But my customers don't like dealing with 'them' - Lessons about customer preferences

Posted on 07/29/2014 at 02:06 PM by The Newsroom

Last week, the EEOC sued automotive parts retail giant AutoZone alleging that the Fortune 500 company forced an African-American sales manager to transfer to a different Chicago store and then fired him when he resisted the relocation. The reason for the transfer: AutoZone's alleged belief that the store's predominantly Hispanic customers would prefer to interact with Hispanic employees. Similarly, back in September, the EEOC reported that it settled a race discrimination suit with a Michigan medical center after successful use of its conciliation process. The allegation in that case: the medical center refused to allow an African-American nurse to care for a white baby allegedly based on the preference of the baby's father. A quick search of EEOC press releases from the past few years reveals a plethora of similar suits and/or settlements:

  • A 2009 settlement of an age discrimination suit brought against a technology company and government contractor for its failure to reassign and/or hire a longtime employee into an alternate position 'based upon supposed customer preference, because of his age.

  • A 2009 age discrimination suit against a Florida restaurant, lounge and nightclub after new management 'began to cut older employees hours and wages, take away their responsibilities, assign them to undesirable shifts, and force them out or terminate them outright all in an effort to cater to what [the restaurant] perceive[d] to be customer preferences for youth.

  • A 2009 suit against a different Florida nightclub whose managers 'forced black employees to work in the back instead of at the club entrance, and complained that ‘black music makes the club look bad.''

  • The 2010 settlement of a suit against a security services provider who allegedly engaged in sex discrimination by 'succumb[ing] to customer preference for male security guards and reassign[ing] the women to inconvenient, lesser-paying security guard posts.'

  • The 2010 settlement of a race discrimination suit against a senior home care provider for 'employ[ing] racial coding to identify clients who preferred Caucasian caregivers . . . and cater[ing] to the racial preferences of its clients.'

  • A 2012 settlement in a sex discrimination suit against an Arizona restaurant for 'removing pregnant women from its Sunday schedule . . . in an attempt to allegedly satisfy its male Sunday football customers.'

The list goes on . . . Both Title VII and the ADEA have provisions permitting the use of 'bona fide occupational qualifications' the establishment of an otherwise forbidden qualification for employment where the qualification is 'reasonably necessary to the normal operation of that particular business.  Almost forty-five years ago Pan American Airlines attempted to use the aforementioned 'BFOQ' exception to justify its practice of only hiring females for cabin attendant positions based in part on the fact that 'Pan Am's passengers overwhelmingly preferred to be served by female stewardesses.  Even back then, courts accepted the EEOC's general rule that a BFOQ should not be based on 'the preferences of co-workers, the employer, clients or customers.'  The court thus rejected Pan Am's BFOQ defense and found its hiring practice to be discriminatory.Employers should therefore take heed:  the EEOC both takes seriously and regularly enforces its position that '[c]ustomer preference is not a defense to a claim of discrimination' and courts are inclined to agree.

The material in this blog is not intended, nor should it be construed or relied upon, as legal advice. Please consult with an attorney if specific legal information is needed.  


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