# Could a racist-themed restaurant legally discriminate in hiring? **URL:** \ **Category:** Factual Questions\ **Created:** [September 6, 2007, 10:35pm UTC](https://boards.straightdope.com/t/could-a-racist-themed-restaurant-legally-discriminate-in-hiring/418304 "2007-09-06T22:35:26Z")\ **Posts on this page:** 20\ **Page:** 1
**Author:** ![alphaboi867](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/alphaboi867/32/3898_2.png) [@alphaboi867](https://boards.straightdope.com/u/alphaboi867)\ **Post date:** [September 6, 2007, 10:35pm UTC](https://boards.straightdope.com/t/could-a-racist-themed-restaurant-legally-discriminate-in-hiring/418304/1 "2007-09-06T22:35:26Z")
I didn’t want to hijack the Hooters’ thread. Hooters hires only women (and usually only attractive women) as waitresses. They’re allowed to do this because their business is based on attractive women in skimpy outfits serving food. Could someone do the same thing but with race? Suppose somebody decided to have a racial stereotypes themed restaurant. Only African-Americans would be hired as waitstaff (though there’d be no discrimination against customers or staff that don’t interact with customers). Preference would be given to dark-skinned people with African hair and features. Staff would dress like stereotypical antebellum slaves and speak/act accodingly. Leaving aside the fact that such a disgusting business concept would almost certainly fail would it actually violate state (any state) or federal anti-discrimination laws? ---
**Author:** ![C\_K\_Dexter\_Haven](https://avatars.discourse-cdn.com/v4/letter/c/b2d939/32.png) [@C\_K\_Dexter\_Haven](https://boards.straightdope.com/u/C_K_Dexter_Haven)\ **Post date:** [September 6, 2007, 10:44pm UTC](https://boards.straightdope.com/t/could-a-racist-themed-restaurant-legally-discriminate-in-hiring/418304/2 "2007-09-06T22:44:42Z")
I ain’t a lawyer, but I have dealt with some employment discrimination issues. Discrimination rulings are based on the individual case and the individual circumstnances, so: it depends. My take, speaking in broad generality, is that it probably would not run afoul of anti-discrimination in employment… as long as we’re just talking about wait-staff that have contact with customers. The argument would have to be business necessity, and would not apply to behind-the-scenes staff (like kitchen help, chefs, etc.) One problem is, of course, that the scenario you suggest is pretty much morally reprehensible. An alternative: a Viking themed restaurant, say. Note that the theme would have to be very strong. I think that your typical neighborhood Chinese restaurant couldn’t get away with only hiring Chinese, on the grounds of customers’ expectations. However, a restaurant in China-town, perhaps. ---
**Author:** ![Bill\_Door](https://avatars.discourse-cdn.com/v4/letter/b/50afbb/32.png) [@Bill\_Door](https://boards.straightdope.com/u/Bill_Door)\ **Post date:** [September 6, 2007, 10:56pm UTC](https://boards.straightdope.com/t/could-a-racist-themed-restaurant-legally-discriminate-in-hiring/418304/3 "2007-09-06T22:56:09Z")
[QUOTE=alphaboi867] I didn’t want to hijack the Hooters’ thread. Hooters hires only women (and usually only attractive women) as waitresses. (snip) [/QUOTE] Whattaya mean usually attractive? To my eyes, any woman bringing me a mug of beer in one hand and a platter of chicken wings in the other is freakin’ gorgeous. ---
**Author:** ![Lemur866](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/lemur866/32/434_2.png) [@Lemur866](https://boards.straightdope.com/u/Lemur866)\ **Post date:** [September 6, 2007, 11:13pm UTC](https://boards.straightdope.com/t/could-a-racist-themed-restaurant-legally-discriminate-in-hiring/418304/4 "2007-09-06T23:13:35Z")
Usually there’s a limit to how large a company has to be before it is subject to such laws, I think that’s 50 employees or more. A chinese restaurant that employs 10 chinese waiters isn’t going to be sued for discrimination. A chinese restaurant that employs 100 chinese waiters is going to be OK as long as they don’t actually turn away white applicants. And what if you need to speak chinese to do your job at the restaurant? And race CAN be taken into account if it’s a bona fide job requirement. If you’re casting “Roots”, you can legally hire whites to play the masters and blacks to play the slaves and exclude asians entirely, even if you’re a gigantic multinational studio. If you had an Antebellum South theme restaurant you might be able to claim that race was a genuine consideration and that the servers were also perfomers…if such a thing was actually true. Of course, if your restaurant is percieved as racist, you’d have a problem attracting customers, and if your employees think you’re racist you won’t find many good employees. ---
