Friday, December 11, 2015

Court Recognizes Claim of National Origin Discrimination Based on Non-Hispanic Status and Rejects Heightened Proof Standard for Non-Minority Discrimination Claims

                Among Title VII’s less-used provisions is its prohibition of discrimination on the basis of “national origin”, but the New Mexico Court of Appeals’ recent decision in Garcia v. Hatch Valley Pub. Schs. may breathe new life into the hoary prohibition.  No. 33,310, 2015 N.M. App. LEXIS 120 (N.M. Ct. App. Nov. 16, 2015).  In Garcia, the New Mexico Court of Appeals addressed two questions under the New Mexico Human Rights Act which the Court held “tracks Title VII”.   Id.  The questions were: 1) is “non-Hispanic” a protected category; and 2) are plaintiffs in “reverse discrimination” cases subject to a heightened standard for making out a prima facie case of discrimination?  Id.  The Court held “non-Hispanic” to be a protected category and rejected the contention that “reverse discrimination” cases, in terms of burdens of proof, should be treated differently than cases brought by African-Americans and Hispanics.

                In addressing the first question, the Court examined the history of the use of “national origin” in discrimination claims.  The Court noted that the Supreme Court originally defined the term as the “country where a person was born, or…from which his or her ancestors came.”  Id. quoting Espinoza v. Farah Mfg. Co., 414 U.S. 86, 88 (1973).  Despite this relatively narrow definition, the Court noted that the Espinoza Court noted that refusing to hire individuals of a “Spanish-speaking background” constituted national origin discrimination.  Garcia, 2015 N.M. App. LEXIS 120 at *7, quoting Espinoza, 414 U.S. at 92, n5, 95.  Examining subsequent caselaw from around the nation, the Court explained that “the concept of national origin…embrace[s] a broader class of people” and is “better understood by reference to certain traits or characteristics that can be linked to one’s place of origin, as opposed to a specific country or nation.”  Garcia, 2015 N.M. App. LEXIS 120 at *8, quoting Kanaji v. Children’s Hosp. of Phila., 276 F. Supp. 2d 399, 401-02 (E.D. Pa. 2003); see also  Pejic v. Hughes Helicopters, Inc., 840 F.2d 667, 672-73 (9th Cir. 1988) (holding that national origin discrimination could include discrimination based on membership in ethnic groups); Beltran v. Univ. of Tex. Health Sci. Ctr., 837 F. Supp. 2d 635, 641 (S.D. Tex. 2011) (stating that "Title VII prohibits employment discrimination against any national origin group, including larger ethnic groups, such as Hispanics" (emphasis, internal quotation marks, and citation omitted). 

                In Garcia, the plaintiff had accused the defendant of discriminating against him on the basis of his national origin, alleging that he was German-descended and non-Hispanic.  Garcia, 2015 N.M. App. LEXIS 120 at *1.  The lower court found that the employer had no knowledge of the plaintiff’s German descent – and so could not have discriminated against him on that basis – but failed to consider whether he had been discriminated against based on being “non-Hispanic”.  Id.  In reversing the lower court’s decision, the Court recognized that “[c]lassifications such as Caucasian, white, and non-Hispanic have been widely accepted as protected in cases involving national origin discrimination claims.”  Id. at *8, citing Turney v. Hyundai Constr. Equip. USA Inc., 482 F. App'x. 259, 260 (9th Cir. 2012) (holding that the plaintiff who identified as Caucasian "belongs to a protected class for purposes of his national origin discrimination claim because Title VII applies to any racial group, whether minority or majority" (internal quotation marks and citation omitted)); Hawn v. Exec. Jet Mgmt., Inc., 546 F. Supp. 2d 703, 711, 717 (D. Ariz. 2008) (holding that the plaintiff who identified his national origin as "Caucasian American of European descent" was a member of a protected class); Mohr v. Dustrol, Inc., 306 F.3d 636, 639-40 (8th Cir. 2002) (treating non-Hispanic as a protected class and reversing summary judgment on the plaintiff's race and national origin discrimination claims), abrogated on other grounds by Desert Palace, Inc. v. Costa, 539 U.S. 90, 123 S. Ct. 2148, 156 L. Ed. 2d 84 (2003); Stern v. Trustees of Columbia Univ., 131 F.3d 305, 306, 312 (2d Cir. 1997) (finding that a "white American male of Eastern European origin" satisfied a prima facie case for national origin discrimination); Cameron v. St. Francis Hosp. & Med. Ctr., 56 F. Supp. 2d 235, 238-39 (D. Conn. 1999) (memo.) (accepting classification of "white, non-Hispanic male of Scottish/European origin" as protected class for national origin discrimination claim (internal quotation marks omitted)).

