Is It Okay for Restaurants to Racially Profile Their Employees? (Ep. 210): Full Transcript

This is a transcript of the Freakonomics Radio podcast “Is It Okay for Restaurants to Racially Profile Their Employees?

Stephen J. DUBNER: Hey Levitt, pretend for a minute you’ve decided to open up a restaurant. Can you imagine that?

Steven LEVITT: Sure, easy to imagine something like that.

DUBNER: Would you enjoy it?

LEVITT: No, I would hate it more than anything.

DUBNER: But you can imagine it?

LEVITT: I can imagine it, yeah.

DUBNER: What food would you serve?

LEVITT: Probably fast food because it’s my favorite food. That’s what I would probably open.

DUBNER: Could you imagine opening something with an Asian cuisine?

LEVITT: There’s a really great Asian restaurant in the basement of LaGuardia Airport. I could open one of those. Do you know what I’m talking about?

DUBNER: Um.

LEVITT: You’ve eaten there with me. I’ve made you eat there.

DUBNER: Oh yeah. That’s kind of the fast food. Sure.

LEVITT: Yeah, exactly, fast-food Asian.

DUBNER: The sweet-and-sour chicken. Yeah. Right.

LEVITT: Bourbon chicken.

DUBNER: Bourbon chicken. That’s what it is, the bourbon chicken. Okay, so you would open an airport fast-food Chinese restaurant. That would be your heart’s desire. And let me ask you this: how do you think you would approach hiring the wait staff of this Chinese, fast-food, airport restaurant. Do you want them to match the food in some way?

LEVITT: Absolutely.

DUBNER: Why is that?

LEVITT: When it comes to ethnic food, I’m not sure why, but we’ve decided that it tastes better when it’s served by people of that ethnicity.

I’m guessing you may have noticed this too. We certainly have in my family. My son Solomon noticed it a few years ago, when he was like 10. I have friends, New Yorkers, who lived in Japan for several years, learned the language, then moved back to New York. And then for one of their first meals back, they went to an “authentic” Japanese restaurant, and started talking to the waiter in Japanese. But he didn’t know a word of Japanese — because he was Korean. The other waiters there were Vietnamese, Filipino, Chinese. What is going on here? That was the question put to us by one of our listeners:

Bailie HICKEN: Hey Freakonomics Radio. This is Bailie Hicken out of Salt Lake City, Utah, and I have a question for you guys: I was at dinner last night having sushi and I had this realization that every worker at every sushi restaurant that I’ve ever been to is Asian, or at least Asian-ish looking. Is it a prerequisite that you have to be Asian-looking to work at a sushi restaurant? And if it is, can they do that?

Bailie explained a bit further in an e-mail. She wrote: “If someone wanted to hire all white, or ‘American-looking’ people at, let’s say some very Americanized restaurant, then people would be pissed. Or all black, all women, all gay, whatever really. How do the Asians get away with it? Let it be noted that my grandpa is Japanese, so I am a quarter, and I love the Asians.”

HICKEN: Maybe you guys can look into it for me. Maybe it could be a podcast one day, who knows? A girl can dream, right?

Yes, Bailie, a girl can dream — and we will dream right along with you. We will try to figure out where this restaurant racial profiling comes from, if it makes sense, if it’s legal — and, of course, we should note it isn’t only Asian restaurants we’re talking about. We’re talking about restaurants that make Indian food (served by people from Pakistan and Bangladesh), Italian food (served by Croatian and Serbian waitstaff), and Mexican food too. Speaking of which, hey — what’s your favorite Mexican dish?

Liz O. MILNER: I love the chimichanga.

*      *      *

Neither Steve Levitt nor I have ever run a restaurant. So, to try to figure out the ethnic hiring patterns at restaurants, I thought we’d start with some people who actually do run a restaurant. Or two.

DUBNER: Okay, we’re in the kitchen. I’m seeing some charred red peppers.

Nat MILNER: This is the enchilada station and the quesadilla station …

That’s Nat Milner. And this is his wife, Liz O. Milner …

O. MILNER: This kitchen smells amazing.

Liz and Nat own and operate two restaurants in Manhattan, on the Upper West Side. Pretty close to where I live, as it turns out. And, as it turns out, my family and I really like both their restaurants. One is called Elizabeth’s Neighborhood Table, named after Liz. It calls its cuisine “thoughtful American comfort food.” And right next door is Gabriela’s Restaurant and Tequila Bar. That’s where we are now.

DUBNER: Okay. You want to walk us through the kitchen quickly?

O. MILNER: Sure, sure.

Gabriela’s, as you’ve probably figured out by now, is a Mexican restaurant.

MILNER: This is Rita. She makes all the …

DUBNER: Hola. ¿Qué tal?

RITA: Bien. 

