CHAPTER 3
Popular culture often depicts “diverse” workplace settings as racial utopias where people of all races and ethnicities happily coexist. For instance, the Golden Globe Award–winning television show Brooklyn Nine-Nine, which aired from 2013 to 2021, depicted its New York City Black, Latino, and White fellow police officers as free of any racial acrimony. Like so many other media portrayals, it did not delve into the quotidian realities of racial coexistence that occur across a much more complex spectrum. At the same time, such romanticized media depictions (mis)inform our societal conceptions of what racial diversity truly means.
In contrast, legal narratives of what individuals experience and perceive when racial conflict occurs provide a picture grounded in the complexity and messiness of actual diverse contexts. What the stories reveal with regard to Latinos, is that anti-Blackness is an ongoing phenomenon that adversely affects Afro-Latinos, African Americans, and Africans alike, even against a richly diverse landscape where interracial cooperation exists simultaneously with racial conflict. The stories that these legal claimants tell have much to teach us about the complexity of racially diverse Latino workplaces.
Edward Olumuyiwa, a Nigerian American and a Brooklyn resident, was hired as a security guard with Harvard Protection Services, a company based in New York City that provides security services to corporate clients. Unbeknownst to Edward, at that time a racialized wage structure existed at the company where Latino and Yugoslavian employees received 50 percent more than Edward and the African American security guards. In addition, the company also gave the Latino and Yugoslavian workers more favorable work shifts and hours.1
However, Edward learned of the racial hierarchy only after having become the target of racial harassment from his Latino supervisor, Jason Ortiz. The racial bias was evident because supervisor Ortiz directly stated that he did not like Edward because he was Nigerian. His campaign of racial harassment included the overtly discriminatory remarks: “Why is your Black ass sleeping here?! I am going to deduct two hours pay from your Black-ass paycheck!” and “We Hispanics run this office!” The racially inflammatory comments were accompanied by actions that sought to demean Edward further.
While Harvard Protection had a general policy of having a supervisor appear at a job site only once per night, supervisor Ortiz showed up at Edward’s job site approximately six times and harassed him with the taunt “I’m going to catch you!” Moreover, Edward was required to work longer hours than any other security guard employed by Harvard Protection. On at least ten occasions, he was directed to work sixteen consecutive hours. Even when Edward advised Vice President Camacho that he had a heart condition and needed four days off to have surgery, Camacho flatly denied the request. In fact, the harassment was condoned by the Latino-dominant management at the security company and its Latino vice president, Ron Camacho.
Only after filing a discrimination claim in court was Edward able to successfully reach a settlement agreement to address his adverse treatment. Indeed, the Latino anti-Black discrimination cases that are most frequently resolved in favor of the Black complainant (whether they be Afro-Latino, Afro-Caribbean, African American, or an African immigrant) are cases like Edward’s in which there is clear preferential treatment of Latino employees at the expense of identifiable Black employees who are demeaned, in addition to cases of overt anti-Black racial harassment and intentionally unfavorable treatment.2
Nonetheless, the virulence of Latino anti-Black statements can be particularly violent when aimed at Afro-Latinos in particular, because the epithets are often delivered in a double dose of both Spanish and English. Afro-Latino Eloy Cruz had such a bilingual attacker when he was a warehouse manager at a company in Hialeah Gardens, a city in Florida’s Miami-Dade County. Sales manager Jorge Fernández was the Latino who made it his mission to repeatedly berate Eloy with a barrage of racially hostile terms: “n——r,” “stupid n——r,” “Head N——r in Charge,” “spigger” (short form for “spic n——r”), “negro” (n——r), “negro estupido” (stupid n——r), “negro maricon” (gay n——r), and “negro mierda” (shitty n——r).3 Adding to the racially hostile environment were Fernández’s threats to physically harm Eloy and make his job “hell,” ultimately resulting in Eloy being fired. Like Edward Olumuyiwa, Eloy was able to successfully obtain a settlement agreement to resolve his lawsuit.
In the antidiscrimination law context, civil rights lawyers view settlement agreements to be a success. This is because the vast majority of racial discrimination claims are dismissed by courts without the opportunity for a trial.4 From 1979 through 2006, federal claimants won only 15 percent of job discrimination cases. By comparison, in all other civil cases, the win rate was 51 percent.5 Commentators attribute the low success rate to the growing hostility with which courts approach allegations of discrimination.6 Courts seemingly believe that the passage of civil rights laws alone has wrought a post-racial society in which instances of intentional discrimination are rare. As a result, when a judge refrains from dismissing a racial discrimination claim as legally insufficient on its face, lawyers understand it as if “a judge has given quasi-approval to the complainant’s case,” which in turn facilitates the legal parties to reach a settlement agreement.7 This is why settlement agreements are often understood as “wins” for the complainant in racial discrimination cases.
Unfortunately, not every tale of racist conduct within Latino-dominant workplaces like Edward Olumuyiwa’s is successfully resolved by the judicial system.8 Many instances of discrimination never even reach a judge. In fact, economists have documented that Latino managers often refrain from hiring African Americans at rates similar to those of White non-Hispanic managers.9
Nor are Latinos more receptive to African ancestry when an Afro-Latino employee seeks advancement in Latino-dominated workplaces. What follows is José Arrocha’s story of the challenges Afro-Latinos can encounter in Latino workplaces. Like Edward, José Arrocha lived and worked in New York City and as a dark-skinned Afro-Panamanian felt similarly excluded by his Latino superiors.
José worked for two years as an adjunct instructor for City University of New York Medgar Evers College campus (MEC) in the Spanish language program of its Languages, Literature, and Philosophy Department. After having been reappointed as an adjunct instructor three semesters in a row, José’s contract was not renewed after he received a single lukewarm review from the departmental evaluator, Professor Iraida Lopez.10 Despite having been rated as satisfactory (3 on a 1–5 scale) during prior performance evaluations, Professor Lopez lowered his rating to 2.5 and stated:
The one-hour class I observed covered too much material. . . . Students need to play a more active role. A more creative use of the exercises should be made to challenge students & encourage them to use language in an active way. The instructor relies on the textbook explanation and exercises.
