United States: Is It Okay To Hire Cooks To Match the Cuisine? (Part I)

We've all noticed it: why do many ethnic restaurants seem to have servers and wait staff matching that ethnicity? Why do some customers feel that ethnic food served by staff of a different ethnicity is less "authentic"? Does it bother you when you peek behind the kitchen door at, say, a Chinese restaurant, and see that the people making the food are clearly not Asian?

Although it's not clear whether customers actually do prefer food served by people of matching ethnicity, it does seem, at least anecdotally, to be a real social phenomenon. But what does the law have to say?

Generally speaking, it is illegal to make hiring decisions based on race, color, religion, sex, and national origin. Employment discrimination statutes and case law clearly provide that making adverse employment decisions based solely on national origin or other protected classifications can make a restaurant liable for employment discrimination (see e.g., Title VII of the Civil Rights Act of 1964, Age Discrimination in Employment Act of 1967, Title I and Title V of the Americans with Disabilities Act of 1990 as amended, Title II of the Genetic Information Nondiscrimination Act of 2008, and state laws such as California's Fair Employment and Housing Act).

There are some exceptions to this rule, however. Title VII of the 1964 Civil Rights Act prevents against employment discrimination, but it does not apply to companies with less than 15 employees (see 42 U.S.C. §§ 2000e(b)), or if the discrimination is required for the job as a "bona fide occupational qualification necessary to the normal operation of that particular business or enterprise." See 42 U.S.C. §§ 2000e-2(e)(1). In the case of small ethnic cuisine restaurants, it seems that many could fall under the carve-out for restaurants with less than 15 employees. And the "bona fide occupational qualification" (or "BFOQ") defense could be used to justify apparently discriminatory employment decisions if the restaurant can show that it is an essential trait of the job (Hooters is an example of this).

This BFOQ requirement is tricky however, and can change with social mores. In the 1960's, airlines used the BFOQ defense to defend hiring only female, unmarried flight attendants on the ground that their customers (who were mostly male businessmen at the time) preferred being served by single females. The Equal Employment Opportunity Commission challenged this employment policy on behalf of a male flight attendant candidate, and it was ruled discriminatory in Diaz v. Pan Am. World Airways, Inc., 442 F.2d 385 (5th Cir. 1971). In that case, the Court noted Pan Am's evidence of their clientele's preferences, but explained that one of the goals of employment discrimination laws is to overcome and maybe even change those discriminatory preferences.

This is obviously an interesting and provocative topic, and in future posts we will look at concrete things restaurants can do to protect themselves.

Further Reading

If you'd like to learn more about this topic, our colleagues have analyzed related issues, such as the effect of the recent U.S. Supreme Court case EEOC v. Abercrombie & Fitch, in which a Muslim-American woman, who was denied employment at Abercrombie & Fitch because of her hijab, successfully challenged the clothing retailer's "look" policy.

It is also worth checking out the excellent Freakonomics podcast, which recently featured an episode entitled "Is It Okay for Restaurants to Racially Profile Their Employees?" (Read more about it and listen to it here). The hourlong program looks at the question from all angles: social, legal, and of course, economic.

Disclaimer: This Alert has been prepared and published for informational purposes only and is not offered, nor should be construed, as legal advice. For more information, please see the firm's full disclaimer.