Weinstein Law Blog

Friday, January 27, 2017

Skin Tone Based Discrimination

In a recent and important civil rights decision, New York State’s highest court, the Court of Appeals, found a basis of discrimination relating to skin tone, irrespective of the person’s race or national origin.

How Does Skin Color / Tone Play a Part in Discrimination?

            The Decision, People v. Bridgforth, 2016 NY Slip Op 08586, addressed a Batson v. Kentucky challenge where the prosecutor has raised preemptory challenges, occurring during jury selection, against dark-skinned women.  The defendant is a dark-skinned male of African American decent.  The Court specifically focused on the preemptory challenge of a dark-skinned woman of Indian-American decent.  The Court of Appeals found that the skin-tone / complexion is a cognizable class under Batson. The Court clearly stated “We recognize the existence of discrimination on the basis of one's skin color, and acknowledge that under this State's Constitution and Civil Rights Law, color is a classification upon which a Batson challenge may be lodged.”

What is Batson v Kentucky, 476 US 79 (1986), Challenge?

            The United State Supreme Court provided a framework under Batson v Kentucky in which  courts analyze challenges to unreasoned strikes of potential jurors based on alleged discrimination. The Supreme Court of the United States held that "the Equal Protection Clause [of the Fourteenth Amendment] forbids [a] prosecutor to challenge potential jurors solely on account of their race" (Batson's application has been extended to discrimination on the basis of sex and ethnicity).  This has become known as a Batson challenge.

What is The Batson Process?

Batson outlines a three-step protocol to be applied when a defendant challenges the use of peremptory strikes during jury selection to exclude potential jurors for pretextual reasons.

  • Step 1, the movant must make a prima facie showing that the peremptory strike was used to discriminate;
  • Step 2, if that showing is made, the burden shifts to the opposing party to articulate a non-discriminatory reason for striking the juror; and
  • Step 3, the trial court must determine, based on the arguments presented by the parties, whether the proffered reason for the peremptory strike was pretextual and whether the movant has shown purposeful discrimination

What was the Court’s Reasoning?

The Court of Appeals stated that the New York State Constitution and Civil Rights Law “plainly acknowledge that color [as separate from race] is a status that implicates equal protection concerns.” Therefore, the Court reasoned that a Batson challenge may be based on color.

Moreover, the court specifically addressed the concept that discrimination on the basis of an individual’s skin color exists.  The Court cited to multiple studies and articles that such color-based dissemination “has been well researched and analyzed, demonstrating that "not all colors (or tones) are equal.”  The Court further went on to state that “[p]ersons with similar skin tones are often perceived to be of a certain race and discriminated against as a result, even if they are of a different race or ethnicity. That is why color must be distinguished from race.”

What Does This Practically Mean?

            Simply put, this significantly expands the view and perspective regarding discriminatory claims.  While this case is a criminal matter involving jury selection, the Court’s reasoning makes it plainly clear that “color must be distinguished from race” when it comes to discrimination.  Thus, the court mandated in an unequivocally clear fashion, that discrimination based on skin-tone, even within one’s own race, is unacceptable.


            For an experienced Civil Rights lawyer, call The Law Office of Jacob Z. Weinstein, PLLC at 646-450-3484.


Blog Categories

Firm News


The Law Office of Jacob Z. Weinstein, PLLC serves clients throughout Manhattan, Brooklyn, Queens, The Bronx, Staten Island, and Nassau County.

© 2018 The Law Office of Jacob Z. Weinstein, PLLC | Disclaimer
545 Fifth Avenue, New York, NY 10017
| Phone: 646-450-3484

Practice Area Overview | Criminal Defense | Civil Rights | Litigation | | Attorney Profile

FacebookGoogle+TwitterLinked-In PersonalLinked-In Company

Law Firm Website Design by
Amicus Creative

As a former prosecutor, I fully understand the power law enforcement has. As a trial attorney, I know the law seems very scary.