Based on this dubious commentary from a single hour of class observation, José’s contract was not renewed. Given the sparseness of the basis for José’s termination, he was upset and disturbed to discover that the eight instructors who were reappointed instead of him were White. In José’s view it reflected “a disturbing culture of favoritism that favor[ed] the appointments of White Cubans, Spaniards and White Hispanics from South America, . . . [with] the use of an evaluation process used to discredit my work and exclude me from the Spanish faculty only because I am Black. Medgar Evers does not have a Black professor of Spanish because of the blatant racism of White Hispanics toward Black Hispanics. In my opinion, Black Hispanics do not have an equal opportunity to teach Spanish.” As a result, José filed a legal claim asserting that the Latino heads of the Medgar Evers College Spanish Department discriminated against Black Hispanics like himself.
However, unlike Edward Olumuyiwa, José was unable to persuade the court that his termination was the result of discrimination. While the disproportionate favoring of White Latino candidates over José based on observing a single one-hour class is quite suggestive of racialized decision-making, it held little weight with the judge.
José’s judge immediately rejected that possibility of discrimination because five of the eight adjunct instructors who were reappointed instead of José were natives of other South or Central American countries, such as Argentina, Peru, and Mexico, as well as the Dominican Republic. Simply because the college reappointed natives from other Latin American countries, the judge treated all Latinos as racially and ethnically interchangeable and thus incapable of discrimination against other Latinos. This is made starkly evident by the judge’s statement that “diversity in an employer’s staff undercuts an inference of discriminatory intent,” (emphasis added) presumably because in hiring many Latinos, the employer’s diverse hires manifest an egalitarian corporate culture. For whom exactly, though, was the Spanish Department a nonracialized “diverse” workplace?
Consider that this judicial equivalence was only possible by overlooking the ways in which Latino culture fuses a racialized hierarchy onto the list of Latin American and Caribbean nations. As discussed in chapter 1, countries perceived as European are viewed as more advanced than those more significantly populated with people of indigenous descent or those of African descent. In the list of countries the judge thought equivalent, Latin American racial constructs would rank Argentina as a highly valued White country, followed by Peru and Mexico with their indigenous populations, followed by the Dominican Republic and José’s own country of origin, Panama, because they are populated by more people of African descent.
Imbued into the racial taxonomy of Latin American countries are derogatory notions about the inadequacy of Afro-inflected Spanish. The closer a nation’s association with Whiteness, the more its inhabitants are presumed to speak a cultured and refined Spanish. As Frantz Fanon importantly noted, the subjects of postcolonial societies often wield language as a tool for imposing racial hierarchy.11 Fanon’s observations about the French-language racial pecking order in Martinique are just as salient to Latin American notions about “civilized,” proper Spanish-speaking nations. For José, the Spanish Department was its own postcolonial society looking down on the presumed “Black” origins of his Panamanian Spanish and in turn the legitimacy of his ability to teach others proper (White Castilian) Spanish.
To be sure, 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 color preference divorced from a racialized ideology within the Latino context. Thus when José specifically enumerated the Hispanic countries of origin from which the favored candidates emanated, it was as part of the story of how racial hierarchy played out in the workplace. However, for the judge, José’s Latino ethnicity erased his Black racial identity and the judge’s ability to see any racial difference among the various Latino candidates. The judge’s intuitions were seemingly validated by the absence of racial identification in the employees’ personnel files. Specifically, of the eight adjunct instructors that were reappointed, only one self-identified as White, while three others failed to supply any racial identification, another three characterized their race as “Hispanic,” and the final instructor said he was a Mexican with a brown skin color. In effect, the Latino disinclination to specify a race was allowed to act as a judicial veil around the particulars of Latino racial differentiation. As a result, the judge permitted the jury to assess only whether it was uniquely a skin-color discrimination case.
Yet, what was left for the jury to examine? The judge’s compartmentalized approach to assessing color, race, and ethnicity as independent dynamics misses how Latino racism is a deeply intertwined intersection of biases based upon color, race, and ethnicity. Pull apart the strands and the picture of how Latino racism operates is incomprehensible. With the search for visible skin-color gradations in the workplace decontextualized from any understanding of Latino racialized meanings, it is not at all surprising that José Arrocha failed to persuade the jury that his ostracism was an act of color discrimination.
In short, the existence of a so-called diverse Latino workplace operated as a veil around possible racial discrimination, despite Supreme Court case authority explicitly warning against the presumption that intra-ethnic and intraracial discrimination cannot exist.12 The Arrocha court instead mistakenly treated the panethnic identifier of Latino/Hispanic as precluding discrimination between various Latinos. Lawyering Latino anti-Black claims thus requires educating juries and judges about Latino racial attitudes.
Learning about the features of Latino anti-Black bias also necessitates a consideration of how racial bias can additionally manifest itself in a sexualized manner, in what has come to be called intersectional discrimination.13 Intersectional discrimination occurs when multiple sources of bias (such as race and gender) converge for a person as a single experience of discrimination with interactive stereotypes. As is often the case when African Americans are targeted for workplace harassment, Afro-Latinos are also victimized by other Latinos based upon racial stereotypes regarding the sexualized attributes of Blackness. The following two narratives illustrate how the racialization of the Black body is sexualized by Latinos.
Cruz Young, a banquet server at the Marriott Phoenix Airport hotel is an Afro-Dominican woman who fell into the vortex of intersectional Latino discrimination when coworker Jose Herrera began to harass her.14 Herrera made repeated references to Cruz as having a large butt and being a “fucking puta” (a prostitute or sexually wanton woman) with a “fucking N——r” for a boyfriend, all while forcibly touching her against her will. In this way, Herrera’s sexual-harassing conduct was fixated upon the Latino cultural objectification of the Black body. Latino literature, music lyrics, film, television, and public discourse all depict the Black body as the embodiment of sex and sexual prowess. Buttocks are not merely a body part when viewed on a Black body. They are sex itself. In turn, Juan Jones was not merely Cruz’s boyfriend but instead envisioned by Herrera as literally a “fucking N——r.”