**Author:** ![Chronos](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/chronos/32/134_2.png) [@Chronos](https://boards.straightdope.com/u/Chronos)\ **Post date:** [September 7, 2007, 3:29am UTC](https://boards.straightdope.com/t/could-a-racist-themed-restaurant-legally-discriminate-in-hiring/418304/5 "2007-09-07T03:29:39Z")
Also, no doubt some of the resident lawyers will correct me if I’m wrong, but isn’t discrimination by race held to a higher standard of scrutiny than discrimination by sex? So the comparison to Hooters isn’t necessarily valid. Oh, and the pedant in me feels obligated to point out that every restaurant hires only women as waitresses. The difference is that most of them also hire men as waiters. ---
**Author:** ![Paul\_in\_Qatar](https://avatars.discourse-cdn.com/v4/letter/p/ccd318/32.png) [@Paul\_in\_Qatar](https://boards.straightdope.com/u/Paul_in_Qatar)\ **Post date:** [September 7, 2007, 3:38am UTC](https://boards.straightdope.com/t/could-a-racist-themed-restaurant-legally-discriminate-in-hiring/418304/6 "2007-09-07T03:38:59Z")
I have often wondered about this. In Chinese restaurants, the waiters are Chinese. In Irish places, Irish. Is this practice legal? (Although my favorite Mexican restaurant is owned by Pakistanis.) ---
**Author:** ![drachillix](https://avatars.discourse-cdn.com/v4/letter/d/48db29/32.png) [@drachillix](https://boards.straightdope.com/u/drachillix)\ **Post date:** [September 7, 2007, 4:29am UTC](https://boards.straightdope.com/t/could-a-racist-themed-restaurant-legally-discriminate-in-hiring/418304/7 "2007-09-07T04:29:47Z")
[QUOTE=alphaboi867] I didn’t want to hijack the Hooters’ thread. Hooters hires only women (and usually only attractive women) as waitresses. They’re allowed to do this because their business is based on attractive women in skimpy outfits serving food. Could someone do the same thing but with race? Suppose somebody decided to have a racial stereotypes themed restaurant. Only African-Americans would be hired as waitstaff (though there’d be no discrimination against customers or staff that don’t interact with customers). Preference would be given to dark-skinned people with African hair and features. Staff would dress like stereotypical antebellum slaves and speak/act accodingly. Leaving aside the fact that such a disgusting business concept would almost certainly fail would it actually violate state (any state) or federal anti-discrimination laws? [/QUOTE] IANAL But I used to be amusement park management. Entertainers can be chosen to discriminate in gender or ethnicity, if your business can justify being an entertainment venue and these employees some kind of performers, then you can pull it off. ---
**Author:** ![Quartz](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/quartz/32/267_2.png) [@Quartz](https://boards.straightdope.com/u/Quartz)\ **Post date:** [September 7, 2007, 7:37am UTC](https://boards.straightdope.com/t/could-a-racist-themed-restaurant-legally-discriminate-in-hiring/418304/8 "2007-09-07T07:37:17Z")
Yes, this is entirely legal in the U.K. IANAL so no cite, but I’ve a friend who ran a Japanese restaurant. He, an Anglo, was the chef and the waitstaff were all Japanese. ---
**Author:** ![Argent\_Towers](https://avatars.discourse-cdn.com/v4/letter/a/e8c25b/32.png) [@Argent\_Towers](https://boards.straightdope.com/u/Argent_Towers)\ **Post date:** [September 7, 2007, 7:41am UTC](https://boards.straightdope.com/t/could-a-racist-themed-restaurant-legally-discriminate-in-hiring/418304/9 "2007-09-07T07:41:49Z")
[QUOTE=Paul in Saudi] I have often wondered about this. In Chinese restaurants, the waiters are Chinese. In Irish places, Irish. Is this practice legal? (Although my favorite Mexican restaurant is owned by Pakistanis.) [/QUOTE] The maitre’d at my local Irish pub is a tiny Vietnamese man. (The Irish Lion, on Kirkwood and Gentry in Bloomington, IN. Go there if you’re ever in the area - it’s the only bar in town that has animal heads all over the walls and an actual sense of character to it.) ---
