Wednesday, April 5, 2006

Hernandez on Latino Inter-Ethnic Discrimination

Zhernandez_1 Tanya Hernandez (Rutgers-Newark) has posted on the bepress Legal Repository: Latino Inter-Ethnic Discrimination and the "Diversity Defense."

From the abstract:

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.

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.

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.

You can download this highly interesting and thought-provoking article here.


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