The rest of Cruz’s Latino coworkers who witnessed the harassment and Cruz’s tears interpreted it through the Latino, racially sexualized lens of Herrera “wooing her or courting her.” Only in a Latino cultural context that equates Blackness with sexual availability and wantonness would a man who forcibly touched, grabbed, dragged, and verbally assaulted a woman as a racial object still be viewed as innocuously engaged in “courtship.” Indeed, when Cruz filed her claim of discrimination, her Latino manager, Raul Peña, referred to her as “that garbage” who should “go back to the Dominican Republic” (which Latinos characterize as a backward Black country).
Fortunately for Cruz, the judge assigned to her case was not persuaded to dismiss the case based upon the employer’s claim that the events were caused by a “personal dispute” rather than discrimination that continued unabated for the better part of a year, if not longer. While the judge did not explicitly refer to the discrimination as intersectional, he did use a nuanced analysis that considered both its gendered and its race-based aspects. After the judge noted that the employer’s explanation of a personal disagreement was “without merit,” a jury decided discrimination occurred and granted Cruz financial compensation. Such compensatory damages are designed to pay victims for out-of-pocket expenses caused by the discrimination (such as costs associated with a new job search or medical expenses) and compensate them for any emotional harm suffered (such as mental anguish, inconvenience, or loss of enjoyment of life).15
Afro-Latina women are not alone in being subject to Latino racialized sexual-harassment discrimination. Latino racial discourse also sexualizes Black male bodies based on their Blackness. Chris Bartholomew, an Afro-Caribbean, experienced that directly as the darkest of all the employees at the Martin Brower Company in Puerto Rico. After twelve years of employment at the company, during which time Chris worked his way up from warehouse worker to transportation supervisor, the arrival of two new upper-management supervisors radically altered Chris’s work environment.
Chris’s new supervisors were two “light-skinned men of Latin American origin,” named Loscar Mejía and Bismark Márquez, who immediately began calling Chris “Blackie.”16 Mejía and Márquez then launched a three-month campaign of racial abuse centrally focused on the presumed sexual attributes of Chris’s body, with references to his genitalia as “sausage,” “morcilla” (blood sausage), and the remark that he had “three legs” (given the presumed length of his penis). They compounded the verbal abuse with visually graphic emails and texts to Chris bound up in the racial stereotype of Black men as having large genitalia and being oversexed. One image included a large penis attacking a woman, with the label “Chris attack.” Another image depicted Chris as a sausage and another as Spiderman with a huge penis. Rather than being a worker worthy of respect, Mejía and Márquez reduced Chris to a racialized sexual object for their own entertainment. After the judge refused to dismiss the case and set it on track for a jury trial, the parties reached a private settlement and Chris was financially compensated for the harm he endured.
However, for some judges, just raising the issue of Latino anti-Black bias can be considered a racist act itself. When Maybell Webb, an African American title clerk in a predominantly White-Hispanic car dealership in Miami became concerned that her Latino supervisors seemed to be reprimanding her for being “rude” when Latino employees were not disciplined for their curt behavior, the judge refused to entertain her claim.17 The judge rejected outright Maybell’s concerns and the employer’s repeated use of the Spanish term la negra (the Black girl) in her presence, with the following warning to anyone who might file a similar interethnic racial discrimination claim:
Over the years, work environments have come to reflect our increasingly multi-cultural world. With the coming together of numerous diverse ethnicities and cultures in the common workplace, there are bound to be not only many instances of cultural harmony but also some occasions of cultural friction. . . . While this Court sincerely hopes that all employees of all cultures will choose to exercise common respect and courtesy, it cannot allow Title VII to be used as a sword by which one culture may achieve supremacy in the workplace over another—[by filing a discrimination claim!].
Even more striking is when organizations dedicated to addressing discrimination are themselves sites where Latino anti-Black bias is alleged, and courts are still disinclined to find the allegations credible. Maxine Sprott, an African American woman who worked as a deputy director of the New York City Housing Authority’s (NYCHA) Office of Equal Opportunity alleged that her Latina supervisor, office director Rosalind Reyes, harassed her with derogatory comments about her work performance despite Maxine repeatedly earning positive performance evaluation ratings like “good” and “very good.”18 Director Reyes insinuated that even though Maxine had attended several Equal Employment Opportunity Studies courses at Cornell University, she still did not have a grasp of the nature of her work as it related to identifying and investigating acts of discrimination. Each positive performance evaluation rating from Reyes was then followed with commentary about Maxine’s lack of leadership skills in her role as deputy director.
Even Maxine’s proposal that the office purchase multimedia instructional material on sexual harassment was not deemed by Reyes as a sufficient indicator of leadership initiative. The director also singularly harassed Maxine about her timesheets and excluded her from various office functions and meetings. When Maxine could no longer withstand the onslaught of derogatory commentary about her competence, she filed a claim of discrimination with the general manager of NYCHA. Exactly three days after Maxine filed her discrimination claim, Reyes submitted a performance evaluation that for the first time rated Maxine as “marginal,” and as a result, Maxine was denied a managerial merit salary increase.
Any expectations that Maxine might have had that working for a city Equal Opportunity division focused on addressing discrimination in public housing would be a more racially enlightened workplace were shredded when her employer not only failed to investigate her allegations but then retaliated against her for filing a discrimination claim. In fact, it was yet another Latino NYCHA official, its chairman Ruben Franco, that discriminatorily retaliated against Maxine. Specifically, when Maxine refused to accept NYCHA’s proposed terms for settling her discrimination claim regarding Reyes, Franco informed Maxine that she was being transferred to another office where her material responsibilities were diminished, and she was moved from a well-furnished private office into an open cubicle. This was yet another instance of retaliation for Maxine’s exercise of her right to assert her claim of discrimination. Only when Maxine filed suit in court was she able to reach a settlement agreement with NYCHA and receive financial compensation.