**Author:** ![Harriet\_the\_Spry](https://avatars.discourse-cdn.com/v4/letter/h/e56c9b/32.png) [@Harriet\_the\_Spry](https://boards.straightdope.com/u/Harriet_the_Spry)\ **Post date:** [September 7, 2007, 12:43pm UTC](https://boards.straightdope.com/t/could-a-racist-themed-restaurant-legally-discriminate-in-hiring/418304/10 "2007-09-07T12:43:38Z")
[QUOTE=Lemur866] Usually there’s a limit to how large a company has to be before it is subject to such laws, I think that’s 50 employees or more. A chinese restaurant that employs 10 chinese waiters isn’t going to be sued for discrimination. [/QUOTE] The number is 15\* employees, and the firm must engage in interstate commerce (broadly interpreted) to be covered. Also, it is total employees, not just a specific category like waiters, so the 15 would have to include the kitchen, mgmt., etc. This seems to explain most local, family owned ethnic restaurants. Something like “Viking-land” would need to try for the entertainment aspect. In my experience when I’ve been to places like that, they actually have hired multi-ethnic staff. IMHO, the business model probably works better in this day and age to have a few swarthy Vikings. For an employer, being “allowed” to discriminate would mean continually successfully defending yourself against charges that you discriminated illegally. Also, good waitstaff willing to wear silly costumes are hard enough to find without making it harder on yourself. Sex, a la Hooters, is more of a winning business proposition than Viking land, Medieval England, or Roots. \*50, plus $50K in business w/ the Federal government is the cutoff for Affirmative Action employer, somewhat related but different. Unlikely to apply to a restaurant. ---
**Author:** ![cmkeller](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/cmkeller/32/118_2.png) [@cmkeller](https://boards.straightdope.com/u/cmkeller)\ **Post date:** [September 7, 2007, 7:24pm UTC](https://boards.straightdope.com/t/could-a-racist-themed-restaurant-legally-discriminate-in-hiring/418304/11 "2007-09-07T19:24:39Z")
> [@](#): > > Suppose somebody decided to have a racial stereotypes themed restaurant. Only African-Americans would be hired as waitstaff (though there’d be no discrimination against customers or staff that don’t interact with customers). Preference would be given to dark-skinned people with African hair and features. Welcome to Mugabe’s! May I evict a white family from their table in order to seat you? ---
**Author:** ![MrDibble](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/mrdibble/32/114_2.png) [@MrDibble](https://boards.straightdope.com/u/MrDibble)\ **Post date:** [September 7, 2007, 7:35pm UTC](https://boards.straightdope.com/t/could-a-racist-themed-restaurant-legally-discriminate-in-hiring/418304/12 "2007-09-07T19:35:40Z")
[QUOTE=alphaboi867] Leaving aside the fact that such a disgusting business concept would almost certainly fail […] [/QUOTE] [Things have come a long way…](http://en.wikipedia.org/wiki/Coon_Chicken_Inn) ---
**Author:** ![Keeve](https://avatars.discourse-cdn.com/v4/letter/k/f07891/32.png) [@Keeve](https://boards.straightdope.com/u/Keeve)\ **Post date:** [September 7, 2007, 7:51pm UTC](https://boards.straightdope.com/t/could-a-racist-themed-restaurant-legally-discriminate-in-hiring/418304/13 "2007-09-07T19:51:46Z")
[QUOTE=Paul in Saudi] In Chinese restaurants, the waiters are Chinese. In Irish places, Irish. Is this practice legal? [/QUOTE] I’ve noticed the same thing. I always thought the loophole was that all these laws only apply if you advertise for employees. But if you never accept applications, and simply ask your current workers if their friends (presumably of similar ethnicity) need jobs, no problem. ---
