conformed to a general

pattern of discrimination."10 There was no suggestion that workforce statistics could have an exculpatory use.

Moreover, in Phillips v. Martin Marietta Corp.,11 the Court rejected the notion that diversity (a proportionate

representation of the plaintiffs protected class in the workplace) was absolute proof that no discrimination was

present.

The finding that there was no discrimination on the basis of national origin in our case is perhaps even more

erroneous because it overlooks afirmly established fact of Latino life. Its treatment of Latino ethnic subgroups as

interchangeable and homogeneous is the equivalent of treating immigrants from Nigeria, Egypt, and South Africa

as racially homogeneous. As in Africa, the continent of Latin America contains vast differences in racial

composition and bias. Those countries perceived or touted as European are viewed as more advanced than those

more significantly populated with people of indigenous or African descent. Thus, in the list of countries the judge

mentioned in finding an absence of national origin bias, Latin American racial constructs would rank Argentina as

a highly valued white country, followed by Peru, then Mexico with its indigenous population. Least respected would

be the Dominican Republic and the plaintiffs own country of origin, Panama, because of their dominance by

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Africandescended peoples.

For Latinos influenced by Latin American racial paradigms where each country has a racial identification, a diverse

workforce of Latinos is not the immediate equivalent of a bias-free context. Nor is a color preference divorced from

a racialized ideology within the Latino context,12 Diversity means something more nuanced to people of color, who

tend not to view each ethnic group as the same as another simply because it is non-white. Yet the public discourse

about diversity as a panacea for racial discrimination overlooks the complexity of actual diversity. In a diverse

workplace there is the possibility for racial harmony, but there is also the possibility for a racial dystopia. What the

emerging cases suggest is that, unlike with traditional blackwhite employment discrimination cases, interethnic

discrimination cases require a broader inquiry, one that will reveal how bias is manifested in multiethnic contexts.

Demographers project that one in four job seekers will be the child of a Latino immigrant by the year 2020 and that

Latino workers will vastly increase their representation in the workforce. The nature of the racial ideology that

pervades Latino communities is thus relevant to the emerging interethnic discrimination cases.

A Proposal for a "Multiracial Racism" Approach

The growing number of Latino workers, and the biases that they often bring to the workplace, presents major

challenges to the employment discrimination regime under Title VII. One of these challenges lies in the collection

and presentation of information about the existence of bias within Latino subgroups.

A fuller record of interethnic racial animus is needed to add nuance to the jurisprudence of antidiscrimination so

that the multiethnic workplace becomes less opaque to fact-finders and legal actors can identify the new markers

of racial discrimination.13 The Multiracial Racism Litigation Approach (MRLA) proposed here is one mechanism

for doing so. Given the traditional presumption that racial discrimination only exists when a whiteAnglo person is

present as an instigator or victim, this proposed approach would require plaintiffs to provide more detailed

pleadings in the vein of a "Brandéis brief," i.e., one in which economic and social surveys and studies are included

along with explications of the law. Expert witnesses on the subject of interethnic bias will need to be brought in

and depositions will need to be more expansive in approach. By more fully developing the record, fact-finders will

be better able to see beyond the veil of a diverse workplace as a presumed racial utopia. This approach will, thus,

reinforce for courts how established employment discrimination doctrines may be applicable to the context of

interethnic discrimination.

