Running head: BFOQ?

-CHINESE RESTAURANTS

Food For Thought Busi-330-Labor & Employment Law-Michael Walby The Robert B. Miller College Lori A. Shive April 16, 2014

BFOQ?-CHINESE RESTAURANTS Food For Thought

Upon reviewing cases of bona fide occupational qualifications, the laws are described in detail as to what qualifies a company to legally discriminate when hiring employees. The first qualification is the employer must employ 15 or more employees, otherwise the company does not have to follow the Civil Rights Act of 1964-which enacted laws to protect individual classes or groups of people from discrimination within the workplace. The CRA of 1964 protects in categories including race, color, national origin, religion, and gender. (Employment.laws.com/discrimination) The Age Discrimination Employment Act of 1967 came shortly after the 1964 Act, and ten years later the Rehabilitation Act of 1974 was enacted to protect the disabled. Some twenty years later the USERRA of 1994 was enacted to protect Military Service Workers. The CRA was initially developed to protect minorities from being discriminated, however, does this apply when reverse discrimination is taking place. Introduction In the particular case assigned, Lin & Chans Restaurant in Chinatown, San Francisco, CA, the discrimination is reversed and Chinese restaurants are only hiring Chinese employees. Is this legal? The first determining factor is how big is the Chinese restaurant? How many employees do they employ? If the company only employs less than 15 employees the company is not subject to any hiring constraints and do not have to follow the guidelines set forth in the Civil Rights Act of 1964. The small restaurant may hire anyone they wish for their 14 employees. Another determining factor is how does hiring these individuals affect the business? Can anyone do the job? Does it require special training? Can these individuals complete the assigned work tasks? Safety is another concerncan the employee successfully operate within the work environment? All of these questions are under scope when reviewing cases of this nature. The

BFOQ?-CHINESE RESTAURANTS burden of proof in these cases is as follows: the employee must show they are a member of the protective class and they have been treated differently than the non-members of their class. Whereas, on the reverse, the burden of proof for the employer is to show there is a legitimate, business reason for their employment decision. The final burden is back to the employee who must show the employers reasoning is not logical and/or false. Upon reviewing the case from the employees perspective it is evident discrimination occurred; however, the employer states the reasoning is bona fide occupational qualified. In other words, the employer is claiming there is a significant business reason for deciding to hire

only Chinese staff. Is it a significant and a qualifying reason to say other Chinese customers will not appreciate the restaurants food if they are not served by a Chinese employee? Does the food taste any different if served by an American or a Mexican or a Japanese individual? Is the potential employee capable of performing the task and will their performance derail the Chinese food authenticity? Logic says yes, the potential employee is capable of producing authentic Chinese food-the food is the same whether is served by an American or a Chinese personthe Chinese food remains constant. A good comparison would be to say if a hamburger at McDonalds is served by a foreigner then the burger will lose its American authenticity and McDonalds will lose business from Americans because of this. Consequently, this seems highly unlikely and illogical. According to the article Asian restaurant named in discrimination suit by author, Lawrence Smith (2011) shares information about an applicant for an Asian Cuisine restaurant. The applicant was told he would be getting a waiter position and was given an interview, but later told he did not get any position and the company was only hiring Chinese female servers. Unfortunately, the applicant had already informed his current employer of the new position he

BFOQ?-CHINESE RESTAURANTS would be accepting and resigned. Consequently, the applicant has filed suit on July 27, 2011