**Author:** ![Lemur866](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/lemur866/32/434_2.png) [@Lemur866](https://boards.straightdope.com/u/Lemur866)\ **Post date:** [September 7, 2007, 8:44pm UTC](https://boards.straightdope.com/t/could-a-racist-themed-restaurant-legally-discriminate-in-hiring/418304/14 "2007-09-07T20:44:27Z")
In order to sue for racial discrimination you have to have standing to sue. So you can’t just find a restaurant with an all-Chinese staff and sue them, you have to apply to work at that restaurant, get rejected, and then sue claiming the rejection due to racial discrimination. I imagine an ethnic restuarant could have a pretty good defense if they claimed that in order to work there you had to be able to communicate with the other staff. If you didn’t speak chinese or spanish, you weren’t qualified. There are plenty of jobs that require the ability to speak english. ---
**Author:** ![zelie\_zelerton](https://avatars.discourse-cdn.com/v4/letter/z/59ef9b/32.png) [@zelie\_zelerton](https://boards.straightdope.com/u/zelie_zelerton)\ **Post date:** [September 7, 2007, 9:02pm UTC](https://boards.straightdope.com/t/could-a-racist-themed-restaurant-legally-discriminate-in-hiring/418304/15 "2007-09-07T21:02:48Z")
[QUOTE=Lemur866] In order to sue for racial discrimination you have to have standing to sue. So you can’t just find a restaurant with an all-Chinese staff and sue them, you have to apply to work at that restaurant, get rejected, and then sue claiming the rejection due to racial discrimination. I imagine an ethnic restuarant could have a pretty good defense if they claimed that in order to work there you had to be able to communicate with the other staff. If you didn’t speak chinese or spanish, you weren’t qualified. There are plenty of jobs that require the ability to speak english. [/QUOTE] This is pretty much the case under UK law under Sectionh 5 of the Race Relations Act (1976) . If a company can show ‘genuine occupational qualification’ belongs only to one group of people then it can advertise only for that group. In a restaurant of a particular ethnicity it is desireable to create a certain ambiance associated with the region the food is from and so it’s fine to employ only people originating from that region. This only applies to those people involved in creating the mood though and behind the scenes positions are not excepted in the same way. For example, the restaurant cannot insist their chef is from a particular ethnic origin since ethnic origin does not equate to skill. ---
**Author:** ![Cervaise](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/cervaise/32/16693_2.png) [@Cervaise](https://boards.straightdope.com/u/Cervaise)\ **Post date:** [September 7, 2007, 10:26pm UTC](https://boards.straightdope.com/t/could-a-racist-themed-restaurant-legally-discriminate-in-hiring/418304/16 "2007-09-07T22:26:24Z")
[QUOTE=cmkeller] Welcome to Mugabe’s! May I evict a white family from their table in order to seat you? [/QUOTE] Heh. Heh heh. 😃 ---
**Author:** ![Lamar\_Mundane](https://avatars.discourse-cdn.com/v4/letter/l/85f322/32.png) [@Lamar\_Mundane](https://boards.straightdope.com/u/Lamar_Mundane)\ **Post date:** [September 7, 2007, 10:30pm UTC](https://boards.straightdope.com/t/could-a-racist-themed-restaurant-legally-discriminate-in-hiring/418304/17 "2007-09-07T22:30:49Z")
> [@](#): > > Leaving aside the fact that such a disgusting business concept would almost certainly fail Ever been to a posh Country Club in the south? ---
**Author:** ![monstro](https://avatars.discourse-cdn.com/v4/letter/m/ba9def/32.png) [@monstro](https://boards.straightdope.com/u/monstro)\ **Post date:** [September 7, 2007, 10:38pm UTC](https://boards.straightdope.com/t/could-a-racist-themed-restaurant-legally-discriminate-in-hiring/418304/18 "2007-09-07T22:38:53Z")
You could hire white waitstaff in such a restaurant and then tell the customers that they’re octaroons. Seeing as how most white-looking slaves tended to work in the Big House, it would be historically accurate. ---
