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Hispanics A Protected Class

Hispanics a “Protected Class” Whether the Protection Derives from Race or National Origin

In the Village of Freeport, New York, a Lieutenant Christopher Barella applied for the open position “Chief of Police”.  He was confident that he would receive the promotion, as he had recently taken the written exam and had scored higher than any other exam taker.  His score was higher than FIVE other police officers who had also taken the exam, including the “Assistant Chief of Police” Miguel Bermudez.   Bermudez received the third highest score, behind Barella and another respondent.   Both Barella and Bermudez identified themselves as “Caucasian”.   Bermudez was born in Cuba, but had immigrated to Freeport as a child and grew up in Freeport.  

Unbeknownst to Lieutenant Barella, the Mayor of Freeport had vetted Bermudez even before the exam, and had the Board of Trustees approval.  The Mayor then promoted Bermudez to Chief of Police, “without interviewing Barrella, or reviewing his resume’, personnel file, or other materials related to his candidacy for the position”.  Barella believed that these documents, as well as his test scores and other qualifications – his education (Barella had a Masters Degree in Public Administration, a Law Degree and was a member of the New York State Bar) and “time in rank” qualified him for the Chief of Police position above and before Bermudez.  

Barrella sued the Village of Freeport under Title VII alleging that he was passed over for the promotion because of his race (non-Hispanic white) and National Origin (American).   The Village of Freeport argued that “Hispanic” was not a distinct race and that Barrella and Bermudez were both white under the law, and therefore, racial discrimination was not possible.  A jury however, found for Barrella and awarded him damages.  The Village of Freeport appealed alleging that this was a legal error.  

The Court found no error.   The Court cited that “Title VII obviously affords a cause of action for discrimination based on Hispanic ethnicity”.   The court further explained, “Courts have assumed that Hispanics constitute a ‘protected class’ without saying whether that protection derives from race or national origin”.   

The Court found that two people who appear and identify as “white” may nonetheless belong to different “races”.  The Court further noted that the Village of Freeport admitted that Hispanics clearly constitute an ethnic group”.     For purposes of Title VII, the Court ruled “discrimination based on ethnicity, including Hispanicity or lack thereof, constitutes racial discrimination under Title VII.”  

The court noted, but did not rule, that national origin discrimination could be invoked as well though dependent “on the particular facts”.   Barrella v Village of Freeport 2nd Circuit 2016.