                Finding that the plaintiff’s contention that he was “non-Hispanic” fell within the meaning of a “national origin” under Title VII, the Court addressed whether the plaintiff had satisfied the elements of a prima facie case.  In so doing, the Court noted that, as a technical matter, the standard set forth by the Supreme Court in McDonnell Douglas Corp. v. Green, that a plaintiff demonstrate that “he belongs to a racial minority” would foreclose a claim of discrimination brought by a non-minority.  Garcia, 2015 N.M. App. LEXIS 120 at *11 to *12. Relying on McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273 (1976) the Court found that Title VII should not be interpreted to foreclose claims of “reverse discrimination” and moved instead to the more difficult question of whether such claims were subject to a heightened standard.   In so doing, the Court identified essentially two different approaches to this question.
a.       The Heightened Standard Approach

The Court noted that some courts have held that, in cases of “reverse discrimination” the plaintiff can make out a prima facie case only if she can show “background circumstances that support the suspicion that the defendant is the unusual employer who discriminates against the majority.”  Garcia, 2015 N.M. App. LEXIS 120 at *13 quoting Parker v. Baltimore & Ohio R.R. Co., 652 F.2d 1012, 1017-18 (D.C. Cir. 1981).  This approach, with minor differences, is followed by the United States Court of Appeals for the District of Columbia, the Sixth Circuit, and the Eighth Circuit, as well as the states of New Jersey and Ohio.  Woods v. Perry, 375 F.3d 671, 673 (8th Cir. 2004); Murray v. Thistledown Racing Club, Inc., 770 F.2d 63, 67 (6th Cir. 1985); Parker, 652 F.2d at 1017 (D.C. Cir. 1981); Erickson v. Marsh & McLennan Co., 117 N.J. 539, 569 A.2d 793, 799 (N.J. 1990); Jones v. MTD Consumer Group, Inc., 32 N.E.3d 1030 (Ohio 2015). 

Although following the heightened standard approach, the Tenth Circuit has created a “modified” background and circumstances test.  This test permits the plaintiff to make a prima facie case either through the “background circumstances” described above or by showing that there is “indirect evidence sufficient to support a reasonable probability, that but for the plaintiff’s status [as a member of the majority] the challenged [action] would have favored the plaintiff.”   Garcia, 2015 N.M. App. LEXIS 120 at *15, quoting Notari v. Denver Water Dep’t, 971 F.2d 585, 589 (10th Cir. 1992).

The Garcia Court criticized the heightened standard approach for imposing a higher standard on majority plaintiffs than minority plaintiffs, and would require the Court to “determine which groups are socially favored andd which are socially disfavored.”  Garcia, 2015 N.M. App. LEXIS at *17, quoting Collins v. Sch. Dist. of Kansas City, 727 F. Supp. 1318, 1321 (W.D. Mo. 1990).  In so holding, the Court noted that this fact was “difficult to reconcile” with the decision of the United States Supreme Court, which had adopted a broad, holistic interpretation of Title VII.  See  Furnco Const. Corp. v. Waters, 438 U.S. 567, 577, 98 S. Ct. 2943, 57 L. Ed. 2d 957 (1978) (stating that the prima facie case, as stated in McDonnell Douglas, "was never intended to be rigid, mechanized, or ritualistic" and that the "central focus of the inquiry in a [discrimination] case . . . is always whether the employer is treating some people less favorably than others because of their race, color, religion, sex, or national origin" (internal quotation marks and citation omitted)); see also McDonald, 427 U.S. at 279 n.6, 280 n.8 (1976) (holding that "Title VII prohibits racial discrimination against the white petitioners in this case upon the same standards as would be applicable were they [members of a racial minority]" and noting that the specification of the prima facie proof required under McDonnell Douglas “is not necessarily applicable in every respect to differing factual situations" (emphasis added) (internal quotation marks and citation omitted)).
b.      Rejection of the Heightened Standard

