Labor & Employment Law Daily Wrap Up, DISCRIMINATION—RACE—D. Md.: Classification as ‘Hispanic and/or Latino’ qualifies as ‘race’ under Section 1981, (Aug 14, 2026)

By Steven D. Cole, J.D.

A former Nike employee’s Section 1981 race discrimination and retaliation claims based on his Hispanic/Latino heritage were cognizable, but the discrimination claim was dismissed for failure to plead but-for causation.

An Hispanic and/or Latino former employee’s Section 1981 race-based retaliation claim can proceed, though his discrimination claim failed for lack of “but-for” causation, held a federal district court in Maryland. Though this was not settled law in the Fourth Circuit, the persuasive reasoning of several opinions within and outside the circuit convinced the court that allegations of being “Hispanic and/or Latino” sufficiently state discrimination based on “race,” and not merely national origin, for Section 1981 purposes. The former employee’s discrimination claim was subject to dismissal, however, since he did not establish that race was a “but-for” cause of his termination. The former employee’s claim that he was fired in retaliation for complaining about racially disparate treatment could proceed (Nike USA, Inc. v. Passari, No. 1:25-cv-03996-ABA (D. Md. Aug. 12, 2026)).

Alleged discrimination. A former employee of Nike USA, Inc. (Nike) claimed that, beginning in December 2022, he faced discrimination based on his race. He alleged that his manager excluded him from key meetings and embarrassed him by “baselessly criticizing his contributions and proposals,” and then later “prais[ing] the exact same contributions and proposals made by similarly-situated, non-Hispanic and/or Latino employees.” The former employee also alleged that Nike discriminated against him generally by “repeatedly assigning him to less favorable assignments and positions, ignoring him or criticizing him for baseless reasons in meetings, embarrassing and humiliating him in front of his peers, giving him negative performance evaluations and feedback for no reason, and treating him in a hostile manner based on false or pretextual reasons because of his Hispanic and/or Latino heritage.”

Formal complaint and termination. The former employee filed a formal complaint with Nike about his manager’s discriminatory and hostile treatment on July 13, 2023. Five days later, he was notified by Nike that his employment was being terminated, effective immediately.

The former employee further alleged that, unlike similarly-situated non-Hispanic and/or Latino employees, he was never issued a written warning or placed on a performance improvement plan prior to his sudden termination, and was not offered a severance agreement. Finally, he claimed that, at his termination meeting, he was assured that he would receive the annual bonus payment that he had previously earned by working through the end of the 2022-23 fiscal year.

Procedural history. Nike initiated this suit against the former employee for unjust enrichment, stating that he had refused to return a bonus of $80,325 that was mistakenly issued to him as part of his final paycheck. The former employee countersued, asserting claims under 42 U.S.C. § 1981 for race-based discrimination and retaliation. Nike moved to dismiss these counterclaims.

Whether “Hispanic and/or Latino” qualifies as a race. The U.S. Supreme Court has construed Section 1981 to forbid all “racial” discrimination, including intentional discrimination based on “ancestry or ethnic characteristics.” Saint Francis Coll. v. Al-Khazraji, 481 U.S. 604, 613 (1987). In contrast, the Fourth Circuit has specified that “allegations of discrimination based purely on national origin are insufficient to state a Section 1981 claim.” Nnadozie v. Genesis HealthCare Corp., 730 F. App’x 151, 157 (4th Cir. 2018).

Nike argued in support of its motion that the former employee’s claim of discrimination based on his status as a Hispanic and/or Latino individual implicated his national origin, not race. Similarly, Nike’s sole argument regarding the retaliation claim was that the former employee had not alleged that he engaged in an activity protected by Section 1981 because he only complained about treatment based on being Hispanic and/or Latino.

Although the Fourth Circuit has not definitively decided this issue, opinions in two unpublished opinions strongly supported the former employee’s position that his allegations based on identifying as Hispanic and/or Latino fall within Section 1981’s prohibition on discrimination on the basis of race. See Sorto v. AutoZone, Inc., 821 F. App’x 188 (4th Cir. 2020); Nnadozie, 730 F. App’x 151. Notably, the Second Circuit has declared that it has “long been settled … that Hispanics comprise a distinct race for purposes of § 1981.” Vill. of Freeport v. Barrella, 814 F.3d 594, 606 (2d Cir. 2016). The Ninth Circuit has held similarly. See Pavon v. Swift Trans. Co., Inc., 192 F.3d 902, 908 (9th Cir. 1999) (finding that discrimination based on being Hispanic is actionable under Section 1981). The Supreme Court also held in Saint Francis College that the idea of race in connection with Section 1981 should be construed broadly because it was Congress’s intent to protect against ethnicity-based discrimination. SeeSaint Francis Coll., 481 U.S. at 613.

Based on these authorities, the court in the instant action concluded that, “[a]t a minimum, being Hispanic or Latino is not merely an indication of national origin; that descriptor also inherently contains ethnic characteristics.” Accordingly, it held that the former employee adequately alleged discrimination based on ethnicity and ancestry, not merely national origin, and denied Nike’s dismissal motion based on its contention that “Hispanic and/or Latino” does not constitute a race.

Causation. Unlike claims of discrimination under Title VII, in which a plaintiff need only show that race was a motivating factor in the adverse employment decision, Section 1981 uses the “but-for” causation standard. Here, even accepting the former employee’s factual allegations as true, he did not plausibly allege that Nike would not have fired him “but for” his race. The court viewed the allegations regarding his disparate treatment as being “too devoid of factual detail,” and it found that the former employee’s assertions that his manager’s tone or treatment during meetings was due to his race fell “far short of plausibly alleging that those statements render the but-for cause of his termination to have been his race.”

The case is No. 1:25-cv-03996-ABA.

Judge: Abelson, A.

Attorneys: Alexander P. Berg (Littler Mendelson) for Nike USA, Inc. Andrew Marc Dansicker (Law Offices of Andrew M. Dansicker) for Antonio Fabrizio Lima Passari a/k/a Fabrizio Lima Passari.

Companies: Nike USA, Inc.

Cases: RaceDiscrimination Discrimination NationalOrigin Retaliation MarylandNews