Filed: Feb. 16, 2016
Latest Update: Mar. 02, 2020
Summary: 14-2270-cv (L) Village of Freeport v. Barrella In the United States Court of Appeals for the Second Circuit AUGUST TERM 2015 Nos. 14-2270-cv (L), 14-2349-cv (CON), 14-4287-cv (CON), 14-4324-cv (CON), 14-3615-cv (XAP) VILLAGE OF FREEPORT AND ANDREW HARDWICK, AS MAYOR AND IN HIS INDIVIDUAL CAPACITY, Defendants-Appellants-Cross-Appellees, v. CHRISTOPHER BARRELLA, Plaintiff-Appellee-Cross-Appellant.* On Appeal from the United States District Court for the Eastern District of New York ARGUED: DECEMBE
Summary: 14-2270-cv (L) Village of Freeport v. Barrella In the United States Court of Appeals for the Second Circuit AUGUST TERM 2015 Nos. 14-2270-cv (L), 14-2349-cv (CON), 14-4287-cv (CON), 14-4324-cv (CON), 14-3615-cv (XAP) VILLAGE OF FREEPORT AND ANDREW HARDWICK, AS MAYOR AND IN HIS INDIVIDUAL CAPACITY, Defendants-Appellants-Cross-Appellees, v. CHRISTOPHER BARRELLA, Plaintiff-Appellee-Cross-Appellant.* On Appeal from the United States District Court for the Eastern District of New York ARGUED: DECEMBER..
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14‐2270‐cv (L)
Village of Freeport v. Barrella
In the
United States Court of Appeals
for the Second Circuit
AUGUST TERM 2015
Nos. 14‐2270‐cv (L), 14‐2349‐cv (CON), 14‐4287‐cv (CON),
14‐4324‐cv (CON), 14‐3615‐cv (XAP)
VILLAGE OF FREEPORT AND ANDREW HARDWICK, AS MAYOR AND IN
HIS INDIVIDUAL CAPACITY,
Defendants‐Appellants‐Cross‐Appellees,
v.
CHRISTOPHER BARRELLA,
Plaintiff‐Appellee‐Cross‐Appellant.*
On Appeal from the United States District Court
for the Eastern District of New York
ARGUED: DECEMBER 9, 2015
DECIDED: FEBRUARY 16, 2016
The Clerk of Court is directed to amend the official caption to conform to
*
the caption above.
Before: LEVAL, CABRANES, and LOHIER, Circuit Judges.
This 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.
Defendants the Village of Freeport, NY (“Freeport” or “the
Village”) and its former mayor, Andrew Hardwick (“Hardwick”),
appeal from a judgment of the United States District Court for the
Eastern District of New York (Arthur D. Spatt, Judge) following a jury
verdict for plaintiff Christopher Barrella (“Barrella”). Barrella had
sued under 42 U.S.C. § 1981, Title VII of the Civil Rights Act of 1964,
42 U.S.C. § 2000e et seq., and the New York State Human Rights Law
(“NYSHRL”), N.Y. Exec. Law § 290 et seq., alleging 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.
Based on longstanding Supreme Court and Second Circuit
precedent, we reiterate that “race” includes ethnicity for purposes of
§ 1981, so that discrimination based on Hispanic ancestry or lack
thereof constitutes racial discrimination under that statute. We also
hold that “race” should be defined the same way for purposes of
Title VII. Accordingly, we reject defendants’ argument that an
employer who promotes a white Hispanic candidate over a white
non‐Hispanic candidate cannot have engaged in racial
2
discrimination, and we AFFIRM the judgment of the District Court
insofar as it denied defendants’ motions for judgment as a matter of
law pursuant to Rule 50 of the Federal Rules of Civil Procedure.
We also hold that the District Court erred in permitting lay
opinion testimony that speculated as to Hardwick’s reasons for not
appointing Barrella, in violation of Rule 701(b) of the Federal Rules of
Evidence. Because this case was factually close, we conclude that the
District Court’s error was not harmless. We therefore VACATE the
judgment of the District Court and REMAND for a new trial
consistent with this opinion.
KEITH M. CORBETT, Harris Beach PLLC,
Uniondale, NY, for Defendant‐Appellant‐
Cross‐Appellee Village of Freeport.
KENNETH A. NOVIKOFF (Evan H. Krinick,
Cheryl F. Korman, Scott R. Green, on the
brief), Rivkin Radler LLP, Uniondale, NY, for
Defendant‐Appellant‐Cross‐Appellee Andrew
Hardwick.
AMANDA M. FUGAZY (Adam C. Weiss, Paul
P. Rooney, on the brief), Ellenoff Grossman &
Schole LLP, New York, NY, for Plaintiff‐
Appellee‐Cross‐Appellant Christopher Barrella.
3
JOSÉ A. CABRANES, Circuit Judge:
This 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.
Defendants the Village of Freeport, NY (“Freeport” or “the
Village”) and its former mayor, Andrew Hardwick (“Hardwick”),
appeal from a judgment of the United States District Court for the
Eastern District of New York (Arthur D. Spatt, Judge) following a jury
verdict for plaintiff Christopher Barrella (“Barrella”). Barrella had
sued under 42 U.S.C. § 1981, Title VII of the Civil Rights Act of 1964,
42 U.S.C. § 2000e et seq., and the New York State Human Rights Law
(“NYSHRL”), N.Y. Exec. Law § 290 et seq., alleging 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.
Based on longstanding Supreme Court and Second Circuit
precedent, we reiterate that “race” includes ethnicity for purposes of
§ 1981, so that discrimination based on Hispanic ancestry or lack
thereof constitutes racial discrimination under that statute. We also
hold that “race” should be defined the same way for purposes of
Title VII. Accordingly, we reject defendants’ argument that an
employer who promotes a white Hispanic candidate over a white
non‐Hispanic candidate cannot have engaged in racial
4
discrimination, and we AFFIRM the judgment of the District Court
insofar as it denied defendants’ motions for judgment as a matter of
law pursuant to Rule 50 of the Federal Rules of Civil Procedure.
We also hold that the District Court erred in permitting lay
opinion testimony that speculated as to Hardwick’s reasons for not
appointing Barrella, in violation of Rule 701(b) of the Federal Rules of
Evidence. Because this case was factually close, we conclude that the
District Court’s error was not harmless. We therefore VACATE the
judgment of the District Court and REMAND for a new trial
consistent with this opinion.
I. BACKGROUND1
In 2009, the Village elected its first black mayor, Andrew
Hardwick. Once in office, Hardwick sought to replace the Freeport
Police Department’s all‐white “command staff”—its chief, assistant
chief, and deputy chief—with officers who “shared his vision for
Freeport”2 and would help him “achieve his vision of community
unity.”3
Because this appeal follows a jury verdict, we view the facts in the light
1
most favorable to the prevailing party, namely, Barrella. See Altria Grp., Inc. v.
United States, 658 F.3d 276, 279 (2d Cir. 2011).
2 Hardwick Br. 6.
3 Village Br. 7. Defendants also contend that Hardwick believed that the
salaries and benefits of the existing command staff had become fiscally
unsustainable. J.A. 2269. (References to “J.A.” are to the joint appendix.)
5
Hardwick quickly identified Lieutenant Miguel Bermudez
(“Bermudez”) as his preferred candidate for the command staff and,
ultimately, for chief of police. Bermudez—“who identifies as a
member of the White race” and was born in Cuba4—had grown up in
Freeport and, after living for some time in nearby Massapequa Park,
had moved back to the Village in 2006. Bermudez and Hardwick had
known each other for more than 25 years,5 primarily through their
shared service in the Freeport Fire Department.
Filling the positions of deputy chief and assistant chief
required approval by the Village Board of Trustees, of which the
mayor was a member. In April 2010, Hardwick recommended to the
Trustees that Bermudez be named deputy chief (the most junior of
the three command staff positions), and the Trustees unanimously
approved his appointment. Three months later, the mayor
recommended, and the Board confirmed, Bermudez’s promotion to
assistant chief. That promotion made Bermudez the de facto chief of
police because the nominal chief, Michael Woodward, was often
absent from Freeport, as he used up his accrued leave in preparation
for his pending retirement.
4 Hardwick Br. 2.
The precise duration of their relationship is unclear. Hardwick testified
5
that he had known Bermudez for “[o]ver 40 years.” J.A. 3208. Hardwick’s counsel
told the jury that the number was 30 or 35 years, Barrella v. Vill. of Freeport, 43 F.
Supp. 3d 136, 148 (E.D.N.Y. 2014), but now states that “Hardwick and Bermudez
had known each other for over twenty‐five (25) years at the time he was elected
Mayor,” Hardwick Br. 7.
6
Unlike the positions of deputy chief and assistant chief, the
Freeport Chief of Police is a civil service position for which
candidates must take a promotional examination. The three highest
scorers are eligible for selection by the mayor, who exercises sole
control over the appointment.
After the Village announced that it would be appointing a new
chief, six Freeport police lieutenants sat for a promotional
examination, in March 2010. Plaintiff Christopher Barrella, a white
Italian‐American born in the United States, scored highest.
Lieutenant Wayne Giglio, also white, earned the second‐highest
score. Bermudez came in third.
Barrella testified that he considered himself more qualified
than Bermudez to serve as chief. Unlike Bermudez, who had not
completed college, Barrella had earned a master’s degree in criminal
justice and a law degree. Barrella also had more “time in rank” as a
lieutenant than Bermudez. And Barrella out‐scored Bermudez on the
promotional examination. At the same time, Barrella faced three
obstacles: he did not know Hardwick; he lacked any influential
political allies; and he was not, and never had been, a Freeport
resident. The parties dispute the relevance of these considerations.
