The 2d Circuit asks, "What does it mean to be Hispanic?"

I will leave it to the Court of Appeals to frame the issue in this case: "This case asks us to resolve a vexed and recurring question: what does it mean to be Hispanic? Specifically, it presents the question of whether 'Hispanic' describes a race for purposes of § 1981 and Title VII."

The case is Village of Freeport v. Barrella, decided on February 16. In this employment discrimination case, the plaintiff, a white male, was denied a promotion to the Police Chief position, which instead went to an Hispanic male. Plaintiff said he was denied the position because he was white and that the Mayor's choice was a less-qualified Hispanic. He sues under Title VII and Section 1981, both of which prohibit employment discrimination. The case went to trial and the plaintiff won. The Village appeals, arguing that there is no case because these statutes -- which prohibit racial discrimination -- do not contemplate this kind of discrimination and that the definition of "race" does not include Hispanic ancestry or the lack thereof. This argument allows the Village to claim that plaintiff and Bermudez (who got the position) are both white under the statute. The Court of Appeals (Cabranes, Leval and Lohier) disagrees.

After reviewing the linguistic history of  how people from Mexico, Puerto Rico and other countries define themselves (i.e., Hispanic, Latino, etc.), the Court looks at Section 1981, and says this:

Despite societal confusion regarding Hispanic identity, the existence of a 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.”

. . .

In short, despite defendants’ repeated attempts to confuse an already complicated, vexed issue, it has long been settled in this circuit that Hispanics comprise a distinct race for purposes of § 1981.

The same analysis applies to Title VII. "In contrast to our longstanding clarity with respect to § 1981, we have not yet resolved whether Hispanics constitute a race for purposes of Title VII." In particular, are Hispanics covered under the race or national origin provisions under Title VII? "If we were to treat Hispanicity as a national origin, but not as a race, for purposes of Title VII, plaintiffs in cases involving pro‐ or anti‐Hispanic discrimination might in some circumstances need to present two different factual arguments in order to invoke the distinct remedies of that statute along with those of § 1981." The Court concludes that "discrimination based on ethnicity, including Hispanicity or lack thereof, constitutes racial discrimination under Title VII." The Court reasons it out this way:

We reach this conclusion for two reasons. First, we analyze claims of racial discrimination identically under Title VII and § 1981 in other respects, and we see no reason why we should not do the same with respect to how we define race with for purposes of those statutes. 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. In Malave v. Potter (2003), for instance, we implicitly acknowledged the viability of a Title VII race‐discrimination claim based on Hispanic ethnicity. Similarly, in Krulik v. Board of Education (1986), we assumed the viability of a Title VII claim for intentional racial discrimination based on the plaintiff’s status as “white, Jewish, and/or not Hispanic.” The Supreme Court has similarly assumed that Title VII’s definition of race encompasses ethnicity.

There is more to this decision, to be discussed in a later blog post. This case went to trial, and the jury found for plaintiff, awarding him more than $1 million in damages. That is probably why the Village fought so hard to have this reversed on appeal on technical grounds about the proper scope of Title VII and Section 1981. But the Court of Appeals, through the above analysis, in the end vacates the verdict and sends the case back for a retrial because of serious trial errors that deprived the Village a fair trial.