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‘Hispanic’ Is a Race for Discrimination Cases

NEW YORK (CN) - The Second Circuit ruled that discrimination based on Hispanic ancestry is race discrimination under federal law, but ordered a retrial for a white police officer who won $1.3 million in a race-bias case.

In May 2014, a jury found the Village of Freeport, N.Y., and its first black mayor, Andrew Hardwick, guilty of race discrimination, according to the Second Circuit's 50-page ruling.

Christopher Barrella claimed Hardwick did not appoint him as chief of police because he is a white Italian-America, and instead chose a less-qualified white Hispanic candidate, Miguel Bermudez. Barrella alleged he scored highest on a promotional exam and claimed that Bermudez scored third out of six candidates.

In his defense, Hardwick argued that Bermudez was promoted over Barrella because Hardwick knew Bermudez for a long time and he is a resident of Freeport, unlike Barrella, according to court records.

The jury awarded Barrella $1.3 million, including lost back pay, lost future pay and punitive damages.

An Eastern New York Federal Court denied Freeport and Hardwick's motion for a new trial, in which they claimed race discrimination could not occur between two white individuals.

The city and mayor also argued that testimony about Hardwick's motivations for promoting Bermudez, the town's first Hispanic police chief, over Barrella was wrongfully allowed at trial.

A three-judge panel of the Second Circuit disagreed Tuesday that race discrimination cannot happen between two people of the same race.

Hispanics are a protected class, the ruling explains, but the protection is not specifically defined as being derived from race or national origin, creating a struggle "with the proper characterization of claims based on Hispanicity."

To emphasize the long-standing history of the predicament at hand, the ruling notes that in 1930, and only that year, "Mexican" was the only Hispanic designation listed on the U.S. Census.

Nevertheless, as established by a precedent, the definition of race as it relates to discrimination includes ethnicity, allowing for racial discrimination to be based on a specific ancestry or lack thereof, the New York City-based appeals court ruled.

At trial, the lower court determined "race" was not a matter of law but a question of fact to be determined by the jury, according to the ruling.

The appeals court panel disagreed, but noted that, since the jury came to the conclusion that ethnicity falls under race for the purpose of defining race discrimination in the workplace, the error was harmless.

"This case presents many knotty legal and factual issues," Judge Jose Cabranes wrote for the panel. "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.' 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? The answer is plainly yes."

The Second Circuit upheld the lower court's decision to deny Freeport and Hardwick's motion for judgment as a matter of law.

However, the appeals court found that allowing certain testimony was an abuse of discretion and the error was big enough to tip the scale in the verdict against the village and Hardwick, which took five days of deliberation to reach.

The testimony at issue included speculation on Hardwick's motives, which only convoluted the already present and "inherently thorny questions of motivation, which were further complicated by pervasive uncertainty about the definition of race," the Second Circuit ruled.

The Second Circuit vacated the district court's denial of Freeport and Hardwick's motion for a new trial because of the questionable testimonial, and ordered a retrial.

Freeport is located on the South Shore of Long Island and has a population of 43,000.

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