One court has already anticipated the need for a fuller record with social science data and expert witnesses in

interethnic discrimination cases. In AH v. National Bank of Pakistan,14 a self-described lightskinned Pakistani

citizen from the province of Punjab employed at the National Bank of Pakistan's New York branch alleged that the

bank discriminated against him in favor of darker-skinned Pakistani citizens from the province of Sind. In

dismissing the plaintiffs claim, the court noted that, while a number of light-skinned employees predominated in

the less highly paid job positions, it was problematic that no "evidence by way of expert testimony or treatise was

presented with respect to color differences among the various provinces of Pakistan, or discrimination based on

color." The court was disturbed by the lack of a fuller record because it was unclear whether a lightskinned

Pakistani who "is darker in complexion than those commonly termed white in the United States" warrants

"protected class status" under the McDonnell Douglas prima facie evidentiary standards. The court explicitly

stated:

Suffice it to note that the presumption of a protected class status on the basis of color is bound up with an entire

national racial history. It may well be that there are indigenous discriminatory 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 would suppose, in the intermingling of distinctive

national or racial groups) in employment in Pakistan, or among Pakistanis in New York, under McDonnell Douglas

guidelines.

In short, the judge is asserting that when Title VII cases implicate racial meanings beyond what is commonly

expected in the U.S. setting, a fuller record about those meanings must be established in order for the existing

legal doctrine to be applied effectively. And that is exactly why the MRLA proposed herein should be more

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systematically applied.

The goal of the MRLA is to contextualize allegations of interethnic discrimination by (1) establishing the premise

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

and disadvantaged employees among the diverse non-white workers, (3) providing the social science data about

the relevant racial attitudes, and (4) demonstrating the applicability of established employment discrimination

doctrine to diverse workplaces.

Judges customarily admit empirical information through the use of expert witnesses, pursuant to Federal Rule of

Evidence 702. Judges have accepted the presentation of expert testimony on the deployment of racial stereotypes

in the workplace in order to disabuse fact-finders of what they believe is "common sense."15 In Walker v. State, a

law professor provided expert testimony on behalf of an African- American state trooper alleging discriminatory

discharge.16 The testimony, based on research in the literature of racial stereotyping, explained how the content of

the performance evaluations was rooted in racial stereotyping. Expert testimony in interethnic discrimination

cases would be especially useful in delineating how various populations of color racialize themselves by subgroup

and other groups as well.

In cases where litigants do not proffer the empirical evidence themselves, a growing number of courts have held

that the use of social frameworks to correct beliefs that are erroneous does indeed assist the trier of fact and can

accordingly be admitted under Federal Rule of Evidence 201 's judicial notice provision.17 While this is a form of

judicial notice that involves neither legislative facts nor adjudicative facts as contemplated in Federal Rule of

Evidence 201, the Federal Rules do not bar this third use of social science in law, thereby allowing a court to admit

empirical information "to keep it responsive to its changing environment."18

Fortunately, the admission of empirical evidence to create a social framework is not contravened by the trial court

gatekeeper role envisioned in Dauben v. Merrell Dow Pharamaceiiticals19 and its subsequent cases. This is

because the proffered empirical evidence is scientifically valid, as indicated by (1) its publication in peer-reviewed

journals, (2) its general acceptance within the scholarly disciplines of sociology and politi(3) its relevance to

employment discrimination case issues of cultural stereotyping. Furthermore, the MRLA requires no modification

of existing legal standards for proving individual disparate treatment discrimination. This is because apparent

workplace diversity does not alter any of the preexisting legal standards for proving discrimination as articulated in

McDonnell v. Douglas and its progeny.20 As the Supreme Court has stated, "a racially balanced work force cannot

immunize an employer from liability for specific acts of discrimination."21 The MRLA would simply provide needed

context for the standard Title VII proof in diverse workplaces. Plaintiffs must still show how the alleged facts

amount to discrimination but will do so by focusing on cultural and historical context.22 Defendants will still have

the same opportunity for rebuttal by proffering a nondiscriminatory reason for the challenged employment

decision, in addition to providing expert witnesses of their own regarding the relevant cultural and historical

context presented by the plaintiff.

