Second Circuit Holds “Hispanic” Is A “Race” Under Title VII and § 1981

Plaintiff Christopher Barrella (“Barrella”), a white police officer of Italian-American heritage, brought an action in federal district court under 42 U.S.C. § 1981, Title VII of the Civil Rights Act of 1964, and the New York State Human Rights Law against the Village of Freeport (“Village”) and its former mayor, Andrew Hardwick (“Hardwick”) (collectively “Defendants”).  In the suit, Barrella alleges that he was not hired as chief of police in favor of a less qualified Hispanic candidate, Miguel Bermudez (“Bermudez”), on the basis of race and national origin, even though Bermudez, born in Cuba, identifies as “white.” 

After extensive discovery, Defendants moved for summary judgment, which was denied except with respect to Barrella's claim of national-origin discrimination. The case then went to trial, and after five days of deliberation, the jury rendered a verdict against both defendants, finding that Hardwick had intentionally discriminated against Barrella on the basis of race. The jury awarded Barrella $150,000 for lost back pay, $1,000,000 for lost future pay, and (against Hardwick only) $200,000 in punitive damages. The District Court denied defendants' motions for judgment as a matter of law under Rule 50 of the Federal Rules of Civil Procedure and for a new trial or remittitur under Rule 59. The Court also awarded attorneys' fees and costs to Barrella. Defendants appealed.

On appeal, a central question addressed by the Second Circuit was whether “Hispanic” was a race for purposes of Title VII and § 1981.  Defendants claimed that since both candidates identified as white, there could not be discrimination as a matter of law, however the Second Circuit rejected this argument.  While acknowledging the muddled and conflicting usage of “race” and “ethnicity,” including the nuances between Hispanic and Latino, and the common usages versus bureaucratic definition, the Court found that the legal usage of the term in civil rights cases was quite consistent. Accordingly, the Court “need not answer the vexed question posed by the Village's brief: ‘What is Race?’”

Regarding § 1981, the Court noted that while the statute never uses the word “race,” the Supreme Court has found that the statute prohibits racial discrimination, which includes discrimination based on “ancestry or ethnic characteristics.” As “Hispanic” clearly constitutes an ethnic group, both in common usage and under the Supreme Court’s precedent in Saint Francis College v. Al–Khazraji, the Court held that Hispanics constituted a distinct race for purposes of § 1981.

The Court next turned to Title VII, noting that while the prohibition on discrimination against Hispanics was clearly encompassed in the statute’s “race, color, religion, sex, or national origin” language, there was no precedent directly addressing which of those bases “Hispanic” fell under.  Instead, previous decisions simply held that it was a protected class. 

Below, the district court first ruled as a matter of law that Hispanic was a national origin, but was a type of race, before reversing and finding that whether Hispanic was a race was a question of fact for the jury.  The Second Circuit reversed that decision, noting that “race” is a statutory term and therefore a question of law for the court.  However, “the District Court's error was harmless, because the jury reached the same conclusion as we do today: that discrimination based on ethnicity, including Hispanicity or lack thereof, constitutes racial discrimination under Title VII.”  Thus, even though Hispanic could also be cognizable under national-origin discrimination based upon the facts, the Court held that for purposes of Title VII, race encompasses ethnicity, just as it does under § 1981.

The case was Vill. of Freeport v. Barrella, 814 F.3d 594 (2d Cir. 2016).

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