7
In November 2010, Hardwick promoted Bermudez to chief
without interviewing Barrella or reviewing his resume, personnel
file, or other materials related to his candidacy for the position.6
In August 2011, Barrella filed a charge with the U.S. Equal
Employment Opportunity Commission (“EEOC”), alleging that he
had not been promoted because of his race (non‐Hispanic white) and
national origin (American). After the EEOC sent Barrella a “Notice of
Right to Sue,” he commenced this action on January 25, 2012, against
Hardwick7 and the Village, alleging violations of 42 U.S.C. §§ 1981
and 1983,8 Title VII, and NYSHRL.
Nor did Hardwick thoroughly review Bermudez’s personnel records. For
6
instance, before making his decision, Hardwick did not bother to learn whether
Bermudez had obtained a college degree.
7 Barrella sued Hardwick in his official and individual capacities. At the
end of the trial, the District Court “implicitly dismissed any claims against
Hardwick in his official capacity” as merely duplicating the suit against the
Village. Barrella, 43 F. Supp. 3d at 172.
8 Section 1983 provides in relevant part that
[e]very person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State . . . subjects, or causes to
be subjected, any citizen of the United States or other person
within the jurisdiction thereof to the deprivation of any rights,
privileges, or immunities secured by the Constitution and laws,
shall be liable to the party injured in an action at law, suit in
equity, or other proper proceeding for redress . . . .
Because § 1983 does not confer any substantive rights, but “merely provides a
method for vindicating federal rights elsewhere conferred,” Patterson v. Cty. of
8
After extensive discovery, defendants filed motions for
summary judgment. On April 26, 2014, the District Court denied the
motions except with respect to Barrella’s claim of national‐origin
discrimination. The case then proceeded to trial, during which the
jury heard testimony from twelve witnesses over a period of three
weeks. At the conclusion of the trial, and after five days of
deliberation, the jury rendered a verdict against both defendants on
May 28, 2014, finding that Hardwick had intentionally discriminated
against Barrella on the basis of race. The jury awarded Barrella
$150,000 for lost back pay, $1,000,000 for lost future pay, and (against
Hardwick only) $200,000 in punitive damages. The District Court
denied defendants’ motions for judgment as a matter of law under
Rule 50 of the Federal Rules of Civil Procedure and for a new trial or
remittitur under Rule 59. The Court also awarded attorneys’ fees and
costs to Barrella, but denied his motion to augment his damages to
offset the negative tax consequences of receiving his lost income as a
lump sum. This appeal followed.
II. DISCUSSION
A. Is “Hispanic” a “Race”?
Defendants’ principal argument is that “Hispanics” do not
constitute a distinct “race” as a matter of law. As a result, defendants
argue, Barrella and Bermudez are both white in the estimation of
Oneida, 375 F.3d 206, 225 (2d Cir. 2004) (internal quotation marks omitted), we
need not consider Barrella’s § 1983 claims separately from his § 1981 claims.
9
federal antidiscrimination statutes, and Hardwick’s decision to
promote one white candidate rather than another could not have
constituted racial discrimination.9 Defendants raised this argument in
9 We express no opinion as to whether it is accurate, as defendants insist,
that “if Bermudez was of the same race as . . . Barrella, there can be, as a matter of
law, no inference of racial discrimination.” Hardwick Br. 54; cf. Village Br. 21 (“It
is axiomatic[ ] that a Plaintiff attempting to establish [that] he is a member of a
protected class . . . is required to demonstrate that he suffered racial
discrimination as a result of an individual of a different race receiving a benefit to
which the Plaintiff was denied.”). Neither defendant cites a published appellate
decision supporting this notion. Of course, the fact that an employer favored
someone outside of the relevant protected class “will ordinarily suffice” to sustain
an inference of discrimination. See Littlejohn v. City of New York, 795 F.3d 297, 313
(2d Cir. 2015). Conversely, a plaintiff who cannot show an employer’s “preference
for a person not of the [plaintiff’s] protected class” will usually be unable to
sustain a claim of disparate treatment. See James v. N.Y. Racing Ass’n, 233 F.3d 149,
154 (2d Cir. 2000). But we have nonetheless suggested that a plaintiff may be able
to plead a prima facie case under Title VII even without showing that the
defendant favored someone outside of the plaintiff’s protected class. See Leibowitz
v. Cornell Univ., 584 F.3d 487, 502 n.5 (2d Cir. 2009); see also Fisher v. Vassar Coll., 70
F.3d 1420, 1448 (2d Cir. 1995) (“[F]avorable treatment of one member of a
protected class does not rule out the possibility that another member of the same
class suffered discrimination.”), reheard en banc on other grounds, 114 F.3d 1332 (2d
Cir. 1997), abrogated on other grounds by Reeves v. Sanderson Plumbing Prods., Inc.,
530 U.S. 133 (2000).
It would seem especially inappropriate to require such a showing in the
instant case, “in which the [mayor’s] discretion [was] circumscribed by a
promotion list limiting [him] to three choices.” Carroll v. City of Mount Vernon, 707
F. Supp. 2d 449, 454 n.8 (S.D.N.Y. 2010). If, as defendants maintain, Bermudez is
white as a matter of law, then the results of the March 2010 promotional
examination forced Hardwick to choose among three “white” candidates for
chief: Barrella, Giglio, and Bermudez. Accordingly, Hardwick’s ultimate decision
to appoint a “white” chief in those circumstances would hardly prove the absence
of discriminatory intent. Cf. Ricci v. DeStefano, 557 U.S. 557 (2009) (recognizing that
white and Hispanic firefighters could bring a claim under Title VII after their
10
their motions for summary judgment, motions in limine, and at trial.
They renew the same argument here in challenging the District
Court’s denial of their Rule 50 motions for judgment as a matter of
law.10
In addressing this argument, we need not answer the vexed
question posed by the Village’s brief: “What is Race?”11 We do,
however, need to resolve a narrower issue: whether “Hispanic” is a
“race” for purposes of § 1981 and Title VII.
municipal employer voided the results of their promotional examination due to
race, even if the employer intended to offer a second promotional examination
that might also have led to the promotion of white and Hispanic firefighters).
Nonetheless, we need not address this argument, as we conclude below that
Bermudez and Barrella belong to different races for purposes of § 1981 and Title VII.
Defendants also raise this argument in challenging the District Court’s
10
denial of summary judgment. In general, we will not consider an appeal from a
denial of summary judgment, which does not qualify as a “final decision” for
purposes of 28 U.S.C. § 1291, see Ortiz v. Jordan, 562 U.S. 180, 188 (2011), and
which is in any case unappealable following a trial on the merits, id. at 183‐84. We
have recognized an exception to this rule, however, “where the district court’s
error was purely one of law.” Stampf v. Long Island R.R. Co., 761 F.3d 192, 201 n.2
(2d Cir. 2014) (internal quotation marks omitted). But that exception does not
apply here, because defendants raise both legal and fact‐based challenges to the
denial of summary judgment. See, e.g., Village Br. 20‐23 (challenging the
sufficiency of the evidence); see also Stampf, 761 F.3d at 201 n.2 (noting that purely
legal questions do not “typically involve” disputes about “why an action was
taken” (internal quotation marks omitted)). Moreover, to the extent that
defendants’ summary judgment arguments do raise pure questions of law, we
fully consider them in the context of defendants’ motions for judgment as a matter
of law.
11 Village Br. 4.
11
1. “Hispanic” in Common Usage
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.12 The Census Bureau, following standards issued by the
Office of Management and Budget (“OMB”), treats “Hispanic or
Latino” as an ethnicity, the members of which may belong to any
race.13 This bureaucratic definition, however, often fails to resonate
with Hispanics themselves, who may hail from societies with quite
different notions of racial identity.14 Nor is this definition entirely
Such confusion has been enduring. See McCleskey v. Kemp, 481 U.S. 279,
12
316 n.39 (1987) (“[I]n our heterogeneous society the lower courts have found the
boundaries of race and ethnicity increasingly difficult to determine.”).
13 See Hispanic Origin, U.S. Census Bureau (July 25, 2013),
http://www.census.gov/topics/population/hispanic‐origin/about.html. The Census
recognizes five races: “White,” “Black or African American,” “American Indian or
Alaska Native,” “Asian,” and “Native Hawaiian or Other Pacific Islander.” Race,
U.S. Census Bureau (July 8, 2013), http://www.census.gov/topics/population
/race/about.html. The government has differentiated “race” from “ethnicity” at
least since Directive 15, issued by OMB in 1977. OMB’s 1997 race and ethnicity
standards use the same distinction. See Karen Humes & Howard Hogan,
Measurement of Race and Ethnicity in a Changing, Multicultural America, 1 Race &
Soc. Probs. 111, 119 & n.5 (2009) (article by Census Bureau professionals).
See Nat’l Research Council, Multiple Origins, Uncertain Destinies:
14
Hispanics and the American Future 41 (Marta Tienda & Faith Mitchell eds., 2006)
(“Multiple Origins”). Puerto Rico provides one example of the potential
absurdities generated by the imposition of North American racial taxonomies on
Hispanic communities. After the United States acquired Puerto Rico in 1898, the
percentage of Puerto Ricans classified as “white” grew with each decade of
colonial rule, so that North American commentators hypothesized that the
12
intuitive to the mainstream media, which sometimes identifies
“Latinos” with “blacks,”15 and at other times rounds “Hispanic” to
“white.”16 In response to this enduring confusion, the Census Bureau
island’s black population was disappearing (whereas Puerto Ricans were perhaps
simply learning the hard consequences of being identified as non‐white in the
United States). For sources, see José A. Cabranes, Citizenship and the American
Empire 98 n.475 (1979) (“It is to be observed that while the census taken in 1887
shows a black population of 76,985, and that taken in 1897 reduces the figure to
75,824, the census of 1899 further reduces the figure to 59,390. If this decrease
should continue for a number of years, the black race would eventually disappear
from Porto Rico . . . . This is the only island in all the West Indies where the white
population is so overwhelmingly in the majority. . . . In 1910 the colored
population was 34.5 per cent of the whole; in 1920 it had declined to 27.0 per
cent.” (quoting 22 Encyclopedia Americana 403 (1939))).
