Is Hispanic A Race? Sí O No? The Second Circuit Recently Held In Village Of Freeport V. Barrella That Sí, Hispanic Is A Race Under The Federal Anti-discrimination Employment Law

Vanessa Fonts

The United States has come a long way in the prohibition of employment discrimination.  From the necessary passage of the 1964 Act, in particular Title VII of the 1961 Act, to the amendments of the 1991 Act, and the establishment of the Equal Employment Opportunity Commission to enforce antidiscrimination employment laws, the mission to stop and remedy unlawful employment discrimination is being accomplished.  The antidiscrimination laws, at least the ones I focused on my article—Title VII and Section 1981—prohibit discriminatory practices on an employee because of their membership to a certain class, whether it be sex, color, religion, but specifically on their race.[i] 

However, I particularly questioned whether Hispanic is a race under Title VII?  On February 16, 2016, the Second Circuit Court of Appeals answered yes in a recent case that involved a white, Italian-American employee who sued after he was denied a promotion that was awarded to a white, Hispanic candidate.[ii]  Christopher Barrella argued that although he got the highest score on the required exam and had better qualifications for the position of the town's police chief, the mayor designated the other candidate.[iii]  The defense attorney stated that Hispanic is not a race and therefore there could not have been any racial discrimination on behalf of the employer.[iv]  The Second Circuit classified this matter as a vexed and recurring question when holding that Hispanic does in fact constitute as a race.[v]

            It has been established through precedent that discrimination based on Hispanic ancestry amounted to racial discrimination under Section 1981 and the court referred to the Supreme Court’s decision in Saint Francis College.[vi]  Section 1981 also prohibits what is referred to as reverse discrimination, which protects against discrimination based on a lack of, in this case, Hispanic ethnicity.  The plaintiff in the case was alleging racial discrimination because since he was not Hispanic like the other candidate, he was not promoted to chief.[vii]  To be noted, Section 1981 prohibits discrimination on the basis of race, even though it is not explicitly stated, but not on the basis of national origin.

The equal employment provisions of Title VII of the Civil Rights Act of 1964, were passed to guarantee equal employment opportunities by prohibiting discrimination in the work place on the basis of race, color, religion, sex, or national origin, which are commonly known as the protected classes.  In the past, most courts have assumed that Hispanics constituted a protected class under Title VII, but have not specified whether that protection stemmed from the national origin class or the race class.

The court in this case resolved whether Hispanicity should be classified as a race, as it is in Section 1981.  They reached the conclusion that as a matter of law, Hispanic is a race not only for the purposes of Section 1981, but also for Title VII.[viii]  They held that race should be defined the same way as it is in Section 1981 for Title VII.[ix]  However, when racial discrimination claims based on Hispanicity arose, courts were split over whether to regard them as a racial discrimination claim or a national origin discrimination claim.[x]  This split caused for an overlap of both those claims when an individual would like to invoke both Title VII and Section 1981, since Hispanic was not recognized as a race under Title VII but under Section 1981 it was because race encompassed ethnicity.[xi]

To conclude, Village of Freeport v. Barrella could be heralded as a victory for the minority groups whom identify as Hispanic since they were never certain if they were recognized as a distinct race for purposes of Title VII.

[i].              42 U.S.C. § 2000e-2(a); 42 U.S.C. § 1981(a) (2012).
[ii].              Vill. of Freeport v. Barrella, 814 F.3d 594, 607 (2d Cir. 2016).
[iii].             Id. at 599–600.
[iv].             Id. at 601–02.
[v].              Id. at 598.
[vi].             Saint Francis Coll. v. Al-Khazraji, 481 U.S. 604, 613 (1987).
[vii].            Barrella, 814 F.3d at 600.
[viii].            Id. at 607.
[ix].             Id.
[x].              See Alonzo v. Chase Manhattan Bank, N.A., 25 F. Supp. 2d 455, 459 (S.D.N.Y. 1998) (stating the split in court decisions where Hispanic has been held a race and others where it has been held a national origin).
[xi].             Saint Francis Coll., 481 U.S. at 614 (Brennan, J., concurring).

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