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Can Ethnic Restaurants Hire Based on Race?

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I love sushi. And Mexican food. At the local Cleveland sushi restaurant I go to, all the wait staff is of Asian descent. At my favorite Mexican restaurant, virtually all the staff is of Latin or Hispanic descent. I’ll bet you found the same to be true the last time you went for sushi or Mexican. Why is this? And is it legal for a restaurant to hire only people of the same ethnicity as the food it serves? That employment discrimination issue was the topic of a podcast by Freakonomics last week.

I’ll answer the legal question below. First though, let’s cover a very basic overview of the law regarding race discrimination in employment.

Ohio and Federal Law Regarding Employment Discrimination Based on Race

sushiThe central federal law banning race discrimination in employment is Title VII of the Civil Rights Act of 1964. It applies to employers with fifteen or more employees. Ohio has a similar law, found at Chapter 4112 of the Ohio Revised Code. It applies to employers with four or more employees. Both laws make it illegal to discriminate against employees or applicants on the basis of race or color with respect to hiring, termination, promotion, demotion, pay or benefits, job training, and any other term, condition, or privilege of employment.

In fact, employers are typically not even allowed to ask for information about an employee’s or an applicant’s race, except under limited circumstances. Permissible affirmative action efforts or for the purposes of required reporting to a government agency are the two that come to mind. Unless one of those circumstances applies, when an employer uses questions or practices designed to elicit an employee’s or an applicant’s race, it typically suggests that the employer is improperly using race as a basis for employment decisions.

Title VII and Ohio law also forbid practices and policies that are not necessarily intended to discriminate, but have the effect of doing so. By way of example, soliciting job applications only in a Spanish-language newspaper might not be a conscious effort by the employer to discriminate (or it might be). Regardless, it could disproportionately screen out African American applicants. When a policy or practice that is neutral on its fact disproportionately and negatively affects employees or applicants of a certain race (or sex, or other protected characteristic), it is prohibited under what is known as the “disparate impact” theory. Only if the employer can show the policy or practice is “job-related and consistent with business necessity” will it typically be permitted.

How Race Discrimination Laws Apply to Restaurant Hiring

The Freakonomics podcast sought to answer why it is that so-called “ethnic” restaurants tend to be staffed by people of same ethnicity as the food. It also sought to answer whether it is legal for restaurants to hire only people of the same, or similar, ethnicity. To put it differently, could an Indian restaurant have a policy of hiring only Indian waiters?

According to the restaurant owner Freakonomics interviewed, one possible reason for why we tend to see employees match the ethnicity of the food being served is self-selection. Self-selection means that, for any number of understandable reasons, employees applying for restaurant work might be more likely to apply at restaurants serving the food of their culture or home country. Conversely, employees of a different ethnicity might not even apply, thinking they would not be considered for hiring. Whether there is empirical data to support this theory, I do not know. However, it does make some sense to me from a sociological standpoint. That does not answer the question of whether it would be legal for an employer to hire only people of a certain ethnicity.

The answer is actually rather simple from a legal standpoint: No. Employers cannot hire based on race or national origin under either Ohio or federal employment discrimination law. This is true for restaurants. It is also true even if the restaurant owners believe customers would prefer to be served by waiters of a certain race for purposes of “authenticity” or “atmosphere.” The restaurant owner interviewed expressed this very concern:

When you walk in to Gabriela’s, you don’t want to see me. I mean, you’re looking to see Gabriela. … I have red curly hair and a red beard and … I think there is something to say about that, that people want to come to a Mexican restaurant and be surrounded by Spanish-speaking people with dark hair, right?

While that sentiment holds common sense appeal, it is legally incorrect. Customer preference is not a defense in a race discrimination case, not even for ethnic restaurants.

To help illustrate the point, let’s put the shoe on the other foot. Imagine if a restaurant serving “American comfort food, like Mom used to make” decided its customers wanted to be served only by white employees, and refused to hire anyone else. I think instinctively we all know that would be illegal. The same is true for a Mexican restaurant, an Indian restaurant, or any other restaurant serving what people might call “ethnic food.” Employment discrimination law just does not permit employers to make hiring decisions on the basis of race or national origin.

Nor can employers duck the ban on race discrimination with a policy that serves merely as a pretext intended to screen out everyone but applicants of a particular race. A good example identified in the podcast was a Mexican restaurant with a predominantly English-speaking clientele refusing to hire anyone who did not speak Spanish. As noted above, restaurant owners must also consider whether their race-neutral hiring policies cause a disparate impact.

The next time you go for Chinese food, for sushi, or for Mexican food, take a look around at who is working there. It might be that the restaurant hires good people who happen to apply, regardless of their race. Then again, maybe not.

If you believe you have been a victim of discrimination at work, call the Cleveland employment discrimination attorneys at Bolek Besser Glesius LLC today for a free consultation.

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About Matthew Besser

Matthew D. Besser defends the rights of individuals in employment discrimination, civil rights, and constitutional law cases.

Matt is a former federal appellate law clerk, and an adjunct law professor at Case Western Reserve University. He is also a frequently invited speaker on an array of legal topics. Recognized for his accomplishments in the legal field, Matt holds the prestigious Martindale-Hubbell “AV Preeminent”® rating. Twice, U.S. News and World Reports has named him to its list of Cleveland employment law “Best Lawyers.” And Super Lawyers Magazine has named him a “Super Lawyer” for employment law in Cleveland four times. Twice before that, the Magazine named him one of its “Rising Stars.”

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