While any number of concerns may have influenced Maxine and her attorney to settle the case rather than move forward with a jury trial, one contributing factor could very well have been the great significance the judge placed upon office racial diversity as mitigating claims of discrimination. For the judge, it was immaterial that when chairman Franco transferred Maxine to an effectively lesser position in a cubicle, he simultaneously terminated two other African American female employees, all as part of his ostensible reorganization plan. Instead, the judge concluded that such facts failed to raise an inference of discrimination because “the new Director is an Hispanic woman. . . . There are now two deputy directors—one African-American and one Caucasian. . . . The remaining staff is comprised of twenty-four Hispanics, twenty-three African Americans, nine Caucasians, and one person categorized as ‘other.”’ Thus, the judge accorded a diverse Latino workplace and the supervisor’s Hispanic status great power to circumvent racism. Herein, then, is the judicial presumption that Latino coworkers in diverse workplaces cannot be bearers of racism.
Other workplace narratives seem to suggest that decision makers may instead read Latino anti-Blackness as instances of mere cultural misunderstanding. A report from a human resources director provides a helpful illustration:
I was called in because a small work team in a laboratory was not meeting deadlines on an important project. On the surface it looked like a time management issue to their supervisor when in fact, two Hispanic employees on the team had issues that were culturally rooted—one being Puerto Rican and the other being Dominican. Their issues were getting in the way of the team’s progress. While unfortunate and inaccurate, people who were working with and supervising these employees never thought something diversity-related was going on. It never came up on their radar screens because they saw both employees as “Hispanic.”19
This workplace case study illustrates two separate aspects of the opacity of interethnic disputes for decision makers. First, the supervisor concludes that the conflict is simply a mere personality conflict between two Latino employees because of the presumption that Latinos are a monolithic group. Then the human resources director, who is African American and asserts knowledge about the existence of intraracial bias within racial groups, is better able to appreciate that two Latinos from different ethnic subgroups can harbor group-based bias against one another. Yet even this human resources director presumes that the conflict is simply “culturally rooted” rather than informed by Latino racial ideology about the “inherent racial differences” between Puerto Ricans and Dominicans, rooted in Latino stereotyping of Puerto Rico as a “Whiter” island distinct from the Blackness of the Dominican Republic. Thus, even when a workplace HR office identifies interethnic conflicts, it is not necessarily schooled to appreciate that Latino “culture” is not divorced from Latino racism.
LATINO JUDGES
Some might attribute the confusion about Latino discrimination in legal cases to the fact that US judges and juries are typically not racially or ethnically diverse.20 Jury pools are created from voter registration lists and Department of Motor Vehicles records, which frequently do not parallel the racial diversity of any given city. In addition, the socioeconomic burden of missing work for jury service is not racially or ethnically proportionate.
Yet, Latino jurors and judges themselves can be equally confounded by allegations of Latino anti-Black discrimination when they presume that Latino workplaces are not as susceptible to racial discrimination because of the predominance of Latino employees. Latino cultural attitudes presume that racism is a North American phenomenon that is more exceptional in Latino contexts. This Latino juridical attitude is particularly evident in cases of discrimination filed in the US federal courts of Puerto Rico, where US federal antidiscrimination laws are applied to the US territory by a cadre of elite White Puerto Ricans. In the District of Puerto Rico’s (DPR) twenty-one-year history, there is not a single recorded instance of an Afro-Latino judge. One seventeen-year veteran employee of the DPR court system never saw a Black judge in the courthouse until an African American judge was flown in as a temporary visiting judge for a number of weeks.21 Afro-Latino employees are primarily men relegated to the hyper-masculinized law enforcement space as courthouse US marshals and court security officers (roles matching the Latino racial stereotyping of Black men as physically strong brutes).22
Consider the plight of Victor Omar Portugues-Santa, a self-identified Black Puerto Rican trying his best to tell his story of discrimination within the contemporary racial caste of the DPR.23 Victor was forced to contend with one Puerto Rican judge’s inappropriately oppressive demands for evidence of violent expressions of anti-Blackness (like a frozen picture of 1940s Jim Crow US racism) that could be deemed the equivalent of real racism. Before a trial could even be held, the judge dismissed Victor’s racial discrimination claim with the conclusion that he was not subjected to severe or pervasive racial harassment that materially altered the conditions of his employment, despite his compelling story of ill treatment.
Victor worked as the director of sales and marketing for beer and liquor with B. Fernandez Hermanos, Inc. (BFH), a distribution company that operates a wholesale facility in Bayamon, Puerto Rico. Victor’s primary responsibility was to market Anheuser-Busch beer products to the gay community in Puerto Rico with a “Bud Light Alternative” campaign. In fact, Victor initiated and brought the campaign to Puerto Rico.
As the only self-identified Black Puerto Rican among his peers, Victor was targeted with racialized commentary that focused on treating him as a racial inferior who had elevated himself beyond his proper station. The racial comments included being called “a White Black person” and “Black guy with a Mercedes Benz” and described as the “Black guy who parts his hair.” Within the Puerto Rican context, such phrases were meant to disparage Victor as a Black man inappropriately putting on the airs of a White racial superior. This racialized commentary was accompanied by exclusionary actions that Victor felt affected his work experience significantly.
After repeated requests, Victor was denied a laptop computer in contrast to all the other White directors who had one. Racial distinctions were also apparent in the refusal to permit Victor to hire a replacement for a departing staff member, in contrast to his White Latino counterparts who were allowed to hire additional support staff. The company also refused to permit Victor to attend a work convention in Las Vegas, Nevada, at the same time that they financed a White Latino coworker’s trip to the convention. Victor missed out on opportunities to apply for promotions because the company failed to publicly post the positions on the company bulletin boards and instead used racially exclusive, informal dissemination of the openings, which Victor did not have access to.
In four years at the company, Victor never received a performance evaluation or a salary increase. When the company decided to reorganize as part of a cost reduction plan, it terminated Victor’s position. Yet when Victor asked if he could be placed in another position at a lower salary, his request was rejected, and he was replaced with a White coworker instead. As such, Victor felt he was the victim of racial discrimination.
Antidiscrimination law certainly permits an employer to respond to such allegations and explain how its actions had legitimate nondiscriminatory justifications. Yet, a jury was never allowed the opportunity to assess the credibility of the allegations or the company’s justifications, simply because the presiding Latino judge, Francisco Besosa, rejected the sufficiency of Victor’s allegations altogether. The judge’s threshold for what could be deemed discriminatory was set so high that few if any claims would count as discrimination for legal purposes.
