Race-Based Hostile Work Environment Claims Survive Summary Judgment; Court Clarifies Scope of 42 U.S.C. § 1981

In Lamarr-Arruz & Ansoralli v. CVS Pharmacy, Inc., 15-cv-04261, 2017 WL 4280690 (S.D.N.Y. Sept. 26, 2017), the court denied defendant CVS’s motion for summary judgment on plaintiff’s hostile work environment claims under 42 U.S.C. § 1981, the New York State Human Rights Law, and the New York City Human Rights Law.

Here I will focus on the court’s discussion of the scope of § 1981.

The court explained:

Under § 1981, a plaintiff must establish two elements to prove a hostile work environment based on race. First, a plaintiff must demonstrate that the harassment was sufficiently severe or pervasive to alter the conditions of [the plaintiff’s] employment and create an abusive working environment. … Second, the plaintiff must show a specific basis for imputing the hostile work environment to the employer.

Defendant argued that it was entitled to dismissal of plaintiff Ansoralli’s claims on the ground that “the evidence has failed to show that Ansoralli is Hispanic, and thus … she cannot show that she was subjected to a hostile work environment based on her race.” Specifically, defendant argued that plaintiff did not identify as “Hispanic”, and pled that she is “guyanese and Portugese”, and that she “presented evidence that she was only discriminated against based on her national origin, as opposed to her race.”

The court disagreed, reasoning:

The distinction CVS purports to draw is irrelevant for purposes of § 1981. As the Court of Appeals for the Second Circuit recently observed in Village of Freeport v. Barrella, 814 F.3d 594, 602-06 (2d Cir. 2016), courts have struggled with the precise definition of “Hispanic.” However, the precise definition of Hispanic is not an obstacle because “ ‘racial discrimination,’ for purposes of § 1981, [includes] discrimination based on ‘ancestry or ethnic characteristics.’ ” Id. at 604-05 (quoting Saint Francis Coll. v. Al-Khazraji, 481 U.S. 604, 613 (1987)). CVS’s arguments (amazingly, given the vigor with which they are asserted) ignore “longstanding Supreme Court and Second Circuit precedent … that ‘race’ includes ethnicity for purposes of § 1981, so that discrimination based on Hispanic ancestry … constitutes racial discrimination under that statute.” Id. at 598.

Whether Ansoralli self-identifies as “Hispanic” is not dispositive of whether she was discriminated against based on her race or whether she is in fact Hispanic for purposes of § 1981.7 See id. at 605 (noting that a person can belong to more than one race for purposes of § 1981 and that what a person self-identifies as on a census form is not dispositive). The United States Census Bureau currently defines “Hispanic” as referring to “a person of Cuban, Mexican, Puerto Rican, South or Central American, or other Spanish culture or origin regardless of race.”8 While the Census Bureau treats “Hispanic” as a national origin, “race” for purposes § 1981 encompasses Hispanic “ethnicity.” See id. at 605, 607 & n.47. Accordingly, without demarcating the outer boundaries of the term “Hispanic,” a plaintiff who can at least meet the Census Bureau’s definition of “Hispanic” can establish that she is racially Hispanic for purposes of § 1981.

The court next explained how and why plaintiff met the first element of her hostile work environment claim:

Ansoralli testified that she identifies herself racially as West Indian and Spanish. Gottlieb Decl. Ex. 31 at 169, 308. Ansoralli also testified that when she told a Store Manager that she was “West Indian mixed with Spanish,” the Store Manager responded, “Oh, you’re a spick.” Gottlieb Decl. 31 at 165-66; see also Gottlieb Decl. 31 at 207 (Ansoralli testifying that Saliu called her a “spick”). Ansoralli testified that derogatory comments about “Hispanics, [her] origin, [her] people … affected her greatly.” Gottlieb Decl. 31 at 267. Contrary to CVS’s arguments, a reasonable jury could conclude that Ansoralli understands that she is Hispanic even if she does not self-identify as Hispanic (not that self-identification is dispositive for purposes of § 1981). Moreover, Ansoralli testified that Salvatore told her “that there’s a lot of niggers and spics … a lot of niggers and Spanish people is stealing in the store,” which she found offensive because she is “Spanish.” Gottlieb Decl. 31 at 313; see also Gottlieb Decl. 31 at 400 (Ansoralli testifying that she finds the term “spick” offensive “because [she is] half Spanish”). Ansoralli testified that Saliu frequently referred to CVS customers as “Spanish bitches” who “shoplift” and need to be locked up. Gottlieb Decl. 31 at 192.

Construing the evidence in the light most favorable to the plaintiffs, a reasonable jury could plainly find that Ansoralli was discriminated against because of her Spanish/West Indies ancestry, in other words, her race. See Lopez v. S.B. Thomas, Inc., 831 F.2d 1184, 1188 (2d Cir. 1987) (“There can be no question that [§ 1981’s protections] includes persons like plaintiff who are of Puerto Rican descent.”); Alvarez-Soto v. B. Frank Joy, LLC, No. CV TDC-15-1120, 2017 WL 2731300, at *2, *9 (D. Md. June 23, 2017) (referring to “Spanish-speaking employees as ‘spics’ ” supported inference of discrimination). A reasonable jury could conclude that, although Ansoralli may not self-identify as Hispanic, she is in fact Hispanic for purposes of § 1981 and that she was the target of discrimination on that basis.

CVS also contends that Ansoralli’s request to transfer back to Salvatore’s team after she had worked with Saliu undercuts any reasonable inference that she was offended by racial discrimination. The evidence shows that both Salvatore and Saliu discriminated against Ansoralli. A reasonable jury could conclude that Ansoralli viewed Salvatore as the lesser of two evils. See Guzman v. News Corp., No. 09-cv-09323 (LGS), 2013 WL 5807058, at *14 (S.D.N.Y. Oct. 28, 2013) (“Civility toward a harasser does not excuse harassment or signify subjective acceptance, particularly in an employment setting.”).

The court also held that “derogatory comments to Ansoralli during her pre-employment interview for the Market Investigator position can contribute to her hostile work environment claim”, and distinguished the present case from cases cited by defendant, which involved claims by applicants who were never hired.

As for the second element – imputing liability to CVS – the court noted, inter alia, the existence of “genuine disputes of material fact whether CVS reasonably provided the corrective measures it said it would in its Handbook.”

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