Reprinted from the September 1, 2005 issue of MANAGER’S LEGAL BULLETIN, a widely read employment law newsletter that communicates legal guidelines to managers through real-life dialogue and concrete examples. Click here to view a sample issue, get more information or sign up for a risk-free subscription.

Aiming To Please Misses Fair Hiring Mark

Customers are not always easy to please. While you have an obligation to provide satisfactory customer service, you are under no obligation to abide by their racial or ethnic preferences. Pleasing customers in that respect may lead to unpleasant legal consequences.

“Z” MARKS THE SPOT
Sissy Campbell was in the process of hiring new employees for the residential facility she managed. Due to the overwhelming number of applications she received, she recruited a subordinate to help her weed through them.

“As you’re going through the applications, mark any from minorities with a ‘Z’ in the lower left-hand corner,” Campbell instructed.

“What for?” Carin Ardoir asked.

“They’re getting put in the reject pile,” Campbell answered.

“What are you talking about?” Ardoir asked in surprise.

“The residents have said that they prefer white employees. They don’t want minorities to come into their rooms,” the manager explained.

“That doesn’t seem fair,” Ardoir interjected.

“Doesn’t matter,” Campbell said. “They pay to live here, and we’re here to make sure they’re happy. Remember, ‘the customer is always right.’”

“But that’s a bit unreasonable...and illegal...don’t you think?” Ardoir asked.

“The company has been doing it for years, even before I started here. I’m just following the rules of my predecessors.

“It seems to have worked so far,” added Campbell.

And so the practice of marking minority applications with a “Z” continued. Meanwhile, several rejected applicants became suspicious that the company was excluding them from consideration, so they filed a charge of race discrimination with the EEOC.

EEOC FINDS THE TREASURE
The EEOC investigated the company and found a pattern of illegal hiring practices that had gone on for at least nine years.

Employers are not entitled to commit discrimination because of a customer preference, said the EEOC. Customer preference for one race, sex, or age over another, or preference for a candidate who does not have a disability, is no excuse to violate federal anti-discrimination laws.

Not only had the company violated Title VII in it hiring practices, it also failed to keep proper employment records as required by law.

Bottom line: The company agreed to pay $650,000 to settle the lawsuit. In addition, the company had to pay for the cost of advertising in newspapers and on radio (up to $70,000) to locate and identify minority applicants who applied to the company during the time of the discriminatory hiring practices. Finally, the company agreed to train all employees on the requirements of Title VII (specifically, discrimination in hiring, discrimination reporting procedures, and retaliation).

DON’T WALK THE PLANK
Customers may have a preference for being served by individuals of a particular race, but their preference should not dictate your hiring decisions. Don’t feel forced into committing discrimination because of an obligation to please customers.

If you encounter customers who express a preference, take the following steps.

• Tell them that the company’s hiring policy requires that you hire individuals with the right qualifications and that race, color, age, etc., never factor into the decision.

• Emphasize your commitment to employing individuals who will do the best job possible. Explain the high standards you place on employees, expecting no less than satisfactory performance from them.

• Also explain your company’s anti-discrimination policies to further drive home the point that you’re abiding by a legal obligation. Some customers may not agree with a moral obligation to refrain from discriminating against certain individuals, but they may recognize your legal responsibility.

• Let customers know that they should come to you if they have a valid complaint about the service they receive from an employee.

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