In the 1950s, a growing recognition of the unreliability of Puerto Rico’s
racial Census data, as well as the Puerto Rican government’s conviction that racial
categorization was counterproductive, led the Census Bureau to stop collecting
information about race in Puerto Rico altogether. (The practice resumed with the
2000 Census.) See Jorge Duany, The Puerto Rican Nation on the Move: Identities on the
Island and in the United States 252‐53 (2002); Mara Loveman & Jeronimo O. Muniz,
How Puerto Rico Became White: Boundary Dynamics and Intercensus Racial
Reclassification, 72 Am. Soc. Rev. 915, 935 (2007).
Debates about affirmative action, for instance, often merge “black” and
15
“Hispanic” into “minority.” See, e.g., Ford Fessenden & Josh Keller, How Minorities
Have Fared in States with Affirmative Action Bans, N.Y. Times (June 24, 2013),
http://www.nytimes.com /interactive/2013/06/24/us/affirmative‐action‐bans.html.
16 This tendency surfaced, for instance, in coverage of Ricci v. DeStefano,
557 U.S. at 557, in which the plaintiffs were eighteen firefighters, whom media
reports often described as simply white, even though one of the plaintiff
firefighters was Hispanic. See, e.g., Robert Barnes, Justices Rule in Favor of White
Firefighters in Racial‐Bias Case, Wash. Post (June 30, 2009),
http://www.washingtonpost.com/wp‐dyn/content/article/2009/06/29
/AR2009062901608.html. Academic discussion of the case sometimes makes the
13
is now considering whether to abandon separate taxonomies of
“race” and “ethnicity” altogether: the 2020 Census may instead ask
respondents to select the “categories” to which they belong.17 Small
wonder, then, that the parties in this case have struggled with
whether, or in what sense, Bermudez might be both white and
Hispanic.
Compounding the confusion, the relevant terminology has
changed substantially over time. In 1930, but neither before nor since,
the Census counted the “Mexican” race.18 It was not until the 1950s,
same elision. See, e.g., Reva B. Siegel, Foreword: Equality Divided, 127 Harv. L. Rev.
1, 52 (2013).
See D’Vera Cohn, Census Considers New Approach to Asking About Race—
17
By Not Using the Term at All, Pew Research Ctr. (June 18, 2015),
http://www.pewresearch.org/fact‐tank/2015/06/18/census‐considers‐new‐
approach‐to‐asking‐about‐race‐by‐not‐using‐the‐term‐at‐all.
18 Until 1930, Mexicans had been presumed to be white. Enumerators for
the 1930 Census, however, were instructed that “all Mexican laborers are of a
racial mixture difficult to classify”; at the same time, Mexicans who were
“definitely white, Negro, Indian, Chinese, or Japanese” were to be counted in
those respective categories. After the 1930 Census, Mexican‐Americans—backed
by the Mexican government—successfully lobbied to eliminate the “Mexican”
category, largely because many civil rights, including the right to become an
American citizen, depended on whiteness. See Humes & Hogan, ante note 13, at
117; cf. Morrison v. People of State of Cal., 291 U.S. 82, 85 (1934) (noting that “[t]he
privilege of naturalization is confined to aliens who are ‘free white persons, and
to aliens of African nativity and to persons of African descent,’” a definition that
excluded people of Chinese, Japanese, Indian, American Indian, and Filipino
descent (quoting 8 U.S.C. § 359)); id. at 95 n.5 (“There is a strain of Indian blood in
many of the inhabitants of Mexico as well as in the peoples of Central and South
America. . . . Whether persons of such descent may be naturalized in the United
States is still an unsettled question.”).
14
however, that the federal government consistently started tracking
other Spanish‐heritage groups, under the denomination of “persons
of Spanish surname”19—a term that seems workable only if one
ignores the possibility of intermarriage or the prevalence of “non‐
Spanish” surnames in Spanish‐speaking countries.20 As a result,
many writers quickly adopted alternative terms that remain current
today: “Hispanic” and “Latino.”21
The stakes of Mexican‐Americans’ “whiteness” were evident in a seminal
Fourteenth Amendment case, Hernandez v. Texas, 347 U.S. 475, 479 (1954), which
found that “persons of Mexican descent constitute[d] a separate class in Jackson
County, [Texas,] distinct from ‘whites,’” whose systematic exclusion from juries
was unconstitutional.
For a summary of the Census Bureau’s protean efforts to classify
19
Hispanics, see the Appendix to this opinion. We note here that in the 1950 and
1960 Censuses, the federal government tracked only “white persons of Spanish
surname.” In other words, when Title VII was enacted in 1964, “Hispanics” were
presumptively white.
20 For example, the Chilean patriot Bernardo O’Higgins; the Dublin‐born
governor of Spanish Louisiana, Alejandro O’Reilly (who also designed the
fortifications of San Juan, Puerto Rico); Vicente Fox, the former President of
Mexico; and any number of Argentine presidents, including Arturo Frondizi,
Néstor Kirchner, and Mauricio Macri—not to mention the Catholic Church’s first
Latin American pope, Jorge Bergoglio. The use of Spanish surnames for purposes
of group identification was already under attack by the early 1950s. See Hernandez,
347 U.S. at 480‐81 (using “persons with Mexican or Latin American surnames” to
draw demographic conclusions); id. at 480 n.12 (“The State challenges any reliance
on names as showing the descent of persons in the County. However, just as
persons of a different race are distinguished by color, these Spanish names
provide ready identification of the members of this class.”).
The choice between “Hispanic” and “Latino” occasionally provokes
21
anxiety. See Nate Cohn, Speaking of Identity: Choosing Between Latino and Hispanic,
15
N.Y. Times (May 23, 2014), http://www.nytimes.com/2014/05/24/upshot/speaking‐
of‐identity‐choosing‐between‐latino‐and‐hispanic.html. As we have previously
observed, the terms reflect “nuanced differences of perspective” regarding
personal or ethnic identity. Latino Officers Ass’n, N.Y., Inc. v. City of New York, 196
F.3d 458, 460 n.1 (2d Cir. 1999). “Hispanic” emphasizes links to the language,
people, or culture of Spain. “Latino” avoids that connection to the “Mother
Country” and points instead to “Latin” America, a geographic entity fostered,
ironically enough, by French imperialists who hoped to gain influence over the
region by emphasizing historical and linguistic ties between France and the
former colonies of Spain and Portugal. Id.
Despite occasional attempts to make one label more “correct” than the
other—see, e.g., Henry Fuhrmann, Usage: ’Latino‘ Preferred over ’Hispanic‘, L.A.
Times (July 28, 2011), http://latimesblogs.latimes.com/readers/2011/07/latino‐
preferred‐over‐hispanic‐in‐most‐cases.html—both terms have respectable
pedigrees. The Oxford English Dictionary records “Latino” as first appearing in
English in 1946, but the word does not seem to have entered widespread use until
the 1960s, see Multiple Origins, ante note 14, at 52 n.1. “Hispanic” began to be used
in its modern ethnic sense in politics and public affairs at about the same time.
See, e.g., Br. of Amicus Curiae Louis J. Lefkowitz, Att’y Gen. of State of N.Y., at 39,
Katzenbach v. Morgan, 384 U.S. 641 (1966) (Nos. 847, 877), 1966 WL 115487. (The
word itself has a much longer history in other contexts, as suggested by
institutions like the Hispanic‐American Historical Review (founded 1918) and the
Hispanic Society of America (founded 1904).) The idea that Hispanics formed a
recognizable political bloc apparently did not emerge until the 1960 presidential
election, when the Associated Press ran a two‐sentence report that Senator John F.
Kennedy had formed a national “Viva Kennedy” campaign to court “Spanish‐
speaking communities.” Kennedy Seeks Spanish Vote, N.Y. Times, Sept. 12, 1960, at
22; see also Bonnie Angelo, Bob Kennedy Tells How His Brother Did It, Newsday,
Nov. 10, 1960, at 5 (reporting the “new political development” of forming “clubs”
to court voters “of Spanish extraction”); Peter Kihss, City Spanish Vote at a Record
High, N.Y. Times, Nov. 2, 1960, at 30 (reporting Kennedy’s predicted dominance
among New York’s “Puerto Rican and Spanish‐speaking community”). Federal
courts began using both “Hispanic” and “Latino” in the early 1970s. See Officers
for Justice v. Civil Serv. Commʹn of City & Cty. of San Francisco, 371 F. Supp. 1328,
1332 (N.D. Cal. 1973) (first reported use of “Latino”); Moss v. Stamford Bd. of Educ.,
16
2. Section 1981
Despite societal confusion regarding Hispanic identity, the
existence of a Hispanic “race” has long been settled with respect to
§ 1981.22 Although that statute never uses the word “race,” the
Supreme Court has construed it as forbidding “racial” discrimination
in public or private employment.23 The Court has further defined
“racial discrimination,” for purposes of § 1981, as including
discrimination based on “ancestry or ethnic characteristics.”24
As a result, 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. Similarly, someone may
350 F. Supp. 879 (D. Conn. 1972) (Jon O. Newman, J.) (first reported use of
“Hispanic”).
For the sake of consistency, we use “Hispanic,” which Hispanics
themselves are more likely to choose (to the extent that they wish to adopt a pan‐
ethnic identity at all), and which, in any event, is entirely appropriate. See Cohn,
ante. “Hispanic” also sidesteps the need for awkward neologisms, such as
“Latin@” or “Latinx,” in the name of “gender‐neutral” language.
42 U.S.C. § 1981(a) provides in relevant part that “[a]ll persons within
22
the jurisdiction of the United States shall have the same right in every State and
Territory to make and enforce contracts . . . as is enjoyed by white citizens.”
23 See Saint Francis Coll. v. Al‐Khazraji, 481 U.S. 604, 609, 613 (1987).
24 Id. at 613.
17
belong to more than one “race” for purposes of that statute.25 For
instance, in Saint Francis College v. Al‐Khazraji, the Supreme Court
found that employment discrimination “based on the fact that [a
plaintiff] was born an Arab” constitutes racial discrimination under
§ 1981, even though “under current racial classifications Arabs are
Caucasians.”26
As defendants themselves insist, Hispanics clearly constitute
an ethnic group.27 Defendants should hardly be surprised, then, that
Consider a hypothetical white applicant whose ancestry is one‐half
25
Hispanic and one‐half Irish. That person could, in principle, bring a race‐
discrimination suit if an employer
refuses to hire him because he is Irish‐American, and instead hires
a white Italian‐American;
refuses to hire him because he is Hispanic, and instead hires a non‐
Hispanic Irish‐American; or
refuses to hire him because he is white, and instead hires a black
Hispanic.
481 U.S. at 607, 613; cf. Shaare Tefila Congregation v. Cobb, 481 U.S. 615,
26
616‐17 (1987) (holding that Jews may bring a claim against non‐Jewish whites
under 42 U.S.C. § 1982, which forbids racially discriminatory interference with
property rights).
27 The Supreme Court has treated “Latinos” as an ethnic group in, for
example, Hernandez v. New York, 500 U.S. 352, 355 (1991) (plurality). Hernandez
involved a claim that a state prosecutor had “exercised peremptory challenges to
exclude Latinos from the jury by reason of their ethnicity.” Id. Because Hernandez
was part of the line of cases flowing from Batson v. Kentucky, 476 U.S. 79 (1986), it
hinged on whether the prosecutor’s peremptory strikes “violate[d] the principle
of race neutrality.” Id. at 362. Although the Hernandez plurality found that the
prosecutor had “offered a race‐neutral basis for his exercise of peremptory
18
shortly after the Supreme Court decided Saint Francis College, our
Court drew the obvious inference that discrimination against
Hispanics—or “Latins” (sic), as Judge Winter’s opinion put it—
constitutes “racial discrimination” under § 1981.28 Because § 1981 also
forbids so‐called “reverse discrimination,”29 our 1988 holding in
Albert necessarily implied that § 1981 also protects against
discrimination based on lack of Hispanic ethnicity—something we
had already assumed several years earlier.30
In short, despite defendants’ repeated attempts to confuse an
already complicated, vexed issue, it has long been settled in this
circuit that Hispanics comprise a distinct race for purposes of § 1981.
challenges,” id. at 372—implicitly treating “Hispanic” as a race—the Court
expressly declined to “resolve the more difficult question of the breadth with
which the concept of race should be defined for equal protection purposes,” id. at
371.
28 Albert v. Carovano, 851 F.2d 561, 572 (2d Cir. 1988) (en banc); see also
Rivera v. United States, 928 F.2d 592, 607 (2d Cir. 1991) (noting that § 1981
“protect[s] against discrimination on the basis not only of race, but also of
ancestry or ethnic characteristics” (internal quotation marks omitted)); Lopez v.
S.B. Thomas, Inc., 831 F.2d 1184, 1188 (2d Cir. 1987) (“There can be no question that
[§ 1981’s ban on racial discrimination] includes persons . . . who are of Puerto
Rican descent.”).
29 See McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273, 286‐87 (1976).
30 See Krulik v. Bd. of Educ., 781 F.2d 15, 21 (2d Cir. 1986).
19
3. Title VII
In contrast to our longstanding clarity with respect to § 1981,
we have not yet resolved whether Hispanics constitute a race for
purposes of Title VII. Title VII obviously affords a cause of action for
discrimination based on Hispanic ethnicity—but why?
Title VII provides, in relevant part, that “[i]t shall be an
unlawful employment practice for an employer” to take adverse
action against an employee because of that employee’s “race, color,
religion, sex, or national origin.”31 These categories—known as
“protected characteristics” or “protected classes”—are not mutually
exclusive. In particular, claims based on race and national origin
“may substantially overlap or even be indistinguishable depending
on the specific facts of a case.”32
As a result, courts and litigants alike have struggled with the
proper characterization of claims based on Hispanicity. Most courts
have assumed that Hispanics constitute a “protected class” but
without saying whether that protection derives from race or national
origin.33 Others have declared expressly that the underlying rationale
31 42 U.S.C. § 2000e‐2(a).
32 Deravin v. Kerik, 335 F.3d 195, 201 (2d Cir. 2003).
33 See, e.g., De la Cruz v. N.Y. City Human Res. Admin. Dep’t of Soc. Servs., 82
F.3d 16, 20 (2d Cir. 1996).
20
is irrelevant.34 We have also recognized claims based on “Hispanic
ethnicity,” a term not used in Title VII.35
Although we have avoided the question so far, the proper
categorization of Hispanicity has important analytical implications.
Section 1981 prohibits discrimination on the basis of race but not on
the basis of national origin.36 Accordingly, if we were to treat
Hispanicity as a national origin, but not as a race, for purposes of
Title VII, plaintiffs in cases involving pro‐ or anti‐Hispanic
discrimination might in some circumstances need to present two
different factual arguments in order to invoke the distinct remedies
of that statute along with those of § 1981.37
In the present case, the District Court decided at the summary
judgment stage that Hispanic did not constitute a national origin as a
See, e.g., Alonzo v. Chase Manhattan Bank, N.A., 25 F. Supp. 2d 455, 459
34
(S.D.N.Y. 1998) (“Whether being Hispanic constitutes a race or a national origin
category is a semantic distinction with historical implications not worthy of
consideration here.”).
Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 88 (2d Cir. 2015)
35
(emphasis supplied); see also Goenaga v. March of Dimes Birth Defects Found., 51 F.3d
14, 19 (2d Cir. 1995) (describing requirements for showing “an inference of ethnic
discrimination” under Title VII).
36 Anderson v. Conboy, 156 F.3d 167, 170 (2d Cir. 1998).
Although Title VII and § 1981 overlap in many respects, there are
37
significant differences with respect to their statutes of limitations, employers’
respondeat superior liability, the cognizability of claims against individuals (as
opposed to organizations), and whether a plaintiff must show that discrimination
was intentional. See Patterson, 375 F.3d at 225‐27.
21
matter of law.38 At the same time, the District Court “assumed as a
matter of law that Hispanic was a type of race.”39 Later, however, the
Court reversed course and determined that the existence of a
Hispanic “race” was a question of fact to be decided by the jury.40
We disagree with the District Court’s ultimate decision to treat
the existence vel non of a Hispanic “race” as a question of fact. The
meaning of the word “race” in Title VII is, like any other question of
statutory interpretation, a question of law for the court.41 Here,
however, the District Court’s error was harmless, because the jury
reached the same conclusion as we do today: that discrimination
based on ethnicity, including Hispanicity or lack thereof, constitutes
racial discrimination under Title VII.
We reach this conclusion 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
38 See Barrella, 43 F. Supp. 3d at 145.
39 Id.
40 See id. at 170, 172.
See, e.g., Gen. Elec. Co. v. Gilbert, 429 U.S. 125, 133 (1976) (defining
41
“discrimination”), superseded by statute on other grounds, Pregnancy Discrimination
Act of 1978, Pub. L. 95‐555, § 1, 92 Stat. 2076; McMenemy v. City of Rochester, 241
F.3d 279, 284 (2d Cir. 2001); Simonton v. Runyon, 232 F.3d 33, 36 (2d Cir. 2000)
(defining “sex” under Title VII).
22
statutes.42 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. In Malave v. Potter
(2003), for instance, we implicitly acknowledged the viability of a
Title VII race‐discrimination claim based on Hispanic ethnicity.43
Similarly, in Krulik v. Board of Education (1986), we assumed the
viability of a Title VII claim for intentional racial discrimination
based on the plaintiff’s status as “white, Jewish, and/or not
Hispanic.”44 The Supreme Court has similarly assumed that Title
VII’s definition of race encompasses ethnicity.45
To be clear, 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
See, e.g., Tolbert v. Smith, 790 F.3d 427, 434 (2d Cir. 2015); Wiercinski v.
42
Mangia 57, Inc., 787 F.3d 106, 113 (2d Cir. 2015); Choudhury v. Polytechnic Inst. of
N.Y., 735 F.2d 38, 44 (2d Cir. 1984).
43 320 F.3d 321, 324 (2d Cir. 2003).
44 781 F.2d at 21.
See Local 28 of Sheet Metal Workers’ Int’l Ass’n v. E.E.O.C., 478 U.S. 421, 464
45
n.37 (1986) (plurality opinion) (discussing a potential Title VII claim of
“preferential treatment to blacks and Hispanics based on race”); cf. Burlington N.