MILNER: This is the homemade corn tortillas being made right here. It’s a real, old-school metal press. You just put a ball of dough in there. Flatten it out and throw it on the hot grill.

Nat Milner comes from a real New York restaurant family. His uncle, Arthur Cutler, was a pioneer, a Jewish guy on Long Island who figured out that what New York really needed was a big, noisy, family-style Italian place called Carmine’s. And a Chinatown-style noodle shop, with roast meats, called Ollie’s. And Virgil’s, a southern-style barbecue joint in Times Square back when Times Square was really Times Square. Arthur Cutler liked to zig when everybody else was zagging, as I learned from his nephew Nat:

DUBNER: Okay, let’s go back to the beginning of Gabriela’s. First of all, who was Gabriela, the person?

MILNER: Gabriela worked for my uncle. She would have been helping out with my cousin and cooking meals every once in awhile. My uncle would come home and say, “Holy cow! This food is great. What is this?” It was the late ’80s, early ’90s, and everything was Tex-Mex. Gabriela was like, “I don’t know. This is just what I cook at home.”

DUBNER: She’s Mexican? Gabriela?

MILNER: Yeah. Gabriela Hernandez.

DUBNER: It was home-style, fresh Mexican. What part of Mexico is she from?

MILNER: Guadalajara.

DUBNER: Okay. And so your uncle says, “Hey, we should open a restaurant featuring your food?” That’s the way it worked?

MILNER: Yeah. Basically, her whole family came into the business and her uncle was the original chef. He came up with, Hector came up with all the recipes and designed the whole menu and put it all together.

So when we call Gabriela’s a Mexican restaurant — well, it really is pretty Mexican. The moles, the ceviches, the chimichangas. Arthur Cutler, Nat’s uncle, the restaurant pioneer, died young in 1997. Nat was living in Alaska, where he’d gone to hang out, fish salmon. That’s where he met Liz. She’s from Boston; she went to Alaska as a Jesuit volunteer. By now they’d fallen in love, married, had a kid. When Nat’s uncle died, and Nat heard the family could use some help in their restaurants back in New York, Nat and Liz moved back, and Nat wound up running Gabriela’s. The food today is pretty much the same as it was at the beginning. The recipes are authentic Mexican; the vibe is Mexican-ish; the tequila is most definitely Mexican. Nat and Liz regularly go to Mexico to taste tequila from the barrels to decide which batch to bring back to Gabriela’s.

DUBNER: Should we be drinking some while we talk?

MILNER: We could. It’s almost time. We have our own select barrels here. They’d be a perfect breakfast tequila.

DUBNER: Do you really? Is there a breakfast tequila?

MILNER: We could make something up.

Nat showed me a selection of blanco tequilas — that’s clear, unaged tequila. And then some reposados and anejos — those are the darker ones that have aged in barrels for at least a year.

MILNER: This is a 364-day reposado.

Tequila tasting, according to Nat Milner, is lot like wine tasting. We wafted; we sniffed.

MILNER: You want to give it a little swirl. Tip it on the side. Smell way over the top of the glass.

And then, just before noon — we drank.

MILNER: Cheers.

DUBNER: Cheers. Mmm, delicious. So good.

MIlNER: Yeah, it’s yummy, huh?

DUBNER: Fantastic.

That’s a lot of authenticity for a Mexican restaurant in New York. So what about the people who work there?

DUBNER: In a given busy shift — I don’t know, a Thursday night, Friday night, Saturday night — you obviously get really busy. How many front of room workers do you have here?

MILNER: On a real busy night in the summer, we’ll have about ten servers on.

DUBNER: Ten servers, okay. Is that waitresses, waiters or is that —

MILNER: We’re talking about waitresses, waiters. And then bussers, runners, bartenders, barbacks and all the kitchen staff.

DUBNER: Okay. All in front of the house. On a Friday night, let’s say [that] would be then 20, 25 people?

MILNER: Yeah, that sounds about right.

DUBNER: Okay. How many of them are Mexican?

MILNER: Well, I don’t really have the breakdown.

DUBNER: You don’t have the papers in front, yeah?

MILNER: No, but  I would say probably 40%.

DUBNER: Oh, is that right?

MILNER: Yeah, but everyone’s pretty much Latin. Everyone speaks Spanish. A lot of people are from Colombia, Ecuador, Dominican Republic.

DUBNER: Does it matter that a server might be Dominican serving Mexican food, in your view?

MILNER: I don’t think that matters, no.

DUBNER: But how many non-Latinos do you have front of the house?

MILNER: Very few.

Why so few non-Latinos in a Mexican restaurant? Does this come from the supply side (the restaurant) or the demand side (the customers)? As Nat talked me through it, he pointed out that he doesn’t actually do the hiring; the general manager does, and he is from Mexico.