To begin with, Judge Besosa disdained the significance of the racialized commentary that victimized Victor, because Victor could not prove that any of his supervisors were present when the comments were made. However, established antidiscrimination law does not require that, in order to hold a company responsible for negligently permitting a racially hostile work environment, that the employee who used the racist language or was present to hear racist commentary must have been a supervisor.24 Once the misconduct is reported to the employer or otherwise made evident, the employer has a responsibility to investigate and address the discriminatory conduct.
Equally erroneous is Judge Besosa’s depiction of discrimination as manifested only when part of a violent context. The judge explicitly states, “While the language used might very well have embarrassed [Victor] Portugues, just as it may have been premised upon unsavory racial stereotypes, it was not overtly aggressive or excessively derogatory. The racial references were not combined with any physical activity.” As a result, Victor’s dismay at being denied a laptop computer in contrast to all the other White directors who had one is minimized by Judge Besosa as “a minor inconvenience.” Rather than easily discerning how the racially disparate treatment in the allocation of standard office equipment communicated an unequal status not warranted by job station, the judge instead scolds Victor for not explaining “why or how a laptop would have been of significant importance to him in his position.” Judge Besosa’s demand for “more” is also imposed on Victor’s observation that he was denied support staff, unlike other directors. In response, the judge chastises Victor for his failure to provide information as to why he needed the support staff.
Judge Besosa similarly excuses the employer for its failure to post job promotion opportunities on the company bulletin boards simply because the employee handbook says only that such job openings “may be posted on the bulletin boards” rather than “must be posted on the bulletin boards.” The racial exclusivity of the choice the company made for disseminating job openings was immaterial to the judge, despite the fact that established case law frowns upon word-of-mouth-style hiring practices that keep racial minorities unaware of job openings in nondiverse workplaces.25 It was also immaterial to the judge that Victor was denied the opportunity to attend a work conference in Nevada that a White coworker was allowed to attend, because on a prior occasion the company sent Victor to another convention. Here the possibility of racialized decision-making on one occasion is judicially deemed expunged by the existence of equal treatment on a prior occasion.
Finally, Judge Besosa never questions the company’s cost-reduction reorganization justification for terminating Victor, despite its refusal to consider keeping Victor on with his offer to remain working at a lower salary to help the company reduce its costs. In short, this judge viewed racial discrimination as so exceptional in contemporary Puerto Rico in comparison to the historical Jim Crow narrative of violent US segregation, that he set forth a higher threshold for proving discrimination than actually exists in mainland United States courts today.
The extremity of this judge’s perspective is further highlighted by how far removed it is from the US government agency model for assessing discrimination, formulated by the Equal Employment Opportunity Commission (EEOC). While EEOC guidelines are not laws that judges are obligated to follow, they are interpretive regulations that judges have long deferred to. In fact, in the same year that Victor’s judge would only accept evidence of “aggressive or excessively derogatory” language and physical violence as adequate proof of racial discrimination, the EEOC, in contrast, sued and successfully reached a financial settlement with a Puerto Rican furniture company whose store manager verbally taunted a sales associate about his dark color and questioned why he was “so Black.”26 As the government agency that articulates national guidelines for evaluating the validity of discrimination claims, the EEOC made no demand for evidence of physical violence. For the EEOC, the racialized commentary in the Puerto Rican furniture store was a sufficient indicator of a racially hostile environment warranting investigation and action.
Being out of step with the racial expertise of the EEOC is not limited to Latino judges operating within the US territory of Puerto Rico. Latino judges within the contiguous United States can be just as captured by the presumption that Latino anti-Black bias is exceptional, even in work environments riddled with anti-Black Spanish epithets and actions. A contemporary example out of Texas provides a useful illustration.
Michael Johnson worked as a carpenter for Pride Industries (a nonprofit social enterprise with the mission of creating jobs for people with disabilities) at its placement within the Fort Bliss US Army garrison in El Paso, Texas.27 During much of his time with Pride, he was the only African American carpenter at Fort Bliss. Michael’s supervisor, Juan Palomares, and many of his coworkers were Latinos, as would be expected in a city like El Paso, situated on the Rio Grande across the US-Mexico border from Ciudad Juárez. In El Paso, Latinos comprise 83 percent of the population.28
Although Michael was not a Spanish speaker, supervisor Palomares impressed upon Michael the racial hostility of the Spanish phrases “pinche mayate” and “pinche negro” (slang terms for “fucking n——r” and “fucking Black”), each time he hurled the epithets at him. In addition to frequently assaulting Michael with the Spanish anti-Black epithets, Palomares also violated the esteem-building company policy of only referring to employees by their names. For Palomares, Michael was not worthy of respect, and thus rather than addressing him by his proper name, Palomares called him “mijo.” (Mijo literally translates to “my son” but is more generally a Latino form of address that an adult uses with any child or for referring to a person of a lower status). Because Palomares singled Michael out with the gross Spanish informality of “mijo” while at the same time he mistreated him in the workplace, there was no ambiguity about the hostility of the address. Like the racially loaded use of the English term boy for referring to full-grown Black men, the Spanish mijo accords the same racial paternalism and disrespect in the workplace.
Palomares’s discriminatory actions included repeatedly withholding needed tools for Michael’s work, hiding paperwork for a promotion on two separate occasions, telling him to “shut up” when he asked for clarification of work meeting information delivered in Spanish, and berating him and no one else for working through lunch. The harassment Palomares modeled then escalated to coworkers repeatedly vandalizing Michael’s truck, stealing his personal phone and work truck keys, drilling a screw into his truck tire, and leaving a rifle magazine loaded with blanks on the bumper of his truck. Ultimately Michael was racially terrorized and forced out of working there.
Rather than allowing a jury to listen to all the evidence and render a decision, Judge Montalvo, the Latino presiding judge, dismissed the racial discrimination claim by ruling there was insufficient evidence of severe or pervasive harassment to present to a jury. In coming to this conclusion, Judge Montalvo usurped the role of the jury in assessing the facts. Instead, the judge unilaterally decided that the uses of Spanish-language racial epithets were “not in itself enough to establish a prima facie case of hostile work environment based on race.” He further concluded that the use of mijo held “little evidentiary weight of racial discrimination.” As a result, for Judge Montalvo all the physical instances of harassment were “not connected to racial discrimination.”