& Santa Fe Ry. Co. v. White, 548 U.S. 53, 63 (2006) (“The antidiscrimination
provision [of Title VII] seeks a workplace where individuals are not discriminated
against because of their racial, ethnic, religious, or gender‐based status.”
(emphasis supplied)).
23
each case.46 We hold only that for purposes of Title VII, “race”
encompasses ethnicity, just as it does under § 1981.47
See, e.g., United States v. Brennan, 650 F.3d 65, 134 (2d Cir. 2011) (treating
46
“Hispanic” as a national origin); Stern v. Trustees of Columbia Univ., 131 F.3d 305,
313 (2d Cir. 1997) (same).
We recognize that the Executive Branch may disagree with our
47
interpretation. As we noted above, the federal government generally treats
“Hispanic” as a national origin, not as a race. For instance, OMB guidelines
require the Census Bureau and other federal agencies to classify “Hispanic” as a
national origin. See ante note 13 and accompanying text. Similarly, although the
EEOC has not adopted a definition of race for purposes of Title VII, it generally
follows OMB in treating “Hispanic” as a national‐origin category. See EEOC
Compliance Manual § 15‐II.
At the same time, the EEOC has recognized that discrimination based on
ancestry can qualify as racial discrimination under Title VII; the EEOC has also
noted the possibility of “considerable overlap” between “race” and “national
origin” categories. Id. Moreover, the EEOC has suggested that discrimination
complaints involving Hispanics may implicate race. See, e.g., id. (noting that “a
discrimination complaint . . . by a dark‐skinned Latino” might “implicate race,
color, and national origin”); id. § 15‐V (discussing a hypothetical “race/national
origin” claim by a Hispanic); id. § 607.2 (noting that an employer might
acknowledge, as part of an affirmative‐action plan, that “race and national origin
played a part in” selecting a “Hispanic male” instead of an “Anglo male”).
In any case, we need not grapple with these nuances of Executive Branch
practice. No party has argued that the Government’s reading of Title VII is
controlling; and the EEOC’s interpretation is entitled at most to so‐called Skidmore
deference—i.e., “deference to the extent it has the power to persuade.” Townsend
v. Benjamin Enters., Inc., 679 F.3d 41, 53 (2d Cir. 2012); see Univ. of Tex. Sw. Med.
Ctr. v. Nassar, 133 S. Ct. 2517, 2533 (2013); Barrows v. Burwell, 777 F.3d 106, 109 n.6
(2d Cir. 2015) (“[U]nder so‐called ‘Skidmore deference,’ we give effect to an
agency’s non‐legislative interpretation of a statute to the extent we find it
persuasive.” (internal quotation marks omitted) (citing Skidmore v. Swift & Co., 323
U.S. 134, 140 (1944))).
24
4. Defendants’ Rule 50 Motions for Judgment as a Matter of Law
We now apply these conclusions to the present case. We
review de novo a district court’s decision whether to grant a motion
for judgment as a matter of law pursuant to Rule 50 of the Federal
Rules of Civil Procedure.48 Where, as here, a jury has returned a
verdict in favor of the non‐movant, a district court may grant a Rule
50 motion “only if the court, viewing the evidence in the light most
favorable to the non‐movant, concludes that a reasonable juror
would have been compelled to accept the view of the moving party.”49
That is not the case here. Defendants offer three arguments on
appeal as to why the District Court erred in denying them judgment
as a matter of law: (1) “Hispanic” is not a race as a matter of law; (2)
even if “Hispanic” is a race as a theoretical matter, it was not shown
at trial that Bermudez and Barrella are members of different races;
and (3) Hardwick should in any case be protected by qualified
immunity, because it was not clearly established in 2010 that
Bermudez and Barrella belonged to different races as a matter of law.
Each argument fails. As we have just established, Hispanics
constitute a race as a matter of law, under both § 1981 and Title VII.
And the evidence presented at trial unambiguously showed that
Hardwick considered Bermudez, but not Barrella, to be Hispanic.
Hardwick repeatedly identified Bermudez as Hispanic or Latino, and
48 Cash v. Cty. of Erie, 654 F.3d 324, 332 (2d Cir. 2011).
49 Id. at 333 (emphasis in original; internal quotation marks omitted).
25
he frequently referred to him as the Village’s “first Hispanic police
chief.”50 Furthermore, although Bermudez self‐identified as “white,”
he also described himself as “Hispanic.”51 Barrella, for his part,
described himself as “White of Italian descent,” and there is no
indication that anyone ever considered him to be Hispanic.52
Accordingly, the jury had ample justification for concluding that
Barrella and Bermudez belonged to different “races” for purposes of
§ 1981 and Title VII.53
Finally, we reject Hardwick’s qualified‐immunity argument,
which contends—rather incredibly—that it was “objectively
reasonable” for him to believe in 2010 that federal law did not forbid
discrimination based on Hispanic ethnicity.
As is well known, “[t]he doctrine of qualified immunity shields
officials from civil liability so long as their conduct does not violate
See Barrella Br. 9‐10, 12, 40; see also J.A. 3189 (recounting Hardwick’s
50
testimony that he “kn[e]w that [Bermudez] was Hispanic”); J.A. 3188 (noting
Hardwick’s acknowledgment that Bermudez is “a White Latino male”); see also
Hardwick Reply Br. 13‐14 (“Hardwick has never claimed that he was unaware
that Bermudez was Hispanic.”).
51 Village Br. 41.
52 See, e.g., J.A. 3141. Defendants’ repeated insistence that Barrella “fail[ed]
to establish his own race,” e.g., Village Reply Br. 25, is baseless.
Because the parties agree that Bermudez is Hispanic—even if they
53
contest the significance of that designation—we need not decide whose definition
of “Hispanic” matters. Cf. Jana‐Rock Constr., Inc. v. N.Y. State Dep’t of Econ. Dev.,
438 F.3d 195, 200 (2d Cir. 2006) (noting that federal and New York law define
“Hispanic” differently).
26
clearly established statutory or constitutional rights of which a
reasonable person would have known.”54 The determination of
qualified immunity depends both on the specific facts of an official’s
actions—e.g., “what situation confronted [him], what acts he
performed, and his motivation in performing those acts”—and on the
clarity of the legal rules governing that particular conduct.55
This case presents many knotty legal and factual issues. For
purposes of qualified immunity, however, the question is simple. The
jury found that Hardwick appointed Bermudez rather than Barrella
because the former was “a White person of Hispanic origin” and the
latter was “a White person of Italian origin.”56 Would a reasonable
official in Hardwick’s position have known that such intentional
discrimination against non‐Hispanic whites violated Barrella’s rights
under federal antidiscrimination law?57
Mullenix v. Luna, 136 S. Ct. 305, 308 (2015) (internal quotation marks
54
omitted).
55 Lore v. City of Syracuse, 670 F.3d 127, 162 (2d Cir. 2012).
56 Hardwick Reply Br. 10; see J.A. 2379.
Importantly, Hardwick does not argue that the law was not clearly
57
established with respect to when intentional racial discrimination might be
permissible. For instance, he does not claim that he gave preference to a Hispanic
as part of an arguably lawful affirmative‐action program, or that he was
attempting to appeal to Hispanic voters. See Section II.B.2, post. Accordingly, we
consider qualified immunity with respect to “unjustified” racial discrimination
only.
27
The answer is plainly yes. As Hardwick acknowledges, a right
is clearly established if “the Supreme Court or the Second Circuit has
recognized the right.”58 Under that standard, it has been clear since
the Reagan Administration that § 1981 bars employers from
discriminating based on Hispanic ethnicity or lack thereof.59 Indeed,
defendants manage to obscure the clarity of established law only by
failing to cite Albert v. Carovano in any of the four briefs they
collectively submitted, despite the District Court’s citation of that
case in its opinions below.60
Pabon v. Wright, 459 F.3d 241, 255 (2d Cir. 2006) (internal quotation
58
marks omitted).
59 See Saint Francis Coll. v. Al‐Khazraji, 481 U.S. 604, 613 (1987); Albert v.
Carovano, 851 F.2d 561, 572 (2d Cir. 1988) (en banc). That the District Court
expressed some confusion about this issue does not alter the clarity of existing
law. Cf. Mangino v. Incorporated Vill. of Patchogue, 808 F.3d 951, 959 n.9 (2d Cir.
2015) (noting that multiple district‐court decisions may serve as evidence of an
ambiguity in case law only where conflicting Second Circuit precedents created
such ambiguity). Defendants point to no case suggesting that a plaintiff may not
bring a claim of discrimination based on Hispanicity under § 1981 or Title VII.
Nor did either defendant cite Saint Francis College in its principal brief.
60
We remind counsel that attorneys have an ethical obligation to “disclose to the
tribunal controlling legal authority known to the lawyer to be directly adverse to
the position of the client and not disclosed by opposing counsel.” N.Y. Rules of
Prof’l Conduct 3.3(a)(2). That duty of candor extends to an appellant’s opening
brief. See La Cucina Mary Ann, Inc. v. State Liquor Auth., 541 N.Y.S.2d 220, 220 (2d
Dep’t 1989) (“[W]e remind counsel for the appellants of his affirmative obligation
to advise the court of authorities adverse to his position . . . .”); cf. United States v.