MILNER: You have a corporate culture, right? You have a group of people. You’re trying to grow a team. You put out ads, a lot of ads go in Spanish newspapers, especially for the back of the house. The front of the house, we tend to always have a good selection of people who want to work and we don’t really advertise the jobs.

DUBNER: They come to you through other people who are working here? Gotcha.

MILNER: Through other people. We have sisters, brothers, cousins and extended families working throughout the whole restaurant.

DUBNER: I assume then they’re mostly speaking Spanish to each other on the job?

MILNER: Mostly, yeah. Especially in the back.

DUBNER: Especially in the back, right. The back is all Latino as well?

MILNER: Mhm.

DUBNER: Gotcha. What if I am 25 years old, I just moved to New York from Pennsylvania and I happen to be white and I’m looking for a waiter job or waitress job and I come to you guys?

MILNER: We would hire you.

DUBNER: You would?

MILNER: Yeah, you want a job?

DUBNER: I do not actually. At this moment, I do not. Though I could be your tequila taster. I think I’d be good at that.

MILNER: We honestly don’t get a lot of people like that walking in.

DUBNER: What I want to know is how it works. Is it a self-selection in terms of the hiring and the applying?

MILNER: In that sense, yeah. Back in the day, you could be 16, 17, 18 years old looking for a job as a busboy.

DUBNER: Right.

MILNER: Now, those jobs just aren’t there because you have adults who want those jobs.

DUBNER: Wven paperboys are now adults. Papermen.

MILNER: Yeah, you have people who you know. Why would I have a 17-year-old working here when I could have a 28-year-old man who has a baby and is trying to support his family?

DUBNER: Now, let me ask you this. For the people who come here to eat, do you think they care that the front of the house is all Latino in terms of making it the right experience, whether that’s about authenticity or whatnot?

MILNER: I think there’s a little aspect of that, but I don’t give it much credence. It might be a little bit. I know that when you walk in to Gabriela’s, you don’t want to see me.

DUBNER: Why? I don’t mind seeing you.

MILNER: I know, but you’re looking to see Gabriela. I have red curly hair and a red beard. There is something to say about that, that people want to come to a Mexican restaurant and be surrounded by Spanish speaking people with dark hair, right?

O. MILNER: For one, I feel like the pace, the way things move here, I know we’ve had some people come in who are not Latino, but they don’t stay long. It’s just one of those things where it’s moving fast, you’re in the kitchen, you’re speaking Spanish.

DUBNER: It’s because of a language barrier.

O. MILNER: You understand the food. You’re excited about the food.

MILNER: If you come to work here and you don’t speak Spanish and you don’t fit in with the culture of the family meal and eating with people and laughing with people, you feel like you’re a little bit outside of it. I even feel that when I’m walking around, but I just muscle through.

But what about restaurants that serve Asian cuisine? Why would a Japanese-style sushi restaurant hire waitstaff who are Korean, Vietnamese, Filipino?

MILNER: It goes back to the same thing about who walks in the door looking for these jobs, right? If I’m Asian, I’m not going to go to a Mexican restaurant and say, “Can I get a job here?” I mean, you might, and we hire all kinds of people. But you might rather go to an Asian restaurant and feel a little more … I don’t have a good answer for that. But I think a lot of the people who are coming here are the first generation. They’re just here, they’re trying to work their butts off, they’re trying to make something and there’s some truth to that.

DUBNER: That’s interesting: the work ethic of the immigrant, or maybe the first-generation American, coincides well with the needs of a restaurant that happens to be an ethnic restaurant, so that might be one reason why the hiring self-selects itself like that.

MILNER:I would think it has something to do with it. I will also say, you’re talking about the 25-year-old kid who’s coming to New York City. He’s trying to make something and he’s trying to get a job. He’s not coming to New York to be a waiter. He can do that in Omaha, right? He’s coming here to do something else, whatever that might be. It’s like that TV show, Taxi, right? None of them are really taxi drivers except for Alex, right? Everyone was an actor and one was a boxer and one was a comedian or whatever. It’s the same thing. If he’s sitting here and I have someone who sees the restaurant industry as a career,  I would certainly think of them over someone who’s maybe going to be here for three months and then get a show on Broadway and disappear or whatever.

And that is a problem that Nat and Liz have had at their other restaurant,  Elizabeth’s Neighborhood Table. From the street, the two restaurants are just next door. But from the back — through the kitchen at Gabriela’s — you see they’re actually attached …

MILNER: We have a secret back door over here.

And just like that, you go from a kitchen producing guacamole and ceviche to a kitchen with pancakes and eggs on the griddle. Elizabeth’s does a big brunch business with the classics. They have a great corned beef, by the way. Lunch and dinner bring creative salads and comfort foods like turkey meatloaf and grass-fed burgers.