As White-presenting (non-Black appearing) Latinos, Judge Montalvo in El Paso and Judge Besosa in Puerto Rico have likely never had to contend with Latino anti-Black bias directly targeted at them. With Latino anti-Black bias as an abstraction rather than a lived experience, Latino expressions of anti-Black bias can be dismissed as inconsequential compared to US Anglo–instigated discrimination. Hence, Judge Besosa’s demand for evidence of physical assault before he would consider a workplace in Puerto Rico replete with racist language a racially hostile work environment.
For Judge Montalvo in El Paso, mijo simply means “my son,” a term of endearment with no further context needed. In turn, mayete is intellectually offensive but in and of itself not racially harassing. Despite fellow coworkers corroborating supervisor Palomares’s frequent use of the racial epithets, Judge Montalvo seemingly viewed them as not as demeaning as the English language N-word, and thus not as severe as discrimination instigated by US Anglos. In fact, Judge Montalvo’s presumption that no reasonable jury could find that Michael was the victim of racial discrimination ignored established law as if it applied only to US Anglo–instigated discrimination.
Judge Montalvo’s contravention of established law in Michael’s case was so significant that the EEOC made the unusual choice to submit an amicus curiae (friend of the court) brief to support Michael’s request to overturn Judge Montalvo’s dismissal of his case. Notably, the EEOC detailed both relevant court decisions that articulate the rule that frequent use of racial slurs is sufficient to create a severe or pervasive hostile work environment and Supreme Court precedent explaining that “context, inflection, tone of voice, local custom, and historical usage” of a word like boy can be evidence of racial animus.29 Unfortunately, neither Michael nor the EEOC were able to change Judge Montalvo’s mind.
Afro-Latinos who are unambiguously identifiable as Black do not find it so easy to dismiss the hostility of a workplace replete with Spanish racial name-calling. Nor can they disaggregate it from the informal address and hierarchy imbued in the word mijo uniquely directed at the one Black person at a job site victimized with differential treatment. As Cornel West insightfully states, “Race matters.”30 Unless non-Black-identified Latino judges take on the work of contending with the specifics of Latino anti-Black discrimination, they will be as prone as White non-Hispanic judges in misconstruing the import of Latino anti-Black bias.
SYSTEMIC EXCLUSION
Further aggravating the judicial incomprehension of discriminatory Latino workplaces is the structural racism of the labor market. This is because Latino anti-Black bias shows up not only as an expression of individual Latino racial attitudes but also in systemic structures of exclusion. For instance, in 2016 Latino employees of a Chicago-based nationwide job placement agency described how their Latino supervisors trained them to exclude African American applicants from job placements in favor of Latino applicants.31 They were instructed to automatically reject African American applicants because of the stereotype that they were not capable of working as hard as Latinos. The lawsuit, which settled in March 2020, details how dispatchers who nevertheless sent African American job seekers to a company would later be reprimanded by their Latino bosses for doing so.32
The placement agency would start the day by separating Latino job applicants from African Americans. They would enter the Latino applicants’ contact information into a database so they could be easily reached when jobs opened up. African American applicants rarely received the same treatment. Instead, Black applicants were usually instructed to go to the agency office at dawn to wait for assignments that rarely came. One agency dispatcher noted, “If it was 10 Mexicans that would come at 1:30 p.m., and 25 African Americans that were there at 4:30 a.m. and were waiting to be sent to work, they would send the Mexicans first.”33 This Latino-run employment agency effectively ensured a secondary racial-caste system of Latinos over Blacks in an already-segregated Chicago-area labor market that privileges White non-Hispanics.
Equally problematic are the toxic effects of Latino anti-Black sentiment in the labor market when Latino business ownership dominates a particular industry and geographic area. Antonio Rodriguez was a man of Spanish ancestry who had been in the automobile business for thirty-eight years, employing close to four- to five-hundred employees in the ten automobile dealerships he owned in Fresno, California. Given his influence in the market, the local automobile industry was quite aware of his blanket refusal to hire Black people during all his decades of owning automobile dealerships. As one area sales manager stated, “It was so well known that Rodriguez did not hire the brothers that it was a joke.”34 African American applicants were repeatedly turned away, refused application forms, and lied to about the nonexistence of actual open job slots. Even Black applicants with superlative track records as proven high-volume salespersons were turned away without any consideration because of the Rodriguez-mandated embargo on Black hires. Rodriguez preferred the racial exclusivity of his company over his own financial self-interest.
Within Rodriguez’s staff, the fact that the dealerships did not hire Blacks was openly discussed at sales meetings, where the N-word was used often to describe African Americans, along with the threat that any staff member who hired a Black person would be fired as a result. When a Rodriguez manager was demoted and then discharged in retaliation for opposing the established Rodriguez company policy of denying all Black people jobs, the Equal Employment Opportunity Commission (EEOC) investigated and filed a case to address the pattern and practice of systemic discrimination against Black people.
The EEOC amassed a significant amount of evidence about the owner’s stated policy of not hiring African Americans as salespersons and his promotion of a racially hostile environment. The evidence included testimony regarding racist commentary at the workplace that Rodriguez condoned, such as “I don’t care how good that N——r is, he will never work here.” Sales meetings often contained verbal references to “N——rs.” Other racially disparaging terms included “sand N——r,” “large lips,” “fucking N——rs,” “hey buckwheat,” “hey boy,” “I-be,” and “we-bes.” The latter two terms were understood among the employees as a way to refer to stereotyped Black speech as in “I be doing this” and “we be doing that.”
There was also testimony that other dark-skinned ethnic group members would only be hired upon demonstrating they were not African American. An East Indian applicant whose skin color was unfavorably contrasted against a dark-colored desk, a company test for acceptable skin color, was told that the managers might still be able to hire him because he was Indian and not African American. Similarly, a dark-skinned Mexican salesperson was saved from being fired by a manager who thought he was Black when another manager explained, “It’s OK, he’s not Black, he’s Mexican.”
