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 will continue to be necessary but will become even more complex. The growing 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 individuated context of racial and ethnic discrimination claims. In other words, what will anti-discrimination litigation look like when all the parties involved are non-White but a racial hierarchy is alleged to exist nonetheless, and the plaintiffs are not necessarily interested in the group politics agenda of coalition building.

At the present time, the majority of inter-ethnic employment discrimination claims that appear in the electronic databases of Westlaw and Lexis appear to be those in which Latinos are involved alternatively as victims and as agents of discrimination in the workplace. Latinos are thus the focus of this exploration of inter-ethnic discrimination. This focus on Latinos is supported by demographic projections that one in four job seekers will be the child of a Latino immigrant by the year 2020 and that Latino workers will increase their representation in the workforce from the current rate of 12% to 25% by the year 2050. Furthermore, as the fastest growing ethnic/racial minority in the U.S., Latinos have been celebrated in the public discourse as a multiracial people impervious to racial discrimination. Examining the context of Latino bias may thus have much to tell us about the ability of legal actors to adequately recognize and articulate the harm of inter-ethnic discrimination claims before a judiciary primarily steeped in an understanding of discrimination as solely a Black/White phenomenon.

Section I of this Article will present the literature that explicates the complexity of Latino racial attitudes that is currently under-appreciated by many jurists. Section II will then analyze the emerging Latino inter-ethnic employment discrimination cases. The cases demonstrate a judicial inability to understand racial discrimination when it occurs in an inter-ethnic context. Furthermore, judges in these cases are inappropriately creating what this Article terms the Diversity Defense to discrimination allegations. The Diversity Defense describes the way in which legal actors view a racially diverse workplace as the equivalent of a racially harmonious workplace. This equivalence is implemented by viewing people of color as all the same, and overlooking the particular histories of racial animus within and across different ethnic groups. Section III therefore proposes that legal actors begin to address the particular litigation needs of inter-ethnic claims through a theory of functional racism. The Functional Racism Theory that the Article proposes is designed to enable decision makers to more effectively identify the occurrence of discrimination in inter-ethnic contexts.


Civil Rights and Discrimination | Labor and Employment Law

Date of this Version

March 2006