against the Asian Cuisine Inc. restaurant for race and gender discrimination. The plaintiff in this case has to prove he is in a protected class, and he was treated differently than the majority of other employees. Although, Andrew Marasco is an American-majority not minority, in this situation he is the minority, and is protected by the CRA of 1964 by way of being treated differently than the majority of employees within the company. Obvious reason being they are employees and he is not. Andrew is seeking punitive and compensatory damages. When reviewing Lin & Chans Chinese restaurant case from the employers perspective, the employer states We are looking to maintain our authentic Chinese atmosphere. Our customers, especially fellow residents of Chinatown, question the authenticity of our food if they are served by non-Chinese personnel. It is simply a business decision on our part (Walby, 2014). The owner also added: If there is an emergency in the building, we all need to speak Chinese to warn each and every staff member of how to handle the emergency. Thus, we need to hire only Chinese Staff (Walby, 2014). Many people may think these are good reasons for hiring only Chinese workers; however, diversity and adversity have increased over the years, consequently, reverse discrimination is becoming an issue now along with discrimination. The restaurant wants to keep the cultural atmosphere and being of Chinese decent, they may harbor animosity toward Americans. In the article Anti-Chinese USARacism & Discrimination from the Onset the author depicts the terrible treatment which the Chinese Americans have faced. According to the author, Zak Keith (2009) quotes in 1904 the Geary Act was amended, extended indefinitely all Chinese are barred from entry and naturalization for the foreseeable future (Keith, p. 10).

BFOQ?-CHINESE RESTAURANTS

America has continuously treated Chinese and Asians unfairly, another example more current is stated Following the crash of Asiana flight 214 at San Francisco Airport, Fox News affiliate KTVU broadcasts a report with the fake pilot names: Sum Tin Wong, Wi Tu Lo, Ho Lee Fuk and Bang Ding Ow. Other mainstream media and blogs are rife with jokes about Fright 214. Asiana decides on a lawsuit, but subsequently drops the idea. Ken Paulson, president of the First Amendment Center and the dean of the College of Mass Communication at Middle Tennessee State University, minimizes the effects of the prank and posits that there are no real-life consequences or long-term effects and thus no grounds for litigation (Keith, p. 17). This is an example of how the treatment of Chinese and Asians is still prevalent in society today and may be causing the group to want to remain within their group and not conform or have diversity. Another interesting quote from this author, is American textbooks continue to list WWII casualties at 40 million killed, completely sidelining the roles and sacrifices of Asians. In China alone, which was officially an Allied nation during WWII, there were 35 million deaths (Keith, p 18). The author also states how the movie Pearl Harbor reveals an unknown story of Doolittle but never reveals the 250,000 Chinese civilians killed and sacrificed in retaliation after helping a handful of American aircrew soldiers who landed in China purposely knowing the Chinese would lead them to safety. When taking into account all this maltreatment it is not surprising the Chinese are apprehensive about involving Americans. However, legality still prevails.

BFOQ?-CHINESE RESTAURANTS Overall, in review and analysis of this case the outcome results in discrimination. It is found to be illegal to intentionally hire only one race for your company. And the position is no

bearing on whether its discriminatory or not, it is still discrimination. The company will benefit regardless of the race of its employees, and the food will not lose its authenticity or cultural value when being served by an American. To think this way is only being prejudice and will lead to discriminatory results. In the case of Andrew Marasco, he will be awarded damages due to gender and race discrimination. Chinese restaurants do not qualify under the bona fide occupational qualifications because the patronage will still be there, and the company will not suffer significant losses due to the hiring of Americans. The Chinese food will remain authentic with proper training of a cook and can be served by anyone and hold its cultural value just the same. Employees of a different race will need to be trained in safety situations as well, and should be no more at risk than any other employees. The Chinese restaurants will probably combat this by simply keeping the employee count to under 15, therefore leaving them exempt from the CRA of 1964.

BFOQ?-CHINESE RESTAURANTS References Keith, Zak. (2009). Anti-Chinese USARacism & Discrimination form the Onset retrieved from http://www.zakkeith.com/articles,blogs,forums/anti-Chinese-persecution

Smith. L, April 16, 2014. Asian restaurant named in discrimination suit West Virginias Legal Journal. Retrieved from http://wvrecord.com/news/238126-asian-restaurant-named-in-discrimination-suit http://employment.laws.com/discrimination The Robert B. Miller College-Busi-330 Employment Law notes from Michael Walby