Yet, despite the wealth of evidence demonstrating the company’s discriminatory practices, Rodriguez asserted a Latino culturally framed defense that he could not be “prejudiced” against African Americans because he had been the subject of discrimination himself as a person descended from Spanish ancestors. Presumably his own ethnic heritage exposed him to racism and thereby inoculated him against being racist himself. Rodriguez was counting on the judge to accord significant weight to the notion of racialized groups being interchangeable (and the presumption that his family origin from Spain would be viewed as Hispanic). Absent the EEOC’s meticulous investigation, judicial inattention to the White Latino sleight of hand veiling the operation of White privilege behind a presumption of Latino racial homogeneity could very well have resulted in a miscarriage of justice.35
Fortunately, the judge was more impressed with how “numerous witnesses, Black, White, Hispanic, male, female old, young, formerly employed, presently employed, managers and supervisors, and rank and file, testified credibly concerning their knowledge of statements and discriminatory conduct against Afro-Americans by management officials of defendant Rodriguez’ dealerships.”36 The judge concluded at trial that Rodriguez was liable for the discrimination of his company, and thereafter the parties reached a settlement agreement. While the “I’m a Latino Who Can’t Be Prejudiced” defense ultimately failed in this case amid the significant EEOC evidence of discrimination, Rodriguez’s decision to assert his own ethnic diversity as a defense highlights the potential for continued misapplication of Latino racial innocence discourse in employment discrimination litigation if not properly identified and opposed. Indeed, Latino community organizers strongly believe that it is practically impossible to persuade a judge that racial discrimination against Latino workers supervised by Latino supervisors can occur.37 Their intuition is strongly validated by the instances in which judges immediately equate the presence of Latino supervisors and managers as definitive proof that no discrimination has occurred.38
LABOR MARKET SKIN-COLOR HIERARCHIES
Further aggravating the systemic effects of Latino anti-Blackness in the workplace is the manner in which it intersects perniciously with the overarching skin-color and race bias of the labor market, in which employers prefer hiring lighter-skinned Latinos to the exclusion of Afro-Latinos and African Americans.39 This is the case even where all the job applicants are immigrants, including Afro-Latinos and other immigrants of African descent.40 Economists have long demonstrated that lighter skin tone can result in approximately 17 percent more earnings for immigrants, including Latino immigrants, even after controlling for educational attainment and other productivity-linked demographic characteristics like English-language proficiency, education level, and so forth.41 Studies specific to particular Latino immigrant groups indicate similar findings. Mexican Americans with darker skin earn significantly less than lighter-skinned Mexican Americans with more European facial characteristics.42 Even after controlling for education, English-language proficiency, occupation prior to entry in the US, family background, ethnicity, race, and country of birth, light-skinned immigrants still earn significantly more than their darker-skinned counterparts.43
In fact, the skin-shade penalty in wages for darker immigrants is driven exclusively by the experience of immigrants from Latin America, because the wage effects of colorism are much less pronounced among other ethnic groups.44 One possible explanation for the significance of colorism in the wages of Latino immigrants of African descent, operating in contrast to its lack of effect in the wages of African immigrants of African descent, is the existence of separate ethnic hiring networks,45 which enable Latino anti-Black colorist bias to operate unfettered.46 In other words, Latinos who recruit, recommend, and hire other Latino workers help set a Latino color-based hierarchy that adversely affects Afro-Latinos in ways that African immigrants seeking jobs through separate African hiring networks are insulated from.
Even so, judges do not always fully understand the particulars of Latino colorism as a problematic aspect of racial discrimination. The color discrimination case of Carmen Felix provides a helpful example.47 Carmen Felix, a Puerto Rican of “partial African ancestry” was terminated from employment as a secretary with the Washington, DC, office of the Federal Affairs Administration of the Government of Puerto Rico (formerly known as the Office of the Commonwealth of Puerto Rico in Washington, DC ([OCPRW]), at the behest of both the Puerto Rican administrator of the office, José Cabranes, and the Puerto Rican supervisor, Providencia Haggerty.
To prove her claim of color discrimination, Carmen introduced the personnel cards of twenty-eight fellow employees to demonstrate that only two others were as dark or darker than she. She argued that there was thus a prevailing bias against dark-skinned employees in the office in the allocation of promotions that privileged what she termed “White” employees with higher-ranked positions. The judge purported to dispute Carmen’s premise of dark-skin bias by visually inspecting the photographs himself and then enumerating the employees Carmen had presumably misclassified as White, when in the judge’s view they were some shade of brown.
The judge then went on to say, “These observations tend to contradict the placement of a rigid line between White and non-White employees of the OCPRW drawn by [Carmen] Felix in her testimony and reflect the fact that a substantial number of Puerto Ricans have mixed ancestry.” And therein the court misperceived the actualization of colorism within Latino communities and workplaces; the persons the judge viewed as brown-skinned were perceived by Carmen, and likely her coworkers, as White by virtue of their phenotype, hair texture, and socioeconomic class and not simply because of their skin shade.
As described in chapter 1, there exists a vast literature that documents the ways in which Latinos often manifest White skin preferences in their mode of self-identification and in choice of associations that recall and mirror Latin American racial ideology.48 What this literature demonstrates, in particular, is how Latino expressions of color bias are intimately connected with assessments of phenotype, hair texture, size and shape of noses and lips, and socioeconomic class standing. Latino race labeling thus factors in considerations of bodily features other than color that are considered to be racial signifiers of denigrated African ancestry.49 Accordingly, when a claimant like Carmen Felix in a predominantly Latino workplace enumerates the coworkers deemed to be White, she is referring to coworkers who have achieved that racial characterization not simply because of their skin color.
