Is “Hispanic” A Race Or An Unprotected Ethnicity Under § 1981 And Title VII?

By Don Benson, Esq.

The Second Circuit issued an opinion on February 16, 2016, holding that “Hispanic” is a race for the purposes of both 42 U.S.C. §1981 and 42 U.S.C. § 2000e, Title VII. Village of Freeport v. Barrella, 814 F.3d 594 (2d Cir. 2016).

The Court rejected the employer’s argument that promotion of a white Hispanic candidate over a white non-Hispanic candidate cannot be racial discrimination.  The employee could bring a claim  under  § 1981 or Title VII:

Based on longstanding Supreme Court and Second Circuit precedent, we reiterate that “race” includes ethnicity for purposes of § 1981, so that discrimination based on Hispanic ancestry or lack thereof constitutes racial discrimination under that statute. We also hold that “race” should be defined the same way for purposes of Title VII.

Plaintiff sued the Village of Freeport, N. Y., alleging race discrimination under both statutes  because the former mayor failed to promote Plaintiff to Chief of Police in favor of an allegedly less qualified Hispanic candidate, Miguel Berrmudez. Plaintiff is a white Italian-American and Mr. Bermudez self-identifies as a Cuban-born White.

The Court commented that the existence of an Hispanic “race” has long been settled with respect to § 1981.  Although that statute never uses the word “race,” the Supreme Court has construed it as forbidding “racial” discrimination in public or private employment. The Court has further defined racial discrimination,” for purposes of § 1981, as including discrimination based on “ancestry or ethnic characteristics.” 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 § 1981. “For instance, in Saint Francis College v. Al-Khazraji, the Supreme Court found that employment discrimination “based on the fact that [a plaintiff] was born an Arab” constitutes racial discrimination under § 1981, even though “under current racial classifications Arabs are Caucasians.”

The Second Circuit extended the same rationale to ethnicity as race claims under Title VII.

Although the Second Circuit’s jurisdiction extends only to Connecticut, New York, and Vermont; Plaintiffs here in the Eleventh Circuit will try to use this case and its rationale as precedent for Eleventh Circuit courts in Florida, Alabama and Georgia.

Admittedly this is an oddly pled case because Title VII provides that it is unlawful for an employer to discriminate against any individual with respect to employment based on the individual’s national origin. A plaintiff who wants to being a discrimination claim under Title VII could bring it on the basis of ethnicity as a national origin claim. However, maybe the Plaintiff in Barella complained only of race discrimination in  his Charge before the EEOC and not national origin,  or maybe he proceeded in a race claim because he did not have evidence to support a national origin claim.