The term “race” for purposes of 42 U.S.C. 1981 is to be defined the same as the term “race” is defined for the purposes of Title VII

The term “race” for purposes of 42 U.S.C. 1981 is to be defined the same as the term “race” is defined for the purposes of Title VII

Village of Freeport v Barrella. USCA 2^nd Circuit, Docket 14-2270

A disappointed candidate for appointment to the position Chief of Police sued the Village of Freeport for alleged unlawful discrimination.

The individual, a “white Italian-American.” alleged that a “less-qualified Hispanic candidate” was appointed to the position in violation of 42 USC 1983 because he scored highest on the examination and of the three names on the list certified for the appointment, the Hispanic candidate was ranked "third."* The Village argued that an employer who promotes a “white Hispanic” candidate over a “white non-Hispanic” candidate cannot have engaged in unlawful discrimination based on race.

The Second Circuit reject the Village’s argument, explaining that the term “race” includes ethnicity for the purposes of 42 USC 1983 and race should be defined in the same manner as “race” is defined for the purposes of Title VII. In so doing the court said “The Parties and the District Court experienced some confusion in unraveling the legal definitions of “race” and “Hispanic,” thanks partly to  the federal government’s less-than-straightforward use of those terms,” citing McCleskey v Kemp, 481 US 279.

The court also noted that even to the extent that one eligible was more qualified than another eligible for appointment, federal anti-discrimination law “does not require that the candidate whom a court considers most qualified for a particular position be awarded that position; it requires only that the decision among candidates not be discriminatory.” Further, said the Circuit Court, “an employer’s stated desire for diversity in the workplace does not, without more, establish a discriminatory intent with respect to any particular employment decision.”

* It appears that the appointment was otherwise consistent with the so-called "rule of three" set out in §61 of the Civil Service Law.

The decision is posted on the Internet at:

http://www.ca2.uscourts.gov/decisions/isysquery/9b9a5a4b-3821-4207-85d5-52e87d144e8e/1/doc/14-2270_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/9b9a5a4b-3821-4207-85d5-52e87d144e8e/1/hilite/