O. MILNER: We have wonderful soups. I’m not even sure what soups we have today.

DUBNER: That’s my corned beef! Now, I’m excited to see a can of Pam in your kitchen because I need Pam once in a while. Do you use it regularly?

O. MILNER: We do.

MILNER: We put it on the waffle iron.

DUBNER: On the waffle iron. And the kitchen here …

O. MILNER: I don’t if I’m excited that you saw our Pam.

DUBNER: Well … I know …

 The kitchen staff at Elizabeth’s, like at Gabriela’s, is all Latino. Orders are called out in Spanish. But step through the kitchen door into the dining room, and you get a very different vibe. Gabriela’s has Day of the Dead figurines and Mexican décor, with empty tequila barrels out front. Elizabeth’s looks like a New England beach house — wainscoting, a Martha Stewart-y color palette, brass wall sconces. The waitstaff is much more of a mix than Gabriela’s — most definitely not all Latino.

DUBNER: I have to say — I don’t mean to sound racist because it’s against me — but this transports me to a place where there’s a lot of white people.

O. MILNER: Exactly. Yeah.

DUBNER: Look, some of my best friends are white people. Did you feel at some point any, not pressure, but desire to make the wait staff look more, like, East Hampton-y or Connecticut-y?

MILNER: We really want to reflect the neighborhood here. That’s what we wanted to do.

DUBNER: Right. There’s plenty of white people in the neighborhood. I live in the neighborhood. You live in the neighborhood-ish.

MILNER: Yeah, we have plenty of white servers too.

The chef at Elizabeth’s Neighborhood Table is Tomás Arañas. He’s from Mexico. Over the past decade-plus, he’s worked at a lot of restaurants in New York, and he says he’s noticed a big shift in the demographics:

TOMAS ARANAS: Everywhere you go now, you’re going find Mexicans or Latinos. It’s not like before. I remember before it was like, if you go like Italian cuisine, you find all Italian people. Now it’s not.

But there’s usually a split, he says, between the kitchen and the front of the house:

ARANAS: If you see a lot of different restaurants, if you see front of the house, it more like, white people in the front. Some Latinos, but not a lot. Back of the house, most of the time, is Latinos.

If you look at restaurant and food-industry jobs in the U.S. by ethnicity, as compiled by the Bureau of Labor Statistics, you’ll see that 25 percent of those jobs are held by Latinos, while Latinos make up only 17 percent of the U.S. population. So for whatever reason or set of reasons, restaurant work has become a Latino stronghold, especially in the kitchen. But here’s my question: is the practice of hiring Latino servers at a Mexican restaurant, or white servers at an “American”-style restaurant  or, for that matter, Asian servers at a Japanese or Thai restaurant … is this discrimination?

LEVITT: I, personally, wouldn’t call that discrimination, or at least not the kind of discrimination to get upset about.

That again is Steve Levitt, my Freakonomics friend and co-author  who could see himself opening a Chinese fast-food restaurant at an airport.

LEVITT: The discrimination we usually worry about is discrimination where employers make choices about who to hire based on criteria that are unrelated to performance on the job. For instance, if it’s answering the phone and it’s men versus women —  there’s no evidence that men are better at answering phones than women. I would say in a Chinese restaurant, looking Asian is an important part of fulfilling the task. Those people don’t cost any more to hire than the Mexican staff at a Mexican restaurant or the Indian staff at an Indian restaurant, but they enhance the experience of the people who are dining there.

DUBNER: Because you think the customer has a happier experience if he or she thinks the waitstaff is related to country where the food is from, that’s the reason why it’s better or more optimal? Because, honestly, as you’re describing what does constitute discrimination, I was thinking that this is it, not the opposite of it.

LEVITT: No. If that Chinese restaurant had not a single Asian person ever in sight, I bet you and I would talk about that a lot when we were in the restaurant. That would be evidence to me that it matters to the customers, whether the service staff are Asian or not.

DUBNER: But I’m just curious whether maybe this is a custom and because it’s been around for a long time we accept it as either sensible, optimal or fair. But maybe, in fact, it’s none of those. What if I say, “You know what? Most of the hosts of the biggest podcasts in the world are men. Therefore, that’s evidence that men are plainly better, and therefore I do not want any women touching my podcast.” Isn’t that pretty similar to arguing that I do not want any non-Asian people serving me Asian food?

LEVITT: That’s a little different. Your question really intersects with how we think about markets. In general, economists tend to think that when there are a lot of different options for workers to go out and find jobs in different places, the impact of the kind of discrimination — or at least differentiation —  that you’re describing at this Chinese restaurant turns out not to be very important. Now, if there were no jobs, if the only jobs in the economy were Chinese restaurants, then we would really worry a lot about who gets hired and who doesn’t at restaurants. But in a world where there are Japanese restaurants, and Mexican restaurants, and Indian restaurants, and fast-food restaurants, I can’t get too excited worrying about what I would call discrimination in terms of hiring when you can make a good case, rightly or wrongly, that customers care who serves them. But if you think about it realistically, why should it matter what the ethnicity is of the server in a Chinese restaurant? You might very well worry about the cook, but you don’t see the cook. But, somehow the server is probably just decoration, right? It’s not important to the quality of the food.

