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May 3, 1982


The opinion of the court was delivered by: Getzendanner, District Judge.


Plaintiff Christine Carrillo brings this action against her former employer, Illinois Bell Telephone Co., alleging discrimination in violation of Title VII of the 1964 Civil Rights Act, 42 U.S.C. § 2000e et seq., and 42 U.S.C. § 1981. As a Hispanic female, she alleges that this discrimination was based on her sex, race and national origin. She also seeks pendent jurisdiction over state law claims of breach of contract and intentional infliction of emotional distress.*fn1

Carrillo claims that after she told her supervisors that she was pregnant, they began to subject her to harassment and discrimination, and that this led to her demotion, which was ostensibly for excessive tardiness. She contends that she was told to accept the demotion or lose her job, and that when she refused to accept the demotion, she was discharged. Lastly, she asserts that Illinois Bell has a policy requiring women employees who have recently had a child to return to work at the arbitrary decision of the company's physician, and that this discriminates against them on the basis of sex and pregnancy.

Illinois Bell has moved to dismiss, or in the alternative for summary judgment on, Carrillo's § 1981 claims, portions of her Title VII claims and her pendent state claims. For the reasons stated below, the motion is granted.

Section 1981 Claims

42 U.S.C. § 1981 provides, in relevant part, that:

  All persons within the jurisdiction of the United
  States shall have the same right . . . to make
  and enforce contracts . . . and to the full and
  equal benefit of all laws . . . as is enjoyed by
  white citizens. . . .

The statute encompasses claims of discrimination based upon race and alienage, Takahashi v. Fish & Game Commission, 334 U.S. 410, 68 S.Ct. 1138, 92 L.Ed. 1478 (1948). It does not, however, provide relief for claims of discrimination based on sex, Movement for Opportunity & Equality v. General Motors Corp., 622 F.2d 1235, 1278 (7th Cir. 1980) or based on national origin, Plummer v. Chicago Journeyman Plumbers' Local Union No. 130, 452 F. Supp. 1127, 1142 (N.D.Ill. 1978), rev'd on other grounds, 657 F.2d 890 (7th Cir. 1981), cert. denied, ___ U.S. ___, 102 S.Ct. 1710, 72 L.Ed.2d 134 (1982).

On the issue whether discrimination against Hispanics constitutes discrimination based on race or on national origin, there is a substantial divergence of opinion. Some courts have viewed such discrimination as based solely on national origin and have dismissed Hispanics' claims under § 1981. E.g. Martinez v. Bethlehem Steel Corp., 78 F.R.D. 125 (E.D.Pa. 1978); Vazquez v. Werner Continental, Inc., 429 F. Supp. 513 (N.D.Ill. 1977)*fn2; Gradillas v. Hughes Aircraft Co., 407 F. Supp. 865 (D.Ariz. 1975). The trend among the judges of this district has been to consider discrimination against Hispanics as racial discrimination. E.g. Aponte v. National Steel Service Center, 500 F. Supp. 198, 202-03 (N.D.Ill. 1980) (Moran, J.); Ridgeway v. International Brotherhood of Electrical Workers, Local No. 134, 466 F. Supp. 595, 597 (N.D.Ill. 1979) (Crowley, J.); Garcia v. Rush-Presbyterian-St. Luke's Medical Center, 80 F.R.D. 254, 262-64 (N.D.Ill. 1978) (Leighton, J.); Hernandez v. United Fire Insurance Co., 79 F.R.D. 419, 423 n. 2 (N.D.Ill. 1978) (Bua, J., dicta); Ortega v. Merit Insurance Co., 433 F. Supp. 135 (N.D.Ill. 1977) (Will, J.).

The courts extending § 1981 to discrimination against Hispanics have frequently relied on the following dicta from Budinsky v. Corning Glass Works, 425 F. Supp. 786, 788 (W.D.Pa. 1977):

  The terms "race" and "racial
  discrimination" . . . are subject to a
  commonly-accepted, albeit sometimes vague,
  understanding. Those courts which have extended the
  coverage of § 1981 have done so on a realistic
  basis, within the framework of this common meaning
  and understanding. On this admittedly unscientific
  basis, . . . Hispanic persons and Indians, like
  blacks, have been traditional victims of group
  discrimination, and however inaccurately or
  stupidly, are frequently and even commonly subject
  to a "racial" identification as "non-whites." There
  is accordingly both a practical need and a logical
  reason to extend § 1981's proscription against
  exclusively "racial" employment discrimination to
  those groups of potential discriminatees.

As Judge Moran explained the issue in Aponte, supra,

  The plain meaning of the statute [§ 1981] attempts
  to remedy different treatment of whites and
  non-whites. Because Hispanics are frequently
  identified as "non-whites," this court believes
  that the scope of § 1981 is broad enough to extend
  to that group.

These and other cases that have considered Hispanics as a race for ยง 1981 purposes have recognized a legitimate problem in our society today. Those persons with Spanish surnames come from a wide spectrum of racial and ethnic backgrounds; their ancestors include Old-World Spaniards, New-World Indians, blacks, and mestizos of mixed ancestry. Indisputably, there are individual Hispanics who consider themselves as nonwhite, are frequently identified by others as nonwhite, and suffer discrimination not only on the basis of their Spanish surname but because of their "race," which is perceived as ...

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