Why it matters

Is "Hispanic" a race under Title VII? The Second Circuit Court of Appeals answered "yes" in a recent case involving a white, Italian-American employee who sued after being denied a promotion that went to a white, Hispanic candidate. Christopher Barrella claimed that although he achieved the highest score on the required exam and had stronger qualifications for the town's police chief position, the mayor selected the other candidate, later touted as the "first Hispanic" and "first Latino" police chief. A jury agreed, awarding Barrella $1.35 million despite the town's defense that "Hispanic" was not a distinct race as a matter of law and that the plaintiff and selected candidate were both white. The Second Circuit sided with the jury, finding that while the use of "Hispanic" has been "less-than-straightforward," the term does refer to a race under the statute.

Detailed discussion

Andrew Hardwick was elected as mayor of the Village of Freeport, New York, in 2009. Once in office, Hardwick sought to replace the all-white police department command staff with officers who would help him "achieve his vision of community unity."

Hardwick identified Miguel Bermudez as his preferred candidate for chief of police. A resident of Freeport, Bermudez was born in Cuba and self-identified as a member of the white race. He had known Hardwick for more than 25 years, and the outgoing police chief recommended him for the position.

The police chief job is a civil service position for which candidates must sit for a promotional examination, and six lieutenants sat for the exam. Christopher Barrella, a white Italian-American, scored the highest. Bermudez came in third.

When Hardwick selected Bermudez, Barrella filed suit against Hardwick and the Village of Freeport, alleging discrimination based on race and national origin in violation of Title VII, Sections 1981 and 1983, and New York state law.

During the three-week trial, Barrella argued he was more qualified than Bermudez because in addition to receiving the highest score on the exam, he had earned a master's degree in criminal justice and a law degree while Bermudez had not completed college. After five days of deliberation, a federal court jury found Hardwick had intentionally discriminated against Barrella and awarded the plaintiff $1.3 million.

The defendants appealed. They told the court that as a matter of law, "Hispanic" does not constitute a distinct race, meaning both Barrella and Bermudez are white and Hardwick's decision to promote one white candidate rather than another could not have been racial discrimination.

Characterizing the issue as "a vexed and recurring question," the Second Circuit Court of Appeals held that Hispanic does constitute a race.

The federal government's "less-than-straightforward" use of the terms "race" and "Hispanic" has resulted in confusion about their legal definitions, with the terminology changing over time (in 1930, the Census Bureau counted the "Mexican" race while current usage recognizes "Hispanic or Latino" as an ethnicity where members can belong to any race). Societal use has also varied, with the federal appellate panel noting that Hispanics themselves often identify differently than the suggested bureaucratic categories.

Despite this confusion, "the existence of a Hispanic 'race' has long been settled with respect to Section 1981," the court said. "Although that statute never uses the word 'race,' the Supreme Court has construed it as forbidding 'racial' discrimination in public or private employment," in a 1987 decision, Saint Francis College v. Al-Khazraji.

"As a result, two people who both appear to be 'white' in the vernacular sense of the term, and who would both identify as 'white' on Census forms and the like, may nonetheless belong to different 'races' for purposes of Section 1981," the panel wrote. "Similarly, someone may belong to more than one 'race' for purposes of that statute."

Hispanics clearly constitute an ethnic group, the court said, and after theSaint Francis College decision, the Second Circuit recognized that discrimination against Hispanics constituted racial discrimination under Section 1981.

With that settled, the panel turned to Title VII, where it noted that the protected classes – including race and national origin – may substantially overlap in a specific case. The distinction is important, the court explained, because Section 1981 does not prohibit discrimination on the basis of national origin. Therefore, if Hispanic was treated as a national origin and not a race, a potential plaintiff would be required to present two different factual arguments in a case alleging violations of both Section 1981 and Title VII.

The panel rejected the district court's holding that the question of whether Hispanic constituted a race was one of fact for the jury. The error was harmless, however, "because the jury reached the same conclusion as we do today: that discrimination based on ethnicity, including Hispanicity or lack thereof, constitutes racial discrimination under Title VII."

"We reach this conclusion for two reasons: First, we analyze claims of racial discrimination identically under Title VII and Section 1981 in other respects, and we see no reason why we should not do the same with respect to how we define race for purposes of those statutes," the Second Circuit wrote. "Second, we have repeatedly assumed that claims of ethnicity-based discrimination, including discrimination based on Hispanicity, are cognizable as claims of racial discrimination under Title VII, albeit without holding so explicitly."

The court added that a claim of discrimination based on Hispanic ethnicity or lack thereof may also be cognizable under the rubric of national-origin discrimination, depending on the particular facts of the case. "We hold only that for purposes of Title VII, 'race' encompasses ethnicity, just as it does under Section 1981," the panel concluded.

However, the court reversed the jury verdict in favor of Barrella, ruling that the trial court allowed multiple witnesses to impermissibly speculate about Hardwick's motives for various personnel decisions. For example, one witness testified that the new head of Human Resources "couldn't possibly be qualified to do what she was doing" and the only reason he could imagine for her being hired was "that she was a female Hispanic." The panel remanded the case for a new trial.

To read the decision in Village of Freeport v. Barrella, click here.