Could a racist-themed restaurant legally discriminate in hiring?

[DSYoungEsq]

@zelie zelerton

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.

One does not trump the other. But if it is against federal law, it doesn’t become legal because a state permits it. Without getting into a huge discussion of federal preemption (which would neccesitate a VERY lengthy post to adequately address), it is possible in this case that the activity is against one, the other, or both laws.

You will note that there is a size limit on applicability of federal law, but none on California employers. So, a restaurant with 10 employees would not be affected by the federal law, but would still run afoul of the state law.

As for the “bona fide occupational qualification” clause in the FEHA, if I recall correctly, that is interpreted to be essentially the same exception as exists in the federal law, namely a limited exception not applicable in cases of racial discrimination (sex and religious discrimination only in the federal situation IIRC), and only applicable if no less restrictive means of accomplishing the employer’s purpose is available.

[Random]

DSYoung, it’s late (so legal research is not going to happen), and this aspect of employment law is not my strength, but I don’t think there’s a blanket prohibition on race-based hiring in ALL cases.

If Paramount pictures is casting its new Viking movie, I don"t think Denzel Washington has a case if he isn"t hired.

[DSYoungEsq]

@Random

DSYoung, it’s late (so legal research is not going to happen), and this aspect of employment law is not my strength, but I don’t think there’s a blanket prohibition on race-based hiring in ALL cases.

If Paramount pictures is casting its new Viking movie, I don"t think Denzel Washington has a case if he isn"t hired.

Denzel Washington isn’t an employee of the movie producer. He’s an independent contractor. Therefore, the law doesn’t apply.

[Harriet_the_Spry]

@Keeve

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.

No, advertising has nothing to do with the legality.

[Richard_Parker]

@DSYoungEsq

Ok, I have this novel thought. How about, if we are going to answer a question like “would it actually violate state (any state) or federal anti-discrimination laws?” we actually look at relevant sections of the law (with citations)…As for the “bona fide occupational qualification” clause in the FEHA, if I recall correctly, that is interpreted to be essentially the same exception as exists in the federal law, namely a limited exception not applicable in cases of racial discrimination (sex and religious discrimination only in the federal situation IIRC), and only applicable if no less restrictive means of accomplishing the employer’s purpose is available.

A little ironic to call for citations but then, on the crux of the issue, offer this cite-less statement.

Do you recall the caselaw here?

[brazil84]

@DSYoungEsq

Denzel Washington isn’t an employee of the movie producer. He’s an independent contractor. Therefore, the law doesn’t apply.

But what about the Civil Rights Act of 1866? Doesn’t that apply to independent contractors?

[Richard_Parker]

Title VII’s BFOQ exception does not include race:

@Title VII

e) Notwithstanding any other provision of this subchapter, (1) it shall
not be an unlawful employment practice for an employer to hire and employ
employees, for an employment agency to classify, or refer for employment
any individual, for a labor organization to classify its membership or to
classify or refer for employment any individual, or for an employer, labor
organization, or joint labormanagement committee controlling
apprenticeship or other training or retraining programs to admit or employ
any individual in any such program, on the basis of his religion, sex, or
national origin in those certain instances where religion, sex, or
national origin is a bona fide occupational qualification reasonably
necessary to the normal operation of that particular business or
enterprise…

[DSYoungEsq]

@Richard Parker

Title VII’s BFOQ exception does not include race:

We weren’t discussing Title VII, we were discussing California’s FEHA. The fact that the federal law doesn’t allow racial discrimination on the basis of BFOQ was already established.

I’ll poke around and see if I can’t find a citation for the FEHA issue. It’s Saturday, and I do have some other things to do.

[Richard_Parker]

@DSYoungEsq

We weren’t discussing Title VII, we were discussing California’s FEHA. The fact that the federal law doesn’t allow racial discrimination on the basis of BFOQ was already established.

Already established where in the thread? By which citation?

[DSYoungEsq]

@Richard Parker

Already established where in the thread? By which citation?

Mmmmm sorry about that. Must have mistaken something read in the other thread (the Hooters one that spawned this one). My apologies. :smack: