Second Circuit Rules “Hispanic” Constitutes a Race Under Federal Anti-Discrimination Law

Lucie Rivière and Edgar M. Rivera, Esq.

On February 16, 2016, in Barella v. Village of Freeport, a bench of three Second Circuit judges—one white American, one Puerto Rican, and another black of Haitian decent—decided what it meant to be “Hispanic.” Judge José A. Cabranes, writing for the Court, held that under 42 U.S.C. § 1981 and Title VII, “race” included ethnicity. As such, the Second Circuit denied the Defendants’ motion for judgment as a matter of law (the case, however, was remanded on other grounds) and confirmed that discrimination claims based on Hispanic ancestry may proceed as race claims under these statutes.

In 2009, the Village of Freeport elected Andrew Hardwick (African-American) as its mayor. Once in office, Mayor Hardwick sought to replace the Freeport Police Department’s all-white “command staff” with officers who would help him “achieve his vision of community unity.” The racial makeup of Freeport is 42.5% Hispanic, 30.9% African American, and 23.6% white.

In March 2010, Mayor Hardwick announced that it would be appointing a new chief of police, which is a civil service position for which candidates must take a promotional exam. The three highest scorers on the exam are eligible for selection by the mayor, who exercises sole control over the appointment.  The result of the exam are as follows: Plaintiff Christopher Barrella (white Italian America) scored highest; Lieutenant Wayne Giglio (white American) scored the second highest; and, Miguel Bermudez (white Hispanic) scored the third highest. Unlike Mr. Bermudez, who had not completed college, Mr. Barrella had earned a master’s degree in criminal justice and a law degree. At the same time, however, Mr. Barella did not know Mayor Hardwick, lacked any influence political allies, and was not, and never had been, a Freeport resident. In contrast, Mr. Bermudez (born in Cuba) had grown up in Freeport, was currently living in Freeport, and had known Mayor Hardwick for 25 years, primarily through their shared service in the Freeport Fire Department. Also, Mayor Hardwick previously had recommended that Mr. Bermudez be promoted, to deputy chief in April 2010 and assistant chief around June. In fact, Mr. Bermudez had taken the role as de facto chief of police because the nominal chief was often absent from Freeport on leave in preparation for his pending retirement. In November 2010, Mayor Hardwick promoted Mr. Bermudez to the position, which caused Mr. Barrella to file a charge with the U.S. Equal Employment Opportunity Commission (“EEOC”), alleging that he had not been promoted because of his race (non-Hispanic white) and national origin (American). On January 25, 2012, he commenced this action against Mayor Hardwick and Freeport Village, alleging violations of 42 U.S.C. §§ 1981 and 1983, Title VII, and NYSHRL. On May 28, 2014, the jury rendered a verdict against both Defendants, finding that Mayor Hardwick intentionally discriminated against Mr. Barrella on the basis of race and awarding Mr. Barrella approximately $1.35 million in damages. Defendants appealed.

Defendants’ principal argument on appeal was that “Hispanics” do not constitute a district “race” for purposes of § 1981 and Title VII and, as result, Plaintiff’s claims failed as a matter of law. Defendants argued that Mr. Barrella and Mr. Bermudez were both white under § 1981 and Title VII, and Mayor Hardwick’s decision to promote one white candidate rather than another could not have constituted racial discrimination.

The Second Circuit disagreed. Regarding § 1981, the court decided that the Supreme Court had already decided in 1987 that “racial discrimination” included discrimination based on “ancestry or ethnic characteristics.” As such, the issue had already been resolved, and the court admonished Defendants’ counsel for failing to cite that precedent. Regarding Title VII, the Court held that discrimination based on ethnicity constitutes racial discrimination. The Court reached this conclusion for two reasons: (1) the Court did not see any reason why the analysis of racial discrimination should be different whether under § 1981 or Title VII; and (2) the Second Circuit, without directly holding so, has long assumed that claims of ethnicity-based discrimination are cognizable as claims of racial discrimination under Title VII.

However, the Second Circuit also held that the District Court erred in allowing several witnesses to speculate about Mayor Hardwick’s motivation for various employment decisions, and that the errors warranted a new trial. In conclusion, the Second Circuit affirmed the District Court’s judgment insofar as it denied Defendants’ motions for judgment as a matter of law but remanded the case for a new trial due to the District Court error in admitting lay opinion testimony that impermissibly speculated to Mayor Hardwick’s reasons for promoting Mr. Bermudez.

If you believe you have been subject to race discrimination, please contact The Harman Firm, LLP.