The Court noted that many courts, including the Second, Third, Fourth, Fifth, and Eleventh Circuits, have rejected the heigtened standard approach.  McGuinness v. Lincoln Hall, 263 F.3d 49, 53 (2d Cir. 2001); Bass v. Bd. of Cnty. Comm’rs, 256 F.3d 1095, 1103 (11th Cir. 2001); Byers v. Dallas Morning News, Inc., 209 F.3d 419, 426 (5th Cir. 2000); Iadimarco v. Runyon, 190 F.3d 151 (3d Cir. 1999); Lucas v. Dole, 835 F.2d 532, 533 (4th Cir. 1987).  The Third Circuit requires only that the plaintiff provide sufficient evidence “to allow a fact finder to conclude that the employer is treating her less favorably than others based upon a [protected] trait” while the Second, Fourth, Fifth, and Eleventh Circuits merely require that the plaintiff demonstrate that they belong to a protected group, whether or not they are in a “minority class”.  Garcia, 2015 N.M. App. LEXIS 120 at *20.  
c.       The Holding

The Garcia court rejected the heightened standard, and joined the Second, Third, Fourth, Fifth, and Eleventh Circuits in requiring only that the plaintiff demonstrate that he belongs to a “protected group”.  Garcia, 2015 N.M. App. LEXIS 120 at *25.  In doing so, the New Mexico Court of Appeals stated that plaintiff is not required to meet a heightened standard, as the purpose and philosophy behind Title VII holds discrimination and reverse discrimination plaintiffs to the same standards, citing  Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 273 (1986) (O'Connor, J., plurality opinion) (stating that "[r]acial and ethnic distinctions of any sort are inherently suspect and thus call for the most exacting judicial examination" and "the level of scrutiny does not change merely because the challenged classification operates against a group that historically has not been subject to governmental discrimination"); see also Bass, 256 F.3d at 1103 ("`Our constitution is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law.'") (citing Plessy v. Ferguson, 163 U.S. 537, 559 (1896) (Harlan, J., dissenting); Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 239 (1995) (Scalia, J., concurring in part) ("In the eyes of government, we are just one race here. It is American."); Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 289-90 (1978) (plurality opinion) ("The guarantee of equal protection cannot mean one thing when applied to one individual and something else when applied to a person of another color."). 

The Court went on to apply this standard.  It found that the plaintiff’s claim of discrimination based on being “non-Hispanic” was a cognizable claim of national origin discrimination, and that the evidence adduced satisfied the elements of a prima facie case.  Id. at *28 to *29.
d.      Take-Aways

As the New Mexico decision is but one decision from an intermediate appellate court from one of our fifty states, it, in essence, only underscores, the plethora of open issues in national origin discrimination cases, including:
1)      What is the standard of proof for Caucasians and/or non-Hispanics, sometimes referred to as majority litigants?
2)      What deference, if any, ought the courts give to the EEOC’s Guidelines on Discrimination Because of National Origin, 29 C.F.R. § 1606.1?
3)      When can national origin preferential treatment be treated as a bfoq?
4)      Is so-called “ethnic discrimination” national origin discrimination under the Act?
5)      After the Supreme Court’s decision in Espinoza, can alienage discrimination be successfully challenged, under Title VII or otherwise?
6)      When is “accent” discrimination recognized as national origin discrimination?
7)      When, if ever, is bi-lingual or multi-lingual discrimination or preferential treatment found to be national origin discrimination?

The New Mexico decision is welcome in that it rekindles the ongoing debate regarding the breadth of the prohibition against national origin discrimination.  Clearly, it is not the last word, and clearly many, many issues remain unresolved.  

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