Gaines, 295 F.3d 293, 302 (2d Cir. 2002) (observing that “failure to cite controlling
authority is at best inexcusably poor lawyering and at worst suggests counsel’s
ignorance or violation of” the rules of professional conduct (internal quotation
marks omitted)); Jorgenson v. Cty. of Volusia, 846 F.2d 1350, 1352 (11th Cir. 1988)
28
The most charitable reading of Hardwick’s assertion of
qualified immunity is that the law was unsettled with respect to Title
VII. But Title VII is irrelevant to Hardwick’s personal liability, which
stems solely from § 1981.61 And in any event, it has long been obvious
under Title VII that employers may not discriminate based on
Hispanic ethnicity, even if it has not hitherto been clearly established
that such discrimination would constitute discrimination on the basis
of race.62 In short, we conclude that the District Court correctly denied
defendants’ pre‐ and post‐verdict motions for judgment as a matter
of law pursuant to Rule 50.63
(“The appellants are not redeemed by the fact that opposing counsel subsequently
cited the controlling precedent. The appellants had a duty to refrain from
affirmatively misleading the court as to the state of the law. They were not
relieved of this duty by the possibility that opposing counsel might find and cite
the controlling precedent . . . .” (emphasis in original)).
61 See Abrams v. Dep’t of Pub. Safety, 764 F.3d 244, 255 (2d Cir. 2014) (“Since
Title VII imposes no liability on individuals, the doctrine of qualified immunity is
irrelevant to plaintiffʹs Title VII claims.” (internal quotation marks omitted)).
62 See, e.g., De la Cruz, 82 F.3d at 20.
63 Because § 1981 and Title VII provide sufficient bases for affirming the
District Court’s denial of judgment as a matter of law, we need not consider
whether NYSHRL likewise defines “Hispanic” as a race. Neither the District
Court nor the parties have suggested that NYSHRL provides any remedy or
substantive right at issue in this case distinct from those provided by § 1981 or
Title VII. Cf. Lore, 670 F.3d at 169 (“[D]iscrimination claims under the [NYS]HRL
are evaluated using the same analytical framework used in Title VII actions . . . .”).
More important, defendants forfeited any claim regarding NYSHRL’s arguably
different definition of race by failing to discuss the issue in their principal briefs.
See Norton v. Samʹs Club, 145 F.3d 114, 117‐18 (2d Cir. 1998).
29
B. The District Court’s Evidentiary Rulings
We next consider defendants’ argument that we should vacate
the District Court’s judgment and order a new trial because of several
erroneous evidentiary rulings permitting the admission of lay
opinion testimony in violation of Rule 701 of the Federal Rules of
Evidence. We agree with defendants that the District Court erred in
allowing several witnesses to speculate about Hardwick’s motivation
for various employment decisions, and that the errors warrant a new
trial.64
A party challenging a district court’s evidentiary rulings is
generally entitled to a new trial if (1) “the district court committed
errors that were a clear abuse of discretion,” and (2) those errors
“were clearly prejudicial to the outcome of the trial, where prejudice
is measured by assessing the error in light of the record as a whole.”65
As we have often explained, “‘abuse of discretion’ is a distinctive
term of art that is not meant as a derogatory statement about the
64 Defendants also challenge the District Court’s decision not to admit into
evidence 2010 U.S. Census data for Freeport. The Census data would have been
relevant, defendants argue, because it would have shown the jury that the federal
government defines “Hispanic” as an ethnicity, not a race. But as we have already
stated, Hispanics constitute a race under § 1981 and Title VII as a matter of law.
See ante Section II.A. Accordingly, the parties will have no need on remand to
present evidence on this issue.
Marshall v. Randall, 719 F.3d 113, 116 (2d Cir. 2013) (internal quotation
65
marks omitted).
30
district judge whose decision is found wanting.”66 Rather, the term
merely signifies that a district court “based its ruling on an erroneous
view of the law or on a clearly erroneous assessment of the evidence,
or rendered a decision that cannot be located within the range of
permissible decisions.”67
1. Did the District Court “Abuse Its Discretion”?
The Village argues that the District Court abused its discretion
in allowing the jury to consider unsupported lay opinion testimony
regarding Hardwick’s reasons for promoting Bermudez. The Village
objects principally to testimony by Alfred Gros and Raymond
Maguire, as well as by Anthony Miller, Shawn Randall, Debbie
Zagaja, and Michael Woodward. The Village contends that these
witnesses impermissibly speculated as to Hardwick’s motives for
various personnel decisions, in violation of Rule 701(b) of the Federal
Rules of Evidence.
Rule 701 permits a lay witness—i.e., one not testifying as an
expert—to testify “in the form of an opinion.” But as Rule 701(b)
provides, such opinion testimony is admissible only if it is “helpful to
clearly understanding the witness’s testimony or to determining a
66 United States v. Park, 758 F.3d 193, 199‐200 (2d Cir. 2014).
67 In re Sims, 534 F.3d 117, 132 (2d Cir. 2008) (internal quotation marks and
citation omitted).
31
fact in issue.”68 As we explained in Hester v. BIC Corp., Rule 701(b)
helps to protect “against the admission of opinions which would
merely tell the jury what result to reach,” rather than providing
information that would assist the jury in drawing its own
conclusions.69 In employment discrimination actions, “Rule 701(b)
bars lay opinion testimony that amounts to a naked speculation
concerning the motivation for a defendant’s adverse employment
decision.”70 Although witnesses may testify regarding “their own
observations of the defendant’s interactions with the plaintiff or with
other employees,” they may not opine as to the motives, racial or
otherwise, underlying those interactions.71
We agree with the Village that the District Court permitted the
jury to consider testimony by several witnesses that amounted to the
“naked speculation” forbidden by Rule 701(b). We focus here on the
68 Defendants do not challenge the admission of the testimony under Rule
701(a), which requires that such testimony be “rationally based on the witness’s
perception.”
69 225 F.3d 178, 181 (2d Cir. 2000) (emphasis in original). Hester was
decided on September 14, 2000, at which time Rule 701(b) used slightly different
language: “helpful to a clear understanding of the witness’s testimony or the
determination of a fact in issue.” See Fed. R. Evid. 701(b) (1987) (amended 2000).
That language remained unchanged by the 2000 amendments. The 2011
amendments, which brought the rule into its present form, were “stylistic only.”
Fed. R. Evid. 701(b) advisory committee’s note to 2011 amendments. Accordingly,
Hester’s interpretation of Rule 701(b) remains valid today.
70 Hester, 225 F.3d at 185.
71 Id.
32
testimony of Albert Gros, Freeport’s former assistant chief of police,
and Raymond Maguire, Hardwick’s former chief of staff.72
We begin with Gros, who testified that “there might have been
a component of race involved in [Hardwick’s] decision” to promote
Bermudez.73 Gros repeatedly emphasized that this statement
reflected only his “own personal opinion.”74 On further probing from
Judge Spatt, Gros elaborated that his opinion was based on observing
“the actions that [he] saw leading up to” various other promotions
that had occurred in the Village at about the same time.75 Specifically,
Gros suggested that Hardwick had recommended new heads of the
Human Resources, Public Works, and Building departments because
of their respective races and despite their lack of qualifications.76 At
the same time, Gros testified that he had no personal knowledge of
Barrella argues that defendants failed to preserve or to properly present
72
for appellate review their Rule 701(b) arguments, except possibly with respect to
the testimony of Gros. See Barrella Br. 48. That argument is meritless. Defendants’
counsel objected to the introduction of inappropriate lay opinion testimony
throughout the trial and in their Rule 50 motions. See J.A. 3445, 3447. The Village
raised these arguments again on appeal, arguing expressly that testimony by Gros
and Maguire did not comply with Rule 701. See Village Br. 28‐35.
73 J.A. 3225.
74 Id.
75 Id.
For instance, Gros testified that the new head of Human Resources
76
“couldn’t possibly be qualified to do what she was doing,” and that the only
explanation he could imagine for her being hired was “that she was a female
Hispanic.” J.A. 3225‐26.
33
any of those new hires’ qualifications or the qualifications of their
predecessors. He also testified that he was not familiar with the
responsibilities that those positions entailed or the criteria Hardwick
used in making his appointments.77
Maguire also testified that race was a motivating factor in
Hardwick’s personnel decisions.78 Like Gros, Maguire reached this
conclusion without any personal knowledge of Hardwick’s actual
reasons. Indeed, Maguire had “no firsthand knowledge whatsoever
with regard to . . . Hardwick’s thinking” in appointing Bermudez.79
Instead, Maguire based his conclusion on his “grave concerns” about
Hardwick’s decision to replace Superintendent of Buildings Joe
Madigan, who is white, with Richard Brown, who is black.80
Although Maguire initially suggested that Brown was so unqualified
that race must have played a role in his appointment, Maguire later
admitted that he was unaware of Brown’s qualifications.81
In short, the District Court permitted Gros and Maguire to
testify that Hardwick had recommended individuals for promotion
77 For instance, Gros testified that he had had “very, very little interaction”
with Hardwick and had never worked with him as assistant chief or deputy chief.
J.A. 3227.
78 J.A. 3260.
79 J.A. 3280.
80 J.A. 3262.
81 J.A. 3284.
34
based on their race, 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. Such
testimony 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.”82
2. Was the District Court’s Error Harmless?
This error was sufficiently prejudicial to warrant a new trial.
“[W]e are especially loath to regard any error as harmless in a close
case,” and this case “was factually very close.”83
Defendants presented evidence showing that Hardwick had
several non‐discriminatory reasons to prefer Bermudez over Barrella.
Most important, Hardwick and Bermudez were longtime friends and
Fire Department colleagues, while Hardwick and Barrella barely
82 We note that the District Court also may have admitted testimony in
violation of Rule 701(b) from Shawn Randall, a Freeport police officer and
president of the Police Benevolent Association, who testified that Hardwick had
favored two police officers because they were black. Like Gros and Maguire,
Randall offered unsubstantiated speculation regarding Hardwick’s motivations.
