Tuesday, June 14, 2016

The term “race” includes ethnicity for purposes of 42 USC 1981 and Title VII


The term “race” includes ethnicity for purposes of 42 USC 1981 and Title VII
Village of Freeport and Andrew Hardwick v Barrella, USCA, Second Circuit, No. 14-2270-cv (L) et. al.

Christopher Barrella sued the Village of Freeport and its former mayor, Andrew Hardwick, [Hardwick] alleging Hardwick violated 42 USC 1981, Title VII of the Civil Rights Act of 1964, 42 USC 2000e, and the New York State Human Rights Law, New York Executive Law §290. Barrella alleged that Hardwick had not appointed him chief of police because Barrella was a white Italian-American, and that Hardwick had instead appointed a less-qualified Hispanic candidate to the position. A federal district court judge denied Hardwick’s motions for summary judgment as a matter of law. After a trial the jury returned a verdict in favor of Barrella.

Hardwick appealed the decision. The Second Circuit affirmed the judgment of the District Court insofar as it denied Hardwick's motions for summary judgment.

The Circuit Court explained that longstanding Supreme Court and Second Circuit precedents indicated that "race" includes ethnicity for purposes of  42 USC 1981, so that discrimination based on “Hispanic ancestry” or lack thereof constitutes racial discrimination under that statute. Further, said the court, "race" should be defined the same way for purposes of Title VII.

Accordingly, the Circuit Court reject Hardwick's argument that an employer who promotes a white Hispanic candidate over a white non-Hispanic candidate cannot have engaged in racial discrimination and affirmed the judgment of the District Court insofar as it denied Hardwick's' motion for judgment as a matter of law pursuant the Federal Rules of Civil procedure.

However, the Circuit Court ruled that the District Court erred in permitting "lay opinion testimony" that speculated as to Hardwick's reasons for not appointing Barrella. This, said the court, was a violation of Rule 701(b) of the Federal Rules of Evidence and because this case was factually close, this did not constitute “a harmless error.”

The judgment of the District Court was vacated and the matter remanded for a new trial consistent with the consistent with the decision of the Circuit Court of Appeals.

The decision is posted on the Internet at:

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