Fordham Law


Racial Discrimination: Latin America Versus U.S.

Tanya Hernandez in Diversity Executive, December 05, 2012

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As a child,Tanya Hernandez traveled between the United States and Latin America and noticed the commonalities in how people of African descent were stereotyped and limited across the Americas. Now a professor of law at Fordham University, Hernandez focuses her research on Latin America and just published the book Racial Subordination in Latin America: The Role of the State, Customary Law, and the New Civil Rights Response.

She discusses the similarities between racial discrimination in the United States and Latin America and how her research can help identify ways to promote diversity in the workplace.

Can you explain the type of racial discrimination you study in your book Racial Subordination in Latin America?
The book examines all forms of social exclusion that persons of African ancestry experience in Latin America, including workplace discrimination, housing discrimination, public accommodations segregation and educational discrimination. What has been distinctive about racial exclusion in Latin America is that it has often not taken the form of officially enacted laws of racial segregation as experienced particularly in the United States with Jim Crow in the South. Instead, customary law — the enforcement of unwritten laws established by long usage rather than legislative enactment — has been used as a tool of racial exclusion in Latin America.

How would you compare the situation in Latin America with racial discrimination presently in the U.S.?
The U.S.’s growing mythology about being a “post-racial” nation has many parallels with Latin America. The early U.S. civil rights movement was astonishingly successful at making the goal of racial equality a stated national norm and catalyzing government programs designed to provide concrete access to jobs and education. However, the movement’s very success contributes to the notion that blacks and other persons of color no longer require legal assistance in accessing equal opportunity.

Indeed, President Obama’s 2008 election is viewed as the culmination of U.S. racial transcendence, so much that now the United States presents itself as “racially innocent” in much the same way Latin America has long claimed to be because of its absence of official Jim Crow racial segregation laws. At the same time neither region has eradicated systemic racism, as evidenced by the longstanding institutional racial disparities in employment, educational attainment, access to health care and capital, residential segregation, and disparate incarcerations and conviction rates across the Americas.

Do you see similar types of discrimination that manifest themselves in the workplace?
In the workplace, racial barriers can often be more overt in Latin America. It is not uncommon to see employers mandate the racially coded “buena apariencia” (good appearance) requirement for hiring that is a well-known euphemism for white skin color and European phenotype and hair texture. Furthermore, even when explicit racial barriers are not imposed, the unconscious biases of employers are often manifested in their stereotypes about the presumed inadequacy of Afro-descended applicants.

As a professor at Fordham’s law school, what is the role of law in all of this? Is law helpful in promoting diversity?
Law can be very helpful in addressing racial exclusion and furthering diversity. In those countries in Latin America in which the state has been the most involved in enacting anti-discrimination legislation and developing race-based affirmative action policies, there has been the most progress in the level of workplace and educational diversity. Brazil provides the starkest example of such progress aided through anti-discrimination law and public policy.

At businesses, would you recommend the same types of strict laws to promote diversity? Or is there another approach?
Strict laws are most effective at promoting diversity because they provide employers with clear parameters. While many employers may be well-intentioned and prefer to operate under a purely voluntary scheme for promoting diversity, the U.S. and Latin American context are both replete with examples of how unconscious biases can still obstruct even the most well-intentioned employers.

Jeffrey Cattel is an editorial intern at Diversity Executive magazine.