See J.A. 3303 (noting, with respect to one black police officer allegedly favored by
Hardwick, that “race must have been a factor” in her preferment because she had
unspecified “baggage”). Because the Village’s briefs never discussed Randall’s
testimony in the context of its Rule 701(b) argument, however, we do not consider
whether that testimony was in fact permissible under the Federal Rules of
Evidence.
83 Hester, 225 F.3d at 185 (internal quotation marks omitted).
35
knew each other.84 As courts have repeatedly held, federal
antidiscrimination law does not forbid an employer from making an
employment decision “based on loyalty to a friend or relative,” even
if that decision “benefit[s] the nonprotected friend or relative at the
expense of a more qualified, protected person.”85 To put it more
bluntly: neither § 1981 nor Title VII forbids favoritism, nepotism, or
cronyism, so long as it is not premised on animus against a protected
class.86 Furthermore, Hardwick repeatedly testified that it was
politically advantageous to appoint Bermudez, a Freeport native,
rather than someone who had never lived in the Village and who
apparently had no political allies there.87
See, e.g., J.A. 3151 (noting Barrella’s testimony that before taking the
84
promotional examination, he “had absolutely no relationship” with Hardwick).
85 Neal v. Roche, 349 F.3d 1246, 1251 (10th Cir. 2003).
86 See Betkerur v. Aultman Hosp. Assʹn, 78 F.3d 1079, 1096 (6th Cir. 1996);
Foster v. Dalton, 71 F.3d 52, 56 (1st Cir. 1995); Holder v. City of Raleigh, 867 F.2d 823,
825‐26 (4th Cir. 1989); see also Krulik, 781 F.2d at 21 (“Nothing in §§ 1981 or 1983
prevents a municipal supervisor from promoting those employees with whom she
prefers to work.”); DeCintio v. Westchester Cty. Med. Ctr., 807 F.2d 304, 308 (2d Cir.
1986) (holding that an employer did not engage in sex discrimination by
appointing his female “paramour” rather than qualified male applicants). Of
course, it may be that an employment practice that rewards an employer’s friends
to the detriment of strangers could theoretically have an adverse impact on
members of a protected class and thus could be actionable under Title VII. But
Barrella did not assert an adverse‐impact claim in this litigation.
See, e.g., J.A. 3197, 3218. Hardwick testified “that he did not appoint
87
[Barrella] primarily because he did not receive ‘any real noticeable
encouragement’ from any of the members of the [Village] Board of Trustees or
anybody else regarding [his] candidacy.” Barrella, 43 F. Supp. 3d at 152 (quoting
36
Barrella, for his part, offered three pieces of evidence (not
counting the impermissible lay opinion testimony), each of which
suffers from potential defects.
First, Barrella offered evidence that during Hardwick’s tenure
as mayor, the Village’s hiring disproportionately favored non‐whites.
At the most senior level, however—the hiring with which Hardwick
was most closely involved—the appointment of new department
heads actually underrepresented Hispanics and overrepresented non‐
Hispanic whites compared to Freeport’s population.88 This hardly
constitutes unambiguous evidence of bias in favor of blacks and
Hispanics.
Second, Barrella argues that he had “vastly superior
qualifications” to Bermudez.89 But that claim is overstated.90 Barrella
J.A. 3199). As Hardwick’s counsel put it, “no one gave [Hardwick] a reason to
interview Chris Barrella.” J.A. 3097.
88 Hardwick nominated 18 department heads, four of whom were Hispanic
(i.e., about 22 percent), six black (i.e., about 33 percent), and eight non‐Hispanic
white (i.e., about 44 percent). J.A. 2124. Freeport’s population is approximate one‐
third white, one‐third black, and one‐third “Hispanic.” Hardwick Br. 14.
Barrella also presented evidence that “Blacks and Hispanics constituted 96
percent of seasonal hires,” 69 percent of part‐time hires, and 61 percent of full‐
time hires in the Village during Hardwick’s tenure. J.A. 3091‐92. However,
Barrella does not suggest that Hardwick was personally involved in those hiring
decisions. See also J.A. 3166 (recording Hardwick’s testimony that he exercised
sole appointing authority only for the position of Chief of Police).
89 Barrella Br. 40.
37
and Bermudez each offered distinct advantages, and Hardwick was
entitled to weigh which he most valued. Moreover, even to the extent
that Barrella was more qualified, federal antidiscrimination 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.”91
Finally, Barrella points to Hardwick’s repeated references to
Bermudez as Freeport’s “first Hispanic” or “first Latino” police chief.
This last point raises some difficult questions of law, which we urge
the parties and the District Court to consider carefully on remand.
We begin with the obvious point that an employer need not
feign ignorance of an employee’s race to avoid violating federal
antidiscrimination law. Indeed, the Supreme Court has expressly
90 As Barrella concedes, Bermudez was legally eligible for appointment,
since both men earned one of the three highest scores on the March 2010
promotional examination. See J.A. 203.
Although Barrella had a higher test score, more degrees, and more time as
a lieutenant than Bermudez, Bermudez had served longer in the Police
Department, was a native and resident of Freeport, and had stronger ties to
Hardwick and to the Village. J.A. 107, 113. Hardwick frequently emphasized his
desire to appoint a Village resident as chief, and in fact, Police Department rules
seem to have required officers to live in the Village, although the requirement was
often honored in the breach. See J.A. 3120. Moreover, Hardwick testified that the
outgoing chief, Michael Woodward, recommended Lieutenants Bermudez and
Zagaja as his potential successors—not Barrella. J.A. 3184, 3190.
91 See Lieberman v. Gant, 630 F.2d 60, 67 (2d Cir. 1980).
38
acknowledged the lawfulness of affirmative‐action initiatives
designed to remedy past discrimination, as long as they do not
employ tools, “such as quota systems, set‐aside programs, and
differential scoring cutoffs, which utilize express racial classifications
and which prevent non‐minorities from competing for specific
slots.”92 Accordingly, an employer’s stated desire for diversity in the
workplace does not, without more, establish discriminatory intent
with respect to any particular employment decision.93
Moreover, neither § 1981 nor Title VII categorically forbids
politicians from considering an appointment’s political implications.
As the Seventh Circuit has observed, “it is not a violation of Title
VII”—or of § 1981—“to take advantage of a situation to gain political
favor.”94 Indeed, the urge of politicians to take credit for hiring or
promoting members of hitherto underrepresented communities has
Hayden v. Cty. of Nassau, 180 F.3d 42, 49 (2d Cir. 1999); accord Johnson v.
92
Transp. Agency, 480 U.S. 616, 620, 640‐41 (1987). Defendants do not argue that
Bermudez’s appointment was part of such an affirmative‐action program.
See Hayden, 180 F.3d at 48‐50; Silver v. City Univ. of N.Y., 947 F.2d 1021,
93
1022 (2d Cir. 1991).
See Henry v. Jones, 507 F.3d 558, 567 (7th Cir. 2007). Federal
94
antidiscrimination statutes are not the only part of our law to sit uneasily with
some modes of traditional politics. The Seventh Circuit recently vacated certain
counts of conviction of former Illinois governor Rod Blagojevich for trying to
“sell” a Senate seat, on the ground that prosecutors improperly conflated bribery
and extortion with ordinary political “logrolling”—a well‐established practice
than may be unethical or unwise, but which, like certain forms of ethnic politics, is
often permissible under federal law. See United States v. Blagojevich, 794 F.3d 729,
734‐38 (7th Cir. 2015), petition for cert. filed (U.S. Nov. 17, 2015) (No. 15‐664).
39
often “been a powerful means of achieving the social and political
integration of excluded groups.”95
Of course, ethnic politics is not always benign.96 A
governmental employer may not excuse otherwise unlawful
discrimination by pleading that it was simply responding to voters’
95 See Rutan v. Republican Party of Ill., 497 U.S. 62, 108 (1990) (Scalia, J.,
dissenting); see also Miller v. Johnson, 515 U.S. 900, 944 (1995) (Ginsburg, J.,
dissenting) (describing the “ethnic character” of urban politics, including the use
of ethnically “‘balanced tickets’” to ensure broad electoral appeal (quoting Nathan
Glazer & Daniel P. Moynihan, Beyond the Melting Pot: The Negroes, Puerto Ricans,
Jews, Italians, and Irish of New York City 20 (1963))). As the Supreme Court observed
in the context of the Voting Rights Act,
there are communities in which minority citizens are able to form
coalitions with voters from other racial and ethnic groups, having
no need to be a majority within a single district in order to elect
candidates of their choice. Those candidates may not represent
perfection to every minority voter, but minority voters are not
immune from the obligation to pull, haul, and trade to find
common political ground, the virtue of which is not to be slighted
in applying a statute meant to hasten the waning of racism in
American politics.
Johnson v. De Grandy, 512 U.S. 997, 1020 (1994).
See, e.g., City of Richmond v. J.A. Croson Co., 488 U.S. 469, 493 (1989)
96
(plurality opinion) (“Absent searching judicial inquiry into the justification for . . .
race‐based measures, there is simply no way of determining what classifications
are ‘benign’ or ‘remedial’ and what classifications are in fact motivated by . . .
simple racial politics.”).
40
preferences.97 Our point is only that an otherwise lawful employment
decision—one that was made for race‐neutral reasons or as part of a
lawful affirmative‐action plan—does not become unlawful merely
because the decision‐maker believed that some voters might evaluate
that decision at least partly through the lens of identity politics.
