Is there Title VII "race" discrimination if the two competing candidates identify as "white"? The Second Circuit holds that this scenario may state a claim where one of the candidates is deemed to be of "Hispanic" ethnicity.
Village of Freeport v. Barrella, No. 14-2270 (2d Cir. Feb. 16, 2016): The plaintiff Christopher Barrella persuaded a jury to award him $150,000 for lost back pay, $1,000,000 for lost future pay, and (against one defendant) $200,000 in punitive damages for denial of promotion to village chief of police. The trial proceeded solely under a theory of race discrimination under 42 U.S.C. § 1981, Title VII, and the New York State Human Rights Law ("NYSHRL"), N.Y. Exec. Law § 290. The district court dismissed the parallel claim of national-origin discrimination.
At trial, the jury heard evidence that Mayor Hardwick - the first Black mayor of Freeport - aimed to shake up the all-white "command staff" of the village's police department. The leading candidate for chief of police was Lieutenant Bermudez, "who identifies as a member of the White race" yet was born in Cuba. Barrella, who is of Italian-American heritage, outscored Bermudez on the promotional examination, and had a law degree and a master's in criminal justice (Bermudez had not finished college). Yet, without so much as reviewing the candidates' materials, the village chose Bermudez.
On appeal, the principal issue was whether the claim could proceed on a theory of race discrimination, where both candidates identified as white, based on a contention that Barrella lost to a candidate of "Hispanic" ancestry. (The panel did not definitively rule that replacement with a same-race candidate automatically defeated a Title VII race-discrimination claim, but accepted this standard for purposes of reviewing the verdict.)
Barrella won his section 1981 claim, as well, and the Second Circuit long ago held - for purposes of that statute - that "Hispanic" is considered a "race." Albert v. Carovano, 851 F.2d 561, 572 (2d Cir. 1988) (en banc). But because the jury was also instructed on Title VII, which provides a separate set of relief, the panel confronted the issue of whether "Hispanic" constitutes "race" or "national origin" discrimination under that act.
The panel holds that "for purposes of Title VII, 'race' encompasses ethnicity, just as it does under § 1981." It rejects the argument that "race" is a question of fact for the jury, and holds that "[t]he meaning of the word 'race' in Title VII is, like any other question of statutory interpretation, a question of law for the court."
The panel notes that public-policy and academic researchers differ widely in their precise definition of "Hispanic," finding no consensus in the literature. Still, it notes later in the opinion that "[b]ecause the parties agree that Bermudez is Hispanic-even if they contest the significance of that designation-we need not decide whose definition of 'Hispanic' matters."
It then holds that "Hispanic" should be regarded as "race" under Title VII, 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."
It observes that Title VII "discrimination based on Hispanic ethnicity or lack thereof may also be cognizable under the rubric of national‐origin discrimination," depending on the facts.
The panel also concedes that this legal conclusion clashes with the EEOC and other federal agency's interpretations of "Hispanic" (set out in a tabular appendix), but holds that it is not bound by these administrative interpretations.
The panel further holds that Mayor Hardwick had no "qualified immunity" from punitive damages, because "it has been clear since the Reagan Administration that § 1981 bars employers from discriminating based on Hispanic ethnicity or lack thereof."
Despite agreeing with the plaintiff's theory of the case, the panel vacates and remands the case for a new trial, based on the erroneous admission of lay-opinion testimony - in violation of Fed. R. Evid. 701 - by several witnesses that "impermissibly speculated as to Hardwick's motives for various personnel decisions." This included city policymakers who were permitted to testify that "there might have been a component of race involved in [Hardwick's] decision" based on the witnesses' observations of the process and prior staffing decisions.
The panel holds that allowing such testimony, "despite those witnesses' admissions that they had no personal knowledge of Hardwick's selection process and only the vaguest idea of the relevant candidates' qualifications . . . was not helpful to the jury in the sense required by Rule 701(b), and the District Court's decision to allow the jury to consider it was an 'abuse of discretion.'"
Further, because of the closeness of the evidence - there was ample testimony of other motives, such as the Bermudez's personal loyalty to the mayor and the fact that Bermudez was a native of Freeport - it could not be said that the improperly-admitted evidence did not tip the balance. "The line between legitimate politics and illegitimate racial discrimination can be difficult to draw in practice - which reinforces our assessment of this case as factually close."