**Author:** ![DSYoungEsq](https://avatars.discourse-cdn.com/v4/letter/d/c6cbf5/32.png) [@DSYoungEsq](https://boards.straightdope.com/u/DSYoungEsq)\ **Post date:** [September 8, 2007, 1:47am UTC](https://boards.straightdope.com/t/could-a-racist-themed-restaurant-legally-discriminate-in-hiring/418304/19 "2007-09-08T01:47:10Z")
Ok, I have this novel thought. How about, if we are going to answer a question like: > [@alphaboi867](#): > > would it actually violate state (any state) or federal anti-discrimination laws? we actually look at relevant sections of the law (with citations). So, we will look at the Constitution first. Ooops, no help. Restaurants are not states, or state actors. Federal law? > [@Title 42 United States Code §2000e](#): > > (b) The term “employer” means a person engaged in an industry affecting commerce who has fifteen or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year, and any agent of such a person, but such term does not include > (1) the United States, a corporation wholly owned by the Government of the United States, an Indian tribe, or any department or agency of the District of Columbia subject by statute to procedures of the competitive service (as defined in section 2102 of title 5), or > (2) a bona fide private membership club (other than a labor organization) which is exempt from taxation under section 501 (c) of title 26, except that during the first year after March 24, 1972, persons having fewer than twenty-five employees (and their agents) shall not be considered employers. > > … > > §2000e - 2 (a) Employer practices > It shall be an unlawful employment practice for an employer— > (1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin; or > (2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin. So such a practice would violate federal law, as long as the business qualified to be covered. State law? > [@California Government Code §12940](#): > > 1. It shall be an unlawful employment practice, unless based > upon a bona fide occupational qualification, or, except where based > upon applicable security regulations established by the United States > or the State of California: > (a) For an employer, because of the race, religious creed, color, > national origin, ancestry, physical disability, mental disability, > medical condition, marital status, sex, age, or sexual orientation of > any person, to refuse to hire or employ the person or to refuse to > select the person for a training program leading to employment, or to > bar or to discharge the person from employment or from a training > program leading to employment, or to discriminate against the person > in compensation or in terms, conditions, or privileges of employment. The full text of the [California Fair Employment and Housing Act](http://finduslaw.com/california_fair_employment_and_housing_act_feha_government_code_12900_12996#6). So, it would violate the law in California, as well. ---
**Author:** ![zelie\_zelerton](https://avatars.discourse-cdn.com/v4/letter/z/59ef9b/32.png) [@zelie\_zelerton](https://boards.straightdope.com/u/zelie_zelerton)\ **Post date:** [September 8, 2007, 2:27am UTC](https://boards.straightdope.com/t/could-a-racist-themed-restaurant-legally-discriminate-in-hiring/418304/20 "2007-09-08T02:27:29Z")
**DSYoungEsq** , From your quote above: “It shall be an unlawful employment practice, unless based upon a bona fide occupational qualification…” This to my mind does not answer the question as regards Californian Law. As I pointed out in my previous post, certain exceptions are made based on what in the UK is called ‘genuine occupational qualification’ and from your quote it appears that the same is true of California. I’ve outlined how those exceptions might work in the UK. Do you have any examples of how this might work in California? Are these specifically stated within the Law or were they defined by case law? If these questions cannot be answered for your own country and state then it seems that the OP is going to be left with the answer of ‘well, maybe’. As an addendum, in your first quote it states that it shall be unlawful. Does that law state any exceptions to the general statement you quoted? And also, could you clarify whether federal law trumps state law or the other way around? It seems to me that the laws you quoted could be seen as contradictory and I’m not sure how the American legal system works. [Next page](https://boards.straightdope.com/t/could-a-racist-themed-restaurant-legally-discriminate-in-hiring/418304.md?page=2)