The line between legitimate politics and illegitimate racial
discrimination can be difficult to draw in practice98—which
reinforces our assessment of this case as factually close. This trial
presented inherently thorny questions of motivation, which were
further complicated by pervasive uncertainty about the definition of
race. In an otherwise confusing trial, the lay opinion testimony at
issue here presented some of the clearest claims about Hardwick’s
motives. Unsurprisingly, Barrella’s counsel emphasized that
testimony during the summation and rebuttal. The jury’s five‐day
deliberation suggests that it continued to regard this case as difficult
until the end. Accordingly, we have little trouble concluding that this
case was sufficiently close that “even the smallest error may have
See Brennan, 650 F.3d at 115 n.51; United States v. Yonkers Bd. of Educ., 837
97
F.2d 1181, 1224 (2d Cir. 1987); see generally Don Herzog, The Kerr Principle, State
Action, and Legal Rights, 105 Mich. L. Rev. 1 (2006).
98 Compare Ricci, 557 U.S. at 597, 605 (Alito, J., concurring) (condemning an
employment action as an “illegitimate” attempt “to placate a politically important
racial constituency,” but denying that he has “equat[ed] political considerations
with unlawful discrimination”), with id. at 642 (Ginsburg, J., dissenting) (“[T]here
are many ways in which a politician can attempt to win over a constituency—
including a racial constituency—without engaging in unlawful discrimination.”).
41
been enough to tilt the balance,”99 and that the prejudice caused to
defendants by the District Court’s Rule 701 rulings warrants a new
trial.
C. The Village’s Respondeat Superior Liability
Because we conclude that a new trial is required, we need not
consider the parties’ remaining arguments.100 Nonetheless, we offer
some guidance regarding one more issue that is likely to recur at
trial: whether the District Court erred in failing to instruct the jury
that a municipality may not be held liable under a theory of
respondeat superior.
The Village’s argument that Judge Spatt erred in this respect is
meritless. As the Village rightly points out, a municipality may not be
held liable under §§ 1981 or 1983 for an injury inflicted by its agents
unless “the challenged acts were performed pursuant to a municipal
99 See Hester, 225 F.3d at 185 (internal quotation marks omitted).
Namely, defendants’ arguments that the District Court erred in denying
100
defendants’ Rule 59 motion for a new trial, because the jury’s verdict was against
the weight of the evidence; that the District Court improperly coerced the jury to
render a verdict; that the District Court erred in denying remittitur; and that the
District Court awarded unreasonably high attorneys’ fees to Barrella. Similarly,
we need not consider Barrella’s argument that the District Court erred in
declining to award additional compensation to offset the negative tax
consequences of his receiving his damages for front and back pay as a lump sum.
42
policy or custom.”101 But for two reasons, that argument carries no
weight in the present case.
First, Barrella sued under both § 1981 and Title VII, the latter of
which does indeed permit respondeat superior liability.102 Since the
same substantive standards govern claims under both statutes,103 a
verdict that Hardwick intentionally discriminated against Barrella
within the meaning of § 1981 would, absent any other defenses, entail
a violation of Title VII—and, thus, respondeat superior liability for
the municipality.
Second, even under § 1981, a municipality may be held liable
for the actions of high‐ranking officials with final policymaking
authority.104 In particular, even a single adverse employment action,
“if ordered by a person whose edicts or acts may fairly be said to
represent official policy, can, by itself, support a claim against a
municipality.”105 Here, Freeport concedes that Hardwick exercised
“the sole authority to appoint a Chief of Police.”106 The Village may
101 Littlejohn, 795 F.3d at 314 (internal quotation marks omitted); see Monell
v. Dep’t of Soc. Servs., 436 U.S. 658 (1978).
See Vance v. Ball State Univ., 133 S. Ct. 2434, 2441 (2013) (discussing
102
vicarious liability under Title VII in the context of workplace harassment).
See Wiercinski, 787 F.3d at 113.
103
See Littlejohn, 795 F.3d at 315.
104
Id. (internal quotation marks omitted).
105
Village Br. 11.
106
43
therefore be held liable in the event that the jury finds that Hardwick
intentionally discriminated against Barrella on the basis of race. 107
III. CONCLUSION
To summarize, we hold as follows:
(1) The meaning of “race” for purposes of 42 U.S.C. § 1981 and
Title VII is, like other questions of statutory interpretation, a
matter of law.
(2) As a matter of law, “Hispanic” is a race for purposes of
§ 1981 and Title VII.
a. Longstanding Supreme Court and Second Circuit
precedent defines “race,” for purposes of § 1981, as
encompassing ethnicity. Accordingly, it has been
clear at least since our decision in Albert v. Carovano,
851 F.2d 561 (2d Cir. 1988) (en banc), that § 1981
protects against discrimination based on ethnicity,
including Hispanic ethnicity or lack thereof.
b. Because it has been clearly established at least since
1988 that “Hispanic” describes a race for purposes of
See Patterson v. City of Utica, 370 F.3d 322, 331 (2d Cir. 2004) (“[S]ince the
107
City concedes that its mayor is a high‐ranking official with final policymaking
authority in the municipal employment area at issue in this case, the City can,
pursuant to § 1983, be held liable for the actions of its mayor.”).
44
§ 1981, we reject Hardwick’s assertion of qualified
immunity based on his claim that it was “objectively
reasonable” for him to believe that discrimination
based on Hispanic ethnicity did not constitute racial
discrimination under federal law.
c. Under Title VII, as with § 1981, “race” encompasses
ethnicity. Accordingly, a plaintiff who alleges
employment discrimination based on Hispanic
ethnicity or lack thereof may be able to state a claim
of racial discrimination within the meaning of Title
VII.
We therefore AFFIRM the judgment of the District Court
insofar as it denied defendants’ motions for judgment as a
matter of law pursuant to Rule 50 of the Federal Rules of
Civil Procedure.
(3) The District Court erred in admitting lay opinion testimony
that impermissibly speculated as to Hardwick’s reasons for
promoting Bermudez, in violation of Rule 701(b) of the
Federal Rules of Evidence.
a. Reviewing the District Court’s evidentiary rulings
under the so‐called “abuse of discretion” standard,
we conclude that the District Court erroneously
allowed lay witnesses to speculate that racial
considerations may have influenced Hardwick’s
appointment of Bermudez.
45
b. Because this was a factually close case, we conclude
that the District Court’s error prejudiced defendants,
and that a new trial is necessary. Accordingly, we
VACATE the District Court’s judgment and
REMAND to the District Court for a new trial
consistent with this opinion.
46
Appendix: Census Treatment of “Hispanics”
The following table summarizes the various labels the Census has employed to track the
group we now call “Hispanic.” Unless otherwise specified, citations are to U.S. Census Bureau,
Measuring America: The Decennial Censuses from 1790 to 2000 (2002) (“Measuring America”).
Census Classification/Question “Hispanic” Responses Notes Citation
Year
1930 “Color or race” “Mexican” Until 1930, “Mexicans” had Measuring
been “white.” America at 59
1940 “Color or race” (None) “Mexicans” once again Measuring
became “white,” unless they America at 62, 64
were “definitely” some other
race.
“Mother tongue” Spanish First time Census tabulated Humes &
linguistic data on native‐born Hogan, ante note
Americans. 13, at 117
1950 “White population of Based on a list of 6,000 Compiled only for five states U.S. Census,
Spanish surname” Spanish surnames (AZ, CA, CO, NM, TX). Special Reports:
compiled by the Persons of
Immigration & Spanish Surname
Naturalization Service 3C‐3 (1953)
47
Census Classification/Question “Hispanic” Responses Notes Citation
Year
1960 Same as 1950 Census Census also counted “Puerto U.S. Census,
Ricans in the United States.” Special Reports:
Persons of
Spanish Surname,
at vii (1963)
1970 “Is this person’s origin or “Mexican”; “Puerto Measuring
descent—”? Rican”; “Cuban”; “Central America at 78
or South American”;
“Other Spanish”; “No,
none of these”
1980 “Is this person of “No (not Spanish/ Measuring
Spanish/Hispanic origin or Hispanic)”; “Yes, Mexican, America at 84
descent?” Mexican‐Amer., Chicano”;
“Yes, Puerto Rican”; “Yes,
Cuban”; “Yes, other
Spanish/Hispanic”
48
Census Classification/Question “Hispanic” Responses Notes Citation
Year
1990 “Is this person of Same as 1980, except that Measuring
Spanish/Hispanic origin?” “other Spanish/Hispanic” America at 91
now asked to “Print one
group, for example:
Argentinean, Colombian,
Dominican, Nicaraguan,
Salvadoran, Spaniard, and
so on.”
2000 “Is this person “No, not Measuring
Spanish/Hispanic/Latino?” Spanish/Hispanic/Latino”; America at 100
“Yes, Mexican, Mexican
Am., Chicano”; “Yes,
Puerto Rican”; “Yes,
Cuban”; “Yes, other
Spanish/Hispanic/Latino—
Print group”
49
Census Classification/Question “Hispanic” Responses Notes Citation
Year
2010 “Is this person of “No, not of Hispanic, A new instruction was added: U.S. Census, The
Hispanic, Latino, or Latino, or Spanish origin”; “NOTE: Please answer BOTH Hispanic
Spanish origin?” “Yes, Mexican, Mexican Question 5 about Hispanic Population: 2010
Am., Chicano”; “Yes, origin and Question 6 about (2011)
Puerto Rican”; “Yes, race. For this census,
Cuban”; “Yes, another Hispanic origins are not
Hispanic, Latino, or races.”
Spanish origin—Print
origin, for example,
Argentinean, Colombian,
Dominican, Nicaraguan,
Salvadoran, Spaniard, and so
on.”
50