What the social science literature indicates is that two individuals can be of the same light skin shade, but if one has African facial features and hair texture, a Latino would not likely categorize such an individual as White, absent indicators that the person was wealthy or of high social status.50 In turn, the non-Whiteness attributed to that light-skinned person with African features would better position another light-skinned person with less prominent African features to be perceived as White in that context. In essence, Latinos treat racial categorization in a functional manner. In any given context, there are “functional Whites and Blacks,” regardless of their degree of pigment.51 Importantly, even though this Latino categorization scheme is fluid and context specific, it still forms the foundation for racially exclusionary conduct.52 In other words, despite the absence of scientific precision, Latino racial categorization methods still create a tightly woven caste system that prizes approximations to Whiteness. The complexity of a Latino racial hierarchy cannot be captured by a simplistic assessment of employee skin shades. Thus, what Carmen Felix’s judge failed to appreciate is how nuanced and perverse Latino/Latin American assessments of color and status are.
There is an irony in the judge failing to appropriately assess the colorism claim of the Afro–Puerto Rican Carmen after having stated that it is a particularly “appropriate claim for a Puerto Rican to present.” Ironic because district court judge John Helm Pratt, until his death in 1995, was known as an important defender of civil rights and discrimination law. In 1977 and 1983 he issued orders requiring the federal government to combat bias in schools against minority groups, women, and people with disabilities.53 Judge Pratt was a White man born in New Hampshire in 1910, but some of his most significant decisions made progress in the area of individual freedom and civil rights. Yet even this defender of US civil rights was unable to understand the racialized complexity of Latino color discrimination.
This is, in part, because the federal employment discrimination legislation of Title VII of the Civil Rights Act of 1964 provides separate categories of “race,” “color,” and “national origin” for what is viewed as impermissible discrimination. As a result, judges have acted as if the categories are mutually exclusive and do not relate or reinforce each other, despite the fact that the statute does not prohibit a consideration of how the categories intersect. This tunnel vision hampers judges from understanding intersectional claims where the various categories overlap in one person’s experience of discrimination.54 As a result, a “color” claim gets reduced to a simplistic consideration of skin color variation. In turn, the judiciary’s sole focus on skin color completely misses how Latinos deploy racial categories informed by hair texture, phenotypic features, class, place, and space and not uniquely by skin color.
It is also interesting to note, that when African Americans or other non-Latino persons of African descent present colorism claims, courts have instead been disinclined to focus on degrees of skin color. Legal scholar Taunya Lovell Banks observes that this is because of the view that with respect to African Americans and non-Latino immigrants of African descent, one drop of Black blood makes you Black and that there are no degrees of Blackness in the US cultural mindset for persons other than Latinos.55 In contrast, Latino colorism claims are subject to the judicial misconception of racial mixture as less prone to bias.
There is a judicial inclination to act as a color meter rather than examining how a more expansive range of racial preoccupations are deployed against Latinos of African descent within the Latino workplace. Even the color discrimination cases filed within the federal district court of Puerto Rico (in which the body of US federal civil rights laws are applied) before Puerto Rican judges are not immune from the judicial fallacy that color discrimination involves only skin color. Milton Falero Santiago encountered this problem when he was terminated from his position as a sales director because of his color.56 In his court papers, Milton described himself as a “darker-skinned, or mulatto, Puerto Rican” and then juxtaposed his color with the White skin color of the Puerto Rican employee who took over some of his duties when Milton was terminated. The court dismissed Milton’s claim as non-race-based.
Milton alleged that his White Latino supervisor called him “boy” on several occasions. As we know, there is a long racial history of Black men being called “boys” as a method to subordinate them by imbuing persons of their racial status as incapable of full human personhood.57 The same racial dynamic occurs in Puerto Rico and Latin America. Moreover, the US Supreme Court has even acknowledged that such references can be presented as evidence of racial animus.58 Yet, the presiding Puerto Rican jurist, Judge Perez-Gimenez, dismissively stated that “while the attributed remark is somewhat disrespectful, it seems obvious that the term ‘boy’ refers to a person’s age and lacks racial and/or color connotations.” Thus, even a Puerto Rican judge in Puerto Rico, presumably privy to the dynamics of Latino/Latin American racialization methods, is just as susceptible to misconstruing colorism when the legal cause of action is equated as solely a skin-shade matter. Judicially limiting the inquiry into color discrimination to a simplistic examination of skin color differences alone misses the multiplicity of ways racialized color hierarchies are imposed. Such an equivalence undermines the legal enforcement against discrimination perpetrated by Latinos in the workplace.
The effects of a tunnel-vision inquiry into Latino-caused workplace discrimination are not inconsequential. The racially segmented labor market means that Latinos are often employed in Latino-dominant workplaces with Latino coworkers and supervisors. Any judicial misunderstanding of Latino manifestations of anti-Blackness thus means less legal protection against racial discrimination. Over time, the growth of Latino-owned businesses that disproportionately hire Latinos and make them supervisors has increased the power of the Latino-influenced labor market. The currently available data shows that between 2012 and 2017 growth in Latino-owned businesses was more than double the national average (14 percent versus 6 percent), outstripping it in forty-one out of fifty states and in the vast majority of the nation’s largest economic sectors.59 Between 1987 and 1997, Latino-owned businesses increased 232 percent.60 Importantly, between 2014 and 2016, employment in Latino-owned businesses increased at double the rate of employment in non-Latino-owned businesses.61 Within the small business sector, Latino businesses are the most substantial drivers of growth. The number of Latino-owned small businesses increased by 34 percent between 2010 and 2020,62 nearly double the Latino population growth during this same time period.63 In comparison, non-Latino-owned small businesses grew at a rate of only 1 percent over the same decade.64
Put together, what all these labor statistics mean for Latinos is that despite the marginalization of Latinos in society, Latino racial attitudes are not marginal to experiences of racial bias in the workplace. In fact, Latino workers with Latino supervisors earn less money than Latinos supervised by non-Latino supervisors, whether they are employed in the informal labor sector or in the formal labor market.65 The wage penalty of having a Latino supervisor exists regardless of education level, work experience, tenure, language skill, citizenship status, gender, firm size, or occupation. Furthermore, Latinos with Latino supervisors are less likely to hold positions of authority.66 Taking into account that Latino workers have a greater propensity to have Latino supervisors who influence their hiring, wages, and performance evaluations, the influence of Latino racial attitudes in the labor market is considerable.67 The next chapter shows how Latino racial attitudes are just as relevant in the world of segregated housing.