DUBNER: Levitt, let’s pretend you and I are gonna open a restaurant together, let’s say, in New York. Let’s say it’s Swedish and we decide to call it ‘Smorgasbord,’ okay? Does this mean you want to hire only really Swedish-looking people?

LEVITT: Absolutely.

DUBNER: You wanna hire a bunch of tall blond people with blue eyes who are probably good skiers. That’s what you want?

LEVITT: For sure. If I have a Swedish restaurant, I want to fill it up not just with people who are tall and blond, but who have nice Swedish accents as well, whether they’re real or fake.

DUBNER: How do you advertise for those jobs in the paper?

LEVITT: Um …

DUBNER: That was the longest pause I’ve ever heard out of Steve Levitt and I have heard some long pauses out of Steve Levitt.

LEVITT: One thing you might do is advertise in Stockholm to find some people who will come from Sweden and work at your restaurant. But I would start by saying the name of the restaurant and that we serve Swedish cuisine. Maybe I would advertise in Swedish if I really wanted to be super-serious about that. Or maybe I just advertise at modeling agencies that will have lots of tall, blonde-haired, blue-eyed women.

DUBNER: All right, but let’s be honest. It’s trickier to advertise. I’m not going to say, “Whites only” or “Blondes only” for a Swedish restaurants. Whereas if I open an Indian restaurant, I know that my customers in New York —  the vast majority of them — may not know or care the difference between an Indian waiter, a Pakistani waiter, a Bangladeshi waiter, etc. Right? I can lump them together comfortably. I can’t lump together blond whites comfortably, can I? And if not, is that fair?

LEVITT: You can lump them. Can you tell the difference between a Swede and a German and a Finn? I can’t.

DUBNER: At first blush, I’d say absolutely not, right? But when I say lump together, I mean put out my net to attract them.

LEVITT: That is a different question. I wonder what would happen if you put a want[ed] ad in the paper that said, “Looking for Swedish-looking people to serve in my restaurant.”

DUBNER: I’m guessing you’re sued within 24 hours. That’s what I’m guessing.

LEVITT: But if you’re on Broadway, aren’t you allowed to do that? On Broadway, they could say, “We need a character who has these characteristics.” They would say that because the play couldn’t be done.

DUBNER: A verisimilitude, right. If I decide to open a restaurant featuring Jewish deli food and I want to hire only Jewish wait staff I can do that according to your lights?

LEVITT: Yeah. Of course, what we’re saying isn’t that you have to hire only Jews to work in your deli, they just have to be people who look like they are Jews, who can pass for Jews. Now, you might actually have a harder time there because what you risk if you have a deli and people want to start speaking Hebrew or Yiddish, then you really want people who are Jewish there. In the same way, what if people come into our “Smorgasbord” restaurant and they start speaking Swedish to our poor German waitresses who don’t know anything about Swedish? We could be in trouble. That’s the sense in which it really is defensible to hire people who fit the part. I don’t know anything on the legal background of it, but I would be fascinated to find what the legal standing is of those kind of choices. Because my hunch is that you might be able to get away with that. Are you going have some experts on? You should have a legal expert on, for sure.

Okay, Levitt. After the break, we will have a legal expert on, to talk about ethnic-based restaurant hiring …

John DONOHUE: The statute is pretty clear: if you’re taking ethnicity into account you are technically subject to an employment discrimination lawsuit.

We’ll also hear from a someone at the federal agency that enforces discrimination law in the workplace.

Justine LISSER: We don’t condone hiring solely on the basis of ethnicity. That is illegal. You cannot decide, “We’re a Chinese restaurant, we only want Chinese.” Or, “We’re a Mexican restaurant, we only want Latinos.”

And, because the world is interesting, we’ll also talk to a white, Irish-American comedian who got a job as a greeter at a Chinese restaurant, in China, and did not like how he was greeted:

Des BISHOP: Hey, listen buddy. If I was in New York and I walked into a restaurant and the welcomer was like, “You are vewy wewcome.” And I went, “You are vewy wewcome.” Or “Wewcome to ouw westauwant. You want a fwied wice?” Well, I’d be arrested.

*      *      *

Des Bishop is a comedian, very popular in some parts of the world …

TALK SHOW HOST: Would you please welcome Mr. Des Bishop.

That’s him appearing on a late-night talk show in Ireland.

BISHOP: Thank you.

TALK SHOW HOST: You’re so welcome, as always.

BISHOP: This is cool, man.

