Alan Schorr’s Case of The Week ending September 7, 2012

El-Din v. New York City Administration For Children’s Services, 2012 WL 3839344 (S.D.N.Y., September 5, 2012)

This week’s Case of The Week highlights the interesting issue of what constitutes “race” in a race discrimination claim. It also prompted thought about practice pointers on the many advantages of using §1981 in termination cases involving race over Title VII, and, in some cases, even the New Jersey Law Against Discrimination.

Amir M. Galal El-Din, a supervisor, brought a discrimination claim against the New York City Administration for Children’s Services alleging, among other things, that he was demoted because of his “Arab” race. The claims were brought under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §1981, and the New York City Human Rights Law. The Defendant filed a motion to dismiss. Part of the motion dealt with the lack of specificity of Mr. El-Din’s description of his race. While he alleged that he publicly identifies himself as “Arab”, the Defendant argued that he did not identify his race. He also alleged that various co-workers at ACS referred to him as a “terrorist”. For purposes of Twombly and Iqbal, the District Court found that Mr. El-Din had sufficiently pled race discrimination.

The definition of “race” under §1981 is actually quite broad, and encompasses most claims that one might think more appropriately to be national origin, ethnicity, or religion. For example, “Jews” and “Arabs” are both races for purposes of §1981. Shaare Tefila Congregation v. Cobb, 481 U.S. 615 (1987). The reason is that while Title VII is part of the Civil Rights Act of 1964, 42 U.S.C. §1981 was part of the Civil Rights Act of 1866 and the Voting Rights Act of 1870, and the definition of race was much broader in 1870 than it was in 1964. Accordingly, categories such as Finns, Arabs, Chinese, and even Gypsies are considered to be “races” for purposes of §1981. See Saint Francis College v. Al-Khazraji, 481 U.S. 604 (1987).

Political correctness and the desire not to offend can create unnecessary legal difficulties when bringing a race discrimination action. Terms like “African-American” and “Asian” to describe race are extremely ambiguous. There are millions of Africans that are Caucasian. If a Caucasian from South Africa or Morocco immigrates to America, he is technically “African-American”. Similarly, a dark-skinned man from Jamaica can hardly be called an “African-American”. The term “Asian” is even more amorphous. Israel, Saudi Arabia, Iran, and most of Russia are part of Asia, and their inhabitants are Asians. Certainly nobody would mistake by sight an Indian native for a Chinese native and vice versa.

Although it may seem awkward, specific designations such as “Black”, “Chinese” and “Eastern Indian” will much more effectively define the parties, and it will also make it much easier to establish differential and disparate treatment. I remember one trial where I was representing a gentleman from Sri Lanka who had identified his race as “Asian/Indian”. At trial, the Defendant tried to demonstrate a lack of discriminatory animus by demonstrating the number of “Asian” employees that had been promoted. But all of the promotions had been given to persons who were Chinese, Japanese or Korean. The Federal District Judge properly ruled that “Indians” were a race separate from Chinese, Japanese and Koreans, and barred the testimony.

The reason why I highlight this case is because if the circumstances are proper for the use of 42 U.S.C. §1981, it has several advantages over Title VII, and even the NJLAD. First, unlike Title VII, there is no requirement under §1981 to file with the EEOC or any State agency. Second, the statute of limitations under §1981 is four years, and therefore can be used in cases where the statute of limitations has run under the NJLAD. Jones v. R.R. Donnelley & Sons Co., 541 U.S. 369 (2004). §1981 claims can be brought in State Court, although they can also be removed under Federal question jurisdiction. Furthermore, unlike Title VII, §1981 has no statutory caps on damages and still provides fee-shifting and punitive damages.

While §1981 is limited to claims involving race, as discussed above, its definition of race is quite broad. To have standing to sue under Section 1981, a plaintiff need only demonstrate that the discriminating person or entity interfered with the plaintiff’s ability to enter into an employment contract on the basis of race. §1981 cannot be used, however, for many cases of disparate treatment or harassment, as it cannot be based on employment procedures that have a disparate impact. Rather, §1981 is only applicable to disparate treatment claims caused by intentional racially motivated bias. General Building Contractors Ass’n, Inc. v. Pennsylvania, 458 U.S. 375, 382-85 (1982).

This week’s decision in El-Din v. New York City Administration for Chldren’s Services does not break any new ground or cite any new rule of law, but it serves as an excellent reminder of some litigation options that are sometimes overlooked.

Plaintiff’s counsel: Marjorie Mesidor and Jessenia Maldonado, Phillips & Phillips

Defendant’s counsel: Shakera Khandakar, New York City Office of Corporation Counsel

Judge: Paul A. Engelmayer, U.S.D.J.