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Second Circuit Clarifies that Race Under Section 1981 and Title VII Includes Hispanic
Practical Law Legal Update w-001-4531 (Approx. 4 pages)
Second Circuit Clarifies that Race Under Section 1981 and Title VII Includes Hispanic
by Practical Law Labor & Employment
| Published on 22 Feb 2016 • USA (National/Federal) |
In Village of Freeport v. Barrella, the US Court of Appeals for the Second Circuit held that "race" under both Section 1981 and Title VII includes Hispanic ancestry and that discrimination based on Hispanic ancestry is racial discrimination under both statutes.
On February 16, 2016, in Village of Freeport v. Barrella, the US Court of Appeals for the Second Circuit held that "race" under both Section 1981 and Title VII includes Hispanic ancestry, and that discrimination based on an individual's Hispanic ancestry (or not being of Hispanic ancestry) constitutes racial discrimination under both statutes. The court rejected a municipality's contention that it could not have engaged in racial discrimination when it promoted a white Hispanic as its chief of police over a white non-Hispanic. (Village of Freeport v. Barrella, (2d Cir. Feb. 16, 2016).)
Background
The Village of Freeport, New York promoted a Hispanic police lieutenant, Miguel Bermudez, to chief of police. Christopher Barrella, a white Italian-American police lieutenant who sought the position and scored higher than Bermudez on the promotional examination, filed a charge with the EEOC and ultimately an action in US district court. Barrella alleged that Freeport violated Section 1981 and Title VII by not promoting him to police chief because of his race as a non-Hispanic white.
At trial, the district court directed the jury to resolve the issue of whether Hispanic is a race. The jury found that:
- Hispanic was a race.
- Freeport intentionally discriminated against Barrella based on his race.
Freeport appealed to the Second Circuit.
Outcome
The Second Circuit held that:
- Hispanic is a race under both Section 1981 and Title VII, and the district court erred in treating the issue as a question of fact and not of law.
- Discrimination based on an individual's Hispanic ancestry (or not being of Hispanic ancestry) constitutes racial discrimination under both Section 1981 and Title VII.
- Promoting a white Hispanic candidate over a white non-Hispanic candidate can constitute discrimination under both Section 1981 and Title VII.
- The district court's error in having the issue of whether Hispanic is a race resolved by the jury was harmless because the jury reached the correct conclusion.
The Second Circuit noted that:
- Although both the US Supreme Court and the Second Circuit had held that Section 1981's prohibition on racial discrimination includes discrimination against Hispanics, the Second Circuit has yet to address whether Hispanic is a race under Title VII. Most courts assume that Hispanics are a protected class but it is broadly unclear whether that protection is based on race or national origin.
- Courts including the US Supreme Court and the Second Circuit have assumed that:
- Title VII's definition of race included ethnicity; and
- discrimination claims based on Hispanic ethnicity may be viewed as racial discrimination claims.
Since Hispanic has been found to be a race for Section 1981 purposes, and the court analyzes Section 1981 and Title VII discrimination claims identically, Hispanic should be treated as a race under Title VII as well.
Practical Implications
The Second Circuit's decision in Village of Freeport v. Barrella clarifies that Hispanic is a race for both Section 1981 and Title VII purposes. Employers in the circuit should be aware that discriminating against Hispanics could constitute racial discrimination, and that selecting a white Hispanic over a white non-Hispanic (or vice versa) could subject them to a racial discrimination claim under Title VII and Section 1981.