Bishop grew up in New York and moved to Ireland as a teenager. He has hosted shows on Irish TV that are part comedy, part reality series. One of them was about sending an American-Irish comic to China to see how he made out. 

ANNOUNCER: Des Bishop is in China.

So for the past two years, Bishop lived in China. He studied Mandarin; he lived with a Chinese family and immersed himself in the culture; and he performed his standup act in Mandarin.

DUBNER: Can you give us the beginning or a favorite part of your Mandarin routine in Mandarin right now and I’ll see how it works on me?

BISHOP: This is a quick one: [speaks Mandarin]. You’re just laughing at my Chinese! That’s different.

DUBNER: I love it.

BISHOP: I’ll translate this in a minute.

DUBNER: Later.

BISHOP: I actually did this on Chinese television. It got a great laugh.

DUBNER: You had me at “tā shuō.” Now tell me what you said?

BISHOP: Basically that’s a joke about an argument I had with my girlfriend. It comes from a routine about dating a Chinese girl. Basically, we were having a massive argument. There’s not one bit of this that’s made up. It’s 100% true. 

DUBNER: I have to say, when I hear you talk in Mandarin — not understanding literally a single syllable — I am inclined to laugh just because you sound like a comic. You know what I mean? Like the melody of it and the intensity of it and the way you pace things. To me, your Mandarin sounds awesome. I have no idea. Is it pretty good? Or not really?

BISHOP: To my American and Irish friends, it’s absolutely amazing. But to be honest, for Chinese people, they find it amazing that I can get laughs with my very average, if not poor Mandarin. But I get away with it, I guess with a bit of New York confidence or something. My Chinese is not bad. For the amount of time I’ve been studying, it’s pretty good. But it’s by no means eloquently fluent.

As part of the show that Des Bishop was making in China, for Irish TV, he took a job as a “greeter” in a Chinese restaurant. Not a host; just a greeter.

BISHOP: A host actually sits people. I literally just had to greet people.

DUBNER: That’s all you did? Why would they hire somebody to do that?

BISHOP: That’s a job. That’s like a real job in China. A yingbinyuan is literally a welcomer. That’s their job. 

DUBNER: You would literally say hello to people when they came in and say goodbye when they left and thank you?

BISHOP: Yeah. You have to say it very loudly. It’s a Chinese thing. When you’re in China, you walk in and they’re like, “Huānyíngguānglín,” really loudly and people feel like it gives them face or whatever.

The job was in Hegang, a city of about a million people, relatively small as Chinese cities go. Bishop lived with the other employees in staff housing; the restaurant fed him and paid him about $300 a month.

DUBNER: Just tell me a little bit — because I have no idea and I’m curious to know — is going out to eat in a restaurant like this, in a city like this, is it a special deal? Or is it more like a once a week thing that families will do? Is it more for celebration? Is it more adults, families or even teenagers? Just tell me a little bit about that.

BISHOP: Mostly adults and families. The specialty of this restaurant is it’s all rooms. There was no actual canteen part. It was all private rooms. But eating out has become affordable in China. Food prices are low and the economy’s booming. People can go out to eat. It was always busy and it’s just a middle level, busy restaurant with people going out and having a nice time.

DUBNER: What’s the name of the restaurant?

BISHOP: I actually can’t even remember, that’s what’s so embarrassing. To be honest, my Chinese was so bad at the time, I don’t even think I ever really registered the name of the restaurant .

DUBNER: You never learned the name.

BISHOP: But I just knew how to get there. I knew how to point in the taxi.

DUBNER: All right. You’re a white guy, and I’m guessing in a city this size, there aren’t a lot of white guys around?

BISHOP: No. I’m the only white guy who’s ever done this job probably in the history of China, let alone the history of this small town. Every day customers would arrive, and I wouldn’t really become a welcomer, I would become the guy that has the same conversation every day. All day I would just talk to customers and they would be like, “Why are you here?”

DUBNER: I see. All right,  so pretend I walk in. Greet me.

BISHOP: Huānyíng, guānglíng.

DUBNER: And then I would say …

BISHOP: You might say, “Wǒ de míngzì shì Li.” Like, “My name is Li.” Then, I might just look at the book and say, “Fǎlālì.” All the rooms were named after expensive cars, so I would say, “Oh, nǐ shì zài Fǎlālì,” which means Ferrari. But to be honest, that so rarely happens, because my Chinese was bad. He would say, “Xing Li.” It’s easy for me to say it now, I can even see the character, but back then I couldn’t. So really, I would say, “Huānyíng.” Sometimes I would get confident, I would say, “Shénme fángjian, xiānshēng,” like, “What room, sir?” They wouldn’t even acknowledge me. They would just  turn to a Chinese person, assuming that there’s no way in the world I could have gotten them to the right room.