Returning then to the paradigmatic Latino interethnic discrimination case, the plaintiff needed to explicitly present

the documentation of how racial privilege and bias generally exist in non-white contexts. With that background

empirical information, the plaintiff would then have been more likely to persuade the court to consider the

empirical data about Latino racial attitudes and their manifestation. The plaintiffs submission of expert testimony

regarding the long legacy of antiblack bias against Afro -Latinos within Latin America would have dispelled the

inclination to view Latinos as homogeneous and interchangeable. In turn, the disruption of the presumption of

Latino homogeneity would have eliminated the rationalization that "diversity in an employer's staff undercuts an

inference of discriminatory intent." And established employment discrimination doctrine would 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. But

the changing demographics of the United States means that 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 discrimination against other

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groups of color. By supplying judges with the empirical information they need to better apprehend that racial bias

can exist even within multiracial workplace settings, we can actively work to appropriately enforce our nation's civil

rights laws within diverse workplaces.

Sidebar

A fuller record of interethnic racial animus is needed to add nuance to the jurisprudence of antidiscrimination.

Sidebar

By supplying judges with empirical information showing racial bias in multiracial workplace settings, we can work

to enforce civil rights laws within diverse workplaces.

Footnote

Endnotes

1. This topic is more fully explored in my previously published article Latino Inter 'Ethnic Employment

Discrimination and the "Diversity" Defense, 42 HARV. Qv. R. Qv. LIB. L REV. 259 (2007).

2. Phillips v. Martin Marietta Corp, 400 U.S. 542(1970).

3. See Tanya Katerí Hernández, "Multiracial" Discotase: Racial Classifications in an Era of Color'

Blindjurisprudence, 57 MD. L. REV. 97, 102 (1998) (observing the growing societal belief that racial diversity will

deconstruct and transcend race and racism). See also Paulette M. Caldwell, The Content of Our Characterizations,

5 MICH. J. RACE &L. 53, 106 (1999) (discussing the growing scholarship that equates increasing racial diversity

with the destruction of racism and the BlackWhite paradigm of race).

4. Tanya Katerí Hernández, Multiracial Matrix: The Role of Race Ideology in the Enforcement of Antidiscrimination

Laws, a United Slates-Latin America Comparison, 87 CORNELL L. REV. 1093, 1121-22(2002).

5. See, e.g., TATCHO MINDIOLA JR. ET AL., BLACK-BROWN RELATIONS AND STEREOTYPES 35 (2002). See also

CAMILLE ZUBRINSKY CHARLES, WON'T You BE MY NEIGHBOR? RACE, CLASS, AND RESIDENCE IN Los ANGELES

161 (2006) (describing the results from the 1992-1994 Los Angeles Survey of Urban Inequality).

6. Ironically, the judge sua sponte converted the case into a color discrimination case and allowed the color claim

to survive the summary judgment morion. Yet this is an unsatisfactory assessment of Latino interethnic

discrimination claims because not all Latino plaintiffs have dark skin or prominent African features as markers of

their social treatment. For those Latino plaintiffs whose African ancestry is not readily discernible, it is important

to examine a workplace environment for the deployment of racial stereotypes tied to national origin status that is

part and parcel of Latino racial discourse. Indeed, a review of Latino color discrimination claims demonstrates that

such claims are more typically viewed as viable by judges primarily when a Latino plaintiff alleges color

discrimination at the hands of a white Anglo employer or supervisor. See Tanya Katerí Hernández, Latinos at Work:

When Color Discrimination Involves More Than Color, in SHADES OF DIFFERENCE: WHY SKIN QILOR MATTERS

236 (Evelyn Nakano Glenn ed., 2009) (noting that in the absence of a stark White-Anglo versus Latino narrative of

color discrimination judges are less able to detect the existence of color discrimination). Unfortunately for the

plaintiff, the jury trial on the color discrimination issue returned a verdict in favor of the defendant. Such a result

was inevitable once the judge handicapped the jury's assessment of the issues by entering summary judgment on

the racial and national origin discrimination claims.

7. 430 U.S. 482, 496-97 (1976).

