Federal Court Concludes That Hispanic Constitutes A Race For Purposes Of Federal Employment Discrimination Law
For years, courts have struggled with the question as to whether Hispanic constitutes a race for purposes of federal employment discrimination laws, including Title VII of the Civil Rights Act of 1964 (Title VII) and 42 U.S.C. § 1981 (section 1981). Title VII prohibits employers from discriminating against employees on the basis race, color, national origin, sex, and religion. These categories are referred to as “protected characteristics” or “protected classes.” Section 1981 forbids employers from discriminating against employees on the basis of race but not on the basis of national origin. As observed by the United States Second Circuit Court of Appeals in De la Cruz v. N.Y. City of Human Res. Admin. Dep’t of Soc. Servs., 82 F.3d 16 (2d Cir. 1996), although courts have customarily treated Hispanic as a protected class under Title VII, they have done so without explaining whether that protection is based on an employee’s race or national origin.
The U.S. Equal Employment Opportunity Commission (EEOC), which is the federal agency responsible for enforcing Title VII, generally treats Hispanic as a national origin for purposes of Title VII. In Espinoza v. Farah Manufacturing Company., Inc., 414 U.S. 86 (1973), the U.S. Supreme Court defined a national origin as the “country where a person was born, or, more broadly, the country from which his or her ancestors came.” In treating Hispanic as a national origin for purposes of Title VII, the EEOC has defined the term Hispanic to mean a person of Mexican, Puerto Rican, Cuban, Central or South American or other Spanish culture or origin. However, the EEOC’s interpretation of Title VII is not controlling and is entitled at most to deference only to the extent it has the power to persuade. In Village of Freeport v. Barrella, 814 F.3d 594 (2d Cir. 2016), the Second Circuit found the EEOC’s interpretation of Title VII unpersuasive and held that Hispanic constitutes a race for purposes of Title VII and section 1981.
Employer Argues That Hispanic Is Not A Race
In Barrella, Christopher Barrella (Barrella), a white Italian-American, claimed that he was not promoted to the position of chief of police in violation of Title VII and section 1981. Barrella was employed as a police officer by the Village of Freeport, New York (Freeport). When there was a vacancy for chief of police, Barrella and five other candidates took a promotional examination. Barrella received the highest score on the test. Nonetheless, Mayor Andrew Hardwick (Hardwick) elected to promote another candidate, Miquel Bermudez (Bermudez). Bermudez, who was born in Cuba and identifies himself as white, came in third on the promotional examination.
Barrella claimed that he was more qualified than Bermudez for the position of chief of police. Unlike Bermudez, who did not have a college degree, Barrella had a master’s degree in criminal justice and a law degree. Barrella also had more service time as a lieutenant than Bermudez. Moreover, Hardwick promoted Bermudez to chief of police without interviewing Barrella or reviewing his personnel file. Barrella claimed that he was not promoted to police chief because of his race (non-Hispanic white) and national origin (American). In support of his race discrimination claim, Barrella produced evidence that Hardwick considered Bermudez to be Hispanic and repeatedly identified Bermudez as Freeport’s “first Hispanic police chief.” Barrella also came forward with evidence showing that Bermudez described himself as “Hispanic.”
During the litigation, Freeport maintained that Hispanics do not constitute a distinct race for purposes of Title VII and section 1981. As a result, Freeport argued that Hardwick’s decision to promote one white candidate rather than another could not have constituted race discrimination in violation of Title VII or section 1981. Before submitting the case to the jury for resolution, the trial court ruled that whether Hispanic is a race for purposes of Title VII and section 1981 was a question of fact to be decided by the jury. After five days of deliberation, the jury found that Barrella was not promoted to chief of police because of his race in violation of Title VII and section 1981.
Court Does Not Treat Hispanicity As A National Origin
In rejecting the trial court’s ruling that whether Hispanic is a race is a question for the jury, the Second Circuit pointed out that the U.S. Supreme Court decided in Saint Francis College v. Al-Khazraji, 481 U.S. 604 (1987) that Hispanic is a race for purposes of section 1981. However, the Second Circuit explained, whether Hispanic constitutes a race for purposes of Title VII has not been definitively resolved. In holding that discrimination on the basis of Hispanicity or lack thereof constitutes race discrimination under Title VII, the Second Circuit reasoned that because claims of racial discrimination are analyzed identically under Title VII and section 1981, there was no reason the definition of race should not be analyzed the same way for purposes of those statutes. In other words, because Hispanic is a race for purposes of section 1981, Hispanic is also a race for purposes of Title VII.
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Based in Ocala, Florida and representing employees throughout Central Florida, we have more than fifteen years of experience representing employees who have suffered discrimination on the basis of race or national origin. If you have been the victim of race or national origin discrimination, please contact our office for a free consultation with our Central Florida race discrimination attorneys. Our employee rights law firm takes race and national origin discrimination cases on a contingency fee basis. This means that there are no attorney’s fees incurred unless there is a recovery and our attorney’s fees come solely from the monetary award that you recover.