And that, Des Bishop says, was the common response from restaurant customers in Hegang, China, seeing this American-Irish host in their Chinese restaurant.

BISHOP: This is the number one sound I would hear every day: “Ay?” Just like, “What?” Literally. That’s a sound Chinese people make. “Ay?” 50 percent of the time they would talk to me, 50 percent they would just ignore me. It’s funny because we’re very politically correct here nowadays. We’re obsessed with it. People here often think that the main issue that you would encounter is like how to work around the sensitivities of race in China. But there are no sensitivities around race. They’re all Chinese, right?

A few weeks into his greeter job, Bishop was starting to feel pretty comfortable. And then one night, he says, these three drunk guys came into the restaurant …

BISHOP: Now, this town is in Dōngběi. It’s in the Northeast of China, which has a reputation for the people being a bit rough around the edges, a bit gregarious, right? These three guys come in smoking, with their man bags — they all have man bags. I did my best, “Huānyíng, guānglíng.” Then one of them, really loudly in front of all the staff, in front of all the girls — because, by the way, it’s also a girl’s job that I’m doing. I’m the only guy that’s ever done it. That’s why I’m so high pitched when I say, “Huānyíng, guānglíng,” because I learned it off of these women that were surrounding me. So I said, “Huānyíng, guànglíng,” and then one of them. really loudly, in front of everybody, goes, “Huānyíng, guànglíng,” and does like an impersonation of my bad Chinese. A voice of making fun of me. I remember thinking, “You can not ‘Huānyíng, guànglíng,’ me. This is not acceptable.” I’m the only white guy in this town. That is definitely racist.” I know that people say there’s no such thing as reverse racism, but I definitely felt, for the first time in my life, more of an other than I’d ever felt before.

DUBNER: Did it bother you or did you …?

BISHOP: Of course it bothered me because I thought, “Hey, listen buddy. If I was in New York and I walked into a restaurant and the welcomer was like, “You are vewy wewcome.” And I went, “You are vewy wewcome.” Or “Wewcome to ouw westauwant. You want a fwied wice?”” Well, I’d be arrested. But it was immediate. Sometimes you just have a moment of immediacy when it comes to material. I immediately said, “Thank you a-hole, because that is definitely a routine. I cannot wait to tell that story in comedy clubs in the West.” Because I just knew that it was absolutely true, but an absolutely winning moment.

So if the American-Irish Des Bishop was not authentic enough as a Mandarin-speaking greeter in China, where all the customers were Chinese, would he be any more authentic as an English-speaking host at maybe a Chinese restaurant in New York or California or Salt Lake City? Or, to ask the question, we really want to answer, is the practice of hiring restaurant workers who match the cuisine fair?

DONOHUE: There a couple of different ways to answer that question.

That’s the legal expert we promised you. John Donohue teaches at Stanford Law School. He’s an economist as well as a lawyer — and he’s an expert on employment discrimination.

DONOHUE: One is, if fairness is defined by the employment discrimination laws, it probably isn’t fair or legal to do this. There are some caveats there, but as a general matter, hiring decisions are not supposed to be made on the basis of ethnicity with some caveats.

Donohue says this goes back to a certain piece of landmark American legislation.

DONOHUE: The 1964 Civil Rights Act — which was the federal law that prohibited discrimination on the basis of race, sex, gender, and so on and so forth — was one of the most important laws passed at the federal level in this country in the last century.

Title VII of that law protects against employment discrimination. But one caveat, Donohue tells us, is firm size. At the federal level, only firms with 15 or more employees are subject to this law although in some states, the number’s less. Another potential caveat, Donohue says, is the job itself.

DONOHUE: There could be a situation where the discrimination is permitted if it’s a bona fide occupational characteristic.

DUBNER: Say that phrase again.

DONOHUE: Bona fide occupational qualification.

DUBNER: A bon fide …

DONOHUE: B.F.O.Q.

DUBNER: Okay.

DONOHUE: That is a narrowly tailored terms of art. The idea behind the B.F.O.Q. defense is that you needed to hire in this otherwise discriminatory way because it’s an essential trait of the job.

DUBNER:  I see. That would explain Hooters, I guess? That’s why neither you nor I could get a job at Hooters.

DONOHUE: Exactly. Hooters wins out on that rationale.

But the B.F.O.Q defense is a tricky one. Hooters might argue that its customers don’t want to see me or John Donohue in those bright-orange short shorts and white tank tops. But how do they know? Maybe I could broaden their clientele and maximize their profits. Consider another industry that used to argue that being a certain kind of female was an essential part of the job.

DONOHUE: It goes back to the early days of the 1964 Civil Rights Law’s application, where, for example, a number of the airlines initially tried to defend their practice of hiring attractive young women to be stewardesses on these airlines. The reason they did that at the time [was], in the sixties, it was largely a male business clientele that they were trying to appeal to. Tey thought that they would find the fact of being served by a young — and often required to be unmarried woman — would be appealing to the customers.

