March 9, 2017
By Collin O’Connor Udell
On February 16, 2016, the Second Circuit issued an opinion holding that “Hispanic” is a race for the purposes of both Section 1981 and Title VII.Village of Freeport v. Barrella, 814 F.3d 594 (2d Cir. 2016). Judge José A. Cabranes, writing for the panel, began by stating that the case “asks us to resolve a vexed and recurring question: what does it mean to be Hispanic?” Id. at 598.
The facts are these: Andrew Hardwick was the first black mayor in the Village of Freeport. As part of his “vision for Freeport,” he wanted to replace the Freeport Police Department’s all-white command staff. The Freeport Chief of Police position is a civil service position, and to apply, one must take a promotional examination. Those with the three highest scores were eligible for selection by Mayor Hardwick, who had sole control over the appointment. The eligible candidates were: Christopher Barrella, a white Italian-American born in the United States, who had the highest score; Lieutenant Wayne Giglio, also white, who received the second-highest score; and Lieutenant Miguel Bermudez, born in Cuba and self-identified as white, who earned the third-highest score. Chief Hardwick identified Bermudez as his preferred candidate; the two had known each other for over 25 years.
Barrella believed that he was best qualified, having received a master’s degree in criminal justice and a law degree. He also had longer “time in rank” as a lieutenant than Bermudez, who had not completed college. As noted, Barrella was the high scorer on the promotional examination.
Chief Hardwick promoted Bermudez to chief. He never interviewed Barrella or reviewed Barrella’s application, resume, or personnel file. Barrella filed a charge with the EEOC, alleging he had not been promoted because of his race (non-Hispanic white) and national origin (American). After receiving a right-to-sue letter from the EEOC, he sued Hardwick and the Village of Freeport in federal court, alleging, inter alia, violations of section 1981 and Title VII. The district court denied summary judgment as to all claims except the national-origin discrimination claim. The case proceeded to a jury trial, and the jury’s verdict was in favor of Barrella, finding that Hardwick had intentionally discriminated against Barrella on the basis of race. An appeal to the Second Circuit followed.
The Second Circuit rejected the federal government’s position that “Hispanic or Latino” is an ethnicity that could belong to any race. The Court found this was at odds with both Hispanics themselves and with mainstream media. Despite this confusion, the Court held that with respect to Section 1981, the existence of “Hispanic” as a race has been well established since the Supreme Court’s decision in Saint Francis Coll. v. Al-Khazraji, 481 U.S. 604, 609 (1987). Indeed, the Court pointed to its own precedent holding as much, Albert v. Carovano, 851 F.2d 561, 572 (2d Cir. 1988) (en banc).
Despite this “longstanding clarity,” the Court noted that whether “Hispanic” is a race for purposes of Title VII was a question of first impression. It also noted that although Title VII and Section 1981 overlap in many ways, they differ significantly in others, such as “statutes of limitations, employers’ respondeat superior liability, the cognizability of claims against individuals (as opposed to organizations), and whether a plaintiff must show that discrimination was intentional.” 814 F.3d at 606 n.37. The Court identified the question whether “Hispanic” was a race as a question of law inasmuch as it is a question of statutory interpretation. Despite the differences between the statutes, the Court noted that it analyzes claims of racial discrimination identically under Title VII and Section 1981 and saw no reason to change that analysis with respect to how it defines race in the context of those statutes. Accordingly, it held that, as with Section 1981, “Hispanic” is a race for purposes of Title VII.
Notwithstanding its legal holding, the Court vacated the district court’s judgment and remanded for a new trial because the district court erred in admitting lay opinion testimony that impermissibly speculated about Mayor Hardwick’s reasons for promoting Bermudez. Because “[t]he line between legitimate politics and illegitimate racial discrimination can be difficult to draw in practice,” id. at 615, the Court assessed this case as factually close, such that admission of the lay opinion testimony prejudiced defendants, necessitating a new trial.
In sum, the Court rejected defendants’ argument that an employer who promotes a white Hispanic candidate over a white non-Hispanic candidate cannot have engaged in racial discrimination. This is so regardless of whether the claim is brought under Section 1981 or Title VII.
Source: The National Law Review