Hispanic Ethnicity Qualifies as ‘Race’ Under Anti-Discrimination Law

By Jeffrey L. Rhodes Mar 11, 2016
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A white, non-Hispanic employee could pursue a claim that his employer discriminated against him by favoring a Hispanic employee but could not rely on speculative opinion testimony, the 2nd U.S. Circuit Court of Appeals ruled.

In 2009, the Village of Freeport, N.Y., elected its first black mayor, Andrew Hardwick. In 2010, the village announced that it would be appointing a new chief of police. In March 2010, six Freeport police lieutenants sat for a promotional examination. Christopher Barrella, a white Italian‐American born in the United States, scored highest. In April 2010, Hardwick appointed Miguel Bermudez, a Hispanic lieutenant who came in third on the promotional exam, to the position. Bermudez was a longtime personal friend of Hardwick and was appointed after Hardwick made public statements concerning the need for diversity in hiring by the village. While Bermudez lacked a college degree, Barrella had a master’s degree in criminal justice and a law degree and had more time in rank than Bermudez. Barrella, however, was not a resident of the village.

After Bermudez’s promotion to chief of police, Barrella brought employment discrimination claims against the village and its mayor, Hardwick, under Title VII of the Civil Rights Act of 1964 and 42 U.S.C. Section 1981, which concerns racial discrimination. Before the case went to trial, the village and Hardwick sought dismissal of Barrella’s claims by asserting that Bermudez’s Hispanic ethnicity was not a “race” under these laws. The district court denied the defendants’ motion and allowed the jury to determine whether Hispanic ethnicity was a “race” once the case went to trial. At trial, two village employees, Alfred Gros, the former chief of police, and Raymond Maguire, Hardwick’s former chief of staff, testified that Hardwick relied on racial prejudice to select Bermudez over Barrella. As a result of the evidence submitted, Barrella succeeded at trial and the jury awarded him $150,000 for lost back pay, $1 million for lost future pay and (against Hardwick only) $200,000 in punitive damages.

On appeal, the village and Hardwick challenged the district court’s rejection of its claim that Hispanic ethnicity was not a “race” under Title VII and Section 1981, and argued that Gros’ and Maguire’s testimonies were inadmissible, requiring a retrial. In response, the 2nd Circuit considered the complex history of how the U.S. government treated Hispanic heritage in the 20th century. The court noted that early in the 20th century, the Census Bureau often did not distinguish between Hispanics and non-Hispanics in its self-identification forms. By midcentury, identification of white individuals with “Spanish surnames” began to give place to identification of Hispanic or Latino ethnicity. Ultimately, however, the 2nd Circuit recognized that Hispanic identity constituted a “race” under the federal civil rights employment laws, and thus a non-Hispanic individual could sue for discrimination in favor of a Hispanic individual under those laws.

Nevertheless, the court found that the verdict in favor of Barrella had to be reversed and the case retried because of the district court’s admission into evidence of improper opinion testimony. In reviewing the testimonies of Gros and Maguire, the 2nd Circuit determined that their opinions that racial discrimination had occurred was not based on any firsthand experiences witnessed by them, but only on their speculation concerning how Hardwick made his decision. Because the evidence was close concerning the relative value of Barrella’s qualifications versus those of Bermudez, the 2nd Circuit reversed the jury verdict and ordered a new trial in which subjective perceptions of racial prejudice would not be allowed into evidence.

Village of Freeport v. Barrella, 2nd Cir., 14-2270-cv (Feb. 16, 2016).

Professional Pointer: Employers often wrongly assume that a discrimination claim can be based only on obvious differences in race, failing to recognize that even slight differences in racial makeup or ethnicity may support a claim. At the same time, claims of racial discrimination must be supported by substantial evidence and cannot rely merely on the speculations of employees. 

Jeffrey L. Rhodes is an attorney with Doumar Martin PLLC in Arlington, Va.

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