This began to change in the late 1960’s, with a lawsuit filed by the Equal Employment Opportunity Commission, or EEOC the agency that enforces Title VII and a man named Celio Diaz, Jr. He wanted to be a flight attendant, and he sued Pan American Airlines for discrimination.

DONOHUE: They defended and said, “Look, we’re not doing anything discriminatory. We’re just satisfying our customers’ demands.” They brought in surveys that showed overwhelmingly their customers did want to be served by young, unmarried and presumably attractive women. But the courts ruled that part of what the employment discrimination laws try to do is overcome discriminatory preferences and perhaps change those discriminatory preferences by opening up the job to everyone in a non-discriminatory fashion.

DUBNER: But I wonder … Look, we just lived through a period where unemployment could be really crushing for a lot of people. There were a lot of people who were willing to take a lot of jobs that they might not have been willing to take 5 years earlier, 10 years earlier in a different economy. I could imagine that there would be some people out there, based on nothing more than what their face looks like, that said, “I would have loved to have a job waiting tables in a sushi restaurant, or a Mexican restaurant, or an Italian restaurant, but because I don’t look Asian, and I don’t look Latino, and I don’t look Italian, then those were off-limits to me.” Could you imagine a time in the perhaps not too distant future where this khiring practice is looked at as unacceptable and perhaps even illegal?

DONOHUE: Certainly could happen, and the statute is pretty clear. If you’re taking ethnicity into account without some of these other possible defenses being present, you are technically subject to an employment discrimination lawsuit.

DUBNER: But I wonder whether we might care more if these were better paying jobs, right? If we were talking about software engineering, or lawyer-ing, for instance, where the stakes are financially higher, do you think we might have a different outlook on what seems to be a casual, go-along, get-along, racial profiling hiring practice in restaurants?

DONOHUE: Absolutely. E.E.O.C. would care more. But even more to the point, Title VII gives a private right of action to anyone who’s excluded. They’re able to bring lawsuits and win attorneys’ fees, so it’s very easy to get a lawyer to take a case where there’s going to be a lot of money at stake. But interestingly, we haven’t seen much in the way of litigation in these small, ethnic cuisine scenarios. Part of that could be, as we talked about, the number of employees. You could also imagine in a slightly different twist from the way we’ve been describing it. Let’s say a Japanese restaurant owner hires relatives. Then you could say, “We’re not discriminating on the basis of ethnicity, we’re discriminating on the basis of familial relationship.” That might be a way around. But that doesn’t get to the core question that we’ve been discussing where you’re not just hiring within your ethnicity, but in a sense doing a little bit of a bait-and-switch by hiring other ethnicities.

I asked Steve Levitt the same question whether the kind of hiring that restaurants do might pass under the radar because these are relatively low-paying jobs. What if, for instance, I’m starting an e-commerce site meant to appeal to Chinese customers and I decide I only want to hire Chinese programmers?

LEVITT: It’s a tough question, because I believe a lot in the power of firm culture and in the view that intangible things can dramatically affect productivity at companies. But you have got to be super careful when you go down that path that the end result isn’t to support some massive subtext of discrimination, saying we really can’t hire black people at this company because black people don’t have the right culture for our company. That’s a trade-off. But on the other hand, when I hire people at The Greatest Good, I don’t care at all about their gender of their ethnicity, but I care a whole lot about whether they’re fun to be around and they smile a lot and they work hard. I don’t believe any of those characteristics are correlated with either gender or ethnicity. But on the other hand, why I don’t know, if you start out by hiring a bunch of rich white people, maybe you end up wanting to hire a bunch more rich white people. That can be a problem. It’s tricky. Really hard issues. The issue of discrimination is one of the trickiest ones when it comes to the courts and markets because even the right definition of what it means to be discriminatory is subtle and it depends on the context.

How about the context of … a retail clothing store? Maybe you caught this story recently, about a discrimination case the E.E.O.C. won …

FOX NEWS PRESENTER: Bit of breaking news now from the U.S. Supreme Court. Earlier today they ruled in favor of a Muslim woman who filed a lawsuit after she was denied a job at a Abercrombie & Fitch clothing store because she wore a head scarf for religious reasons. Eight to one vote this was.

LISSER: That lawsuit that just came down started when a 17-year-old teenager walked into one of our offices or called one of our offices. And we took her case all the way through the lower court, the appeals court, and then to the Supreme Court.

That’s Justine Lisser. She’s a lawyer who  works as a spokesperson for the E.E.O.C. And she says the agency has brought several suits against restaurants that hire along ethnic lines, as we’ve been talking about today.

LISSER: We sued a Houston restaurant, which was supposed to be an upscale Mexican restaurant that fired already-hired servers, one of whom