8. See DAVID BALDUS &JAMES COLE, THE STATISTICAL PROOF OF DISCRIMINATION (1987); RAMONA L.

PAETZOLD &STEVEN 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, 41 1 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 intraLatino divisions seem "always to be

entrenched in the hegemonic denigration of AfricanAmericans" and blackness).

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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 scholars have described regarding the growing

limitations on proving employment discrimination cases. See, e.g., E. Christi Cunningham, The Rise of Identity

Politics 1: The Myth of the Protected Class in Tide VIl 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

discomfort with the explicit recognition of historical disadvantage that the prima facie presumption entails");

Samuel L. Gaertner et al., Aversi« 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 ingroup 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. 611 (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[3][g] (2d ed. Supp. 2005).

16. No. EV 87-12-C (S.D. Ind. Jan. 21, 1987).

17. Legal scholars Laurens Walker and John Monahan describe the process of constructing a social framework for

a case as the admission of empirical information to construct a frame of reference for deciding factual issues.

They define social framework as "the use of general conclusions from social science research in determining

factual issues in a specific case." Laurens Walker &John Monahan, Social Frameworks: A New Use of Social

Science in Law, 73 VA. L. REV. 559, 570 (1987) (defining social framework as "the use of general conclusions from

social science research in determining factual issues in a specific case").

18. E.F. Roberts, Preliminary Notes Toward a Study of judicial Notice, 52 CORNELL LQ. 210, 210(1967).

19. 509 U.S. 579(1993).

20. 411 U.S. 792 (1973). A plaintiff can establish a prima facie inference of discrimination by showing that he or

she is a member of a protected group (race, sex, etc.) and was rejected after applying for a job or promotion for

which he or she was qualified, and that after rejecting the plaintiff the employer continued to seek applications

from persons of plaintiffs qualifications. The employer can rebut the prima facie showing of discrimination by

proffering a nondiscriminatory reason for the employment decision. Thereafter the burden shifts back to the

plaintiff to present either further evidence of discriminatory intent or evidence that the defendant's proffered

nondiscriminatory justification was actually a pretext for discrimination. The elements of the prima facie case may

be modified to suit varying factual patterns beyond the hiring and promotion context. But it is not sufficient for a

plaintiff merely to show that the employer's proffer of a nondiscriminatory reason was "unbelievable." See Reeves

v. Sanderson Plumbing, 530 U.S. 133 (2000); see also St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993).

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

22. While the MRLA recommends that litigators provide a more extensive narrative in their pleadings to include

data about interethnic racial animus in order to counteract the diversity defense, the MRLA does not abrogate

Federal Rule of Civil Procedure 8(a)(2). Because the MRLA is a suggested framework for litigation, it does not

interfere with that rule's simple mandate for a "short and plain statement of the claim showing that the pleader is

entitled to relief." FED. R. Civ. P. 8(a)(2). Indeed, the Supreme Court has explicitly rejected a heightened pleading

requirement for employment discrimination cases because it would conflict with this rule. See Swierkiewicz v.

Sorema N.A., 534 U.S. 506, 5 12 (2002).

AuthorAffiliation

Tanya Katerí Hernández 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].

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Subject: Employment discrimination; Racial discrimination; Workplace diversity; Federal court

decisions; Racism; Civil rights; Race relations; Hispanic Americans; Evidence; African

Americans; Multiculturalism &pluralism

Publication title: The Judges' Journal; Chicago

Volume: 49

Issue: 4

Pages: 33-37

Number of pages: 5

Publication year: 2010

Publication date: Fall 2010

Publisher: American Bar Association

Place of publication: Chicago

Country of publication: United States, Chicago

Publication subject: Law

ISSN: 00472972

Source type: Scholarly Journals

Language of publication: English

Document type: Feature

ProQuest document ID: 810633707

Document URL: https://search.proquest.com/docview/810633707?accountid=8289

Copyright: Copyright American Bar Association Fall 2010

Last updated: 2010-11-25

Database: ProQuest Central

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