The issue of what constitutes “race” under anti-discrimination laws is more complicated that one might think. In a recent decision, the Second Circuit held that “Hispanic” ethnicity constitutes a “race” under Title VII and Section 1981. Vill. of Freeport v. Barrella, 2016 U.S. App. LEXIS 2629 (2d Cir. February 16, 2016).
The facts of the case are not all that important, but worth a review nevertheless. Christopher Barrella (who is white) claimed that he was not selected to be the police chief of the Village of Freeport, because the town’s first African-American Mayor wanted to replace the police department’s all-white command staff. The Mayor picked Miguel Bermudez for the job. Bermudez identifies as white, though he was born in Cuba.
When Barrella sued for reverse race discrimination, the Village defended the decision by saying that since both Barrella and Bermudez identified as “white” there was no discrimination possible. The trial court rejected that view and sent the matter to the jury, which returned a verdict in Barrella’s favor for over $1.3 million. The Village appealed.
The Second Circuit looked at the “what is race?” issue in great detail. As Judge Cabranes put it: “[t]his 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.” He continued that the court “need not answer the vexed question posed by the Village’s brief: ‘What is Race?’ We do, however, need to resolve a narrower issue: whether ‘Hispanic’ is a ‘race’ for purposes of §1981 and Title VII.
The court noted that the Census Bureau in 2013 recognized five “races:” white, black or African-American, American Indian or Alaskan Native, Asian, or Native Hawaiian or other Pacific Islander. Moreover, the government has distinguished between race and ethnicity in OMB reports since at least 1977. The current trend, however, is to blur that distinction. There is a suggestion that the 2020 census will ask respondents to select the “categories” to which they belong.
Section 1981 is not too difficult here. In St. Francis College v. Al-Khazraji, 481 U.S. 604 (U.S. 1987), the Supreme Court held that the definition of race under that statute should be based on race as it was defined upon passage in 1866. So, race includes all sorts of ethnicities, including Arabs, Jews, Swedes, and even Gypsies. “As a result,” said the court, “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.
Title VII presents its own unique issues. First, there is the fact that “national origin” is a separate protected class. Hispanic or Latino, however, is not a national origin (“so, what part of Hispania are you from?”). Second, using the Supreme Court’s reasoning in St. Francis College, the “races” in 1964 (at least as I recall from fifth grade social studies) were “Caucasoid,” “Negroid,” and “Mongoloid.” So that’s no real help here. The court queried: “Title VII obviously affords a cause of action for discrimination based on Hispanic ethnicity—but why?”
Essentially, the court concluded that it simply is easier to treat “ethnicity” as protected “race” under Title VII, just as under Section 1981, regardless of the century that passed between the two statutes. While this was an easy solution, it may not be true to Congressional intent. The devil is in the details: does the court’s decision mean that a Swede can allege both race and national origin discrimination under Title VII. The court suggested that, at least for Hispanicity (yes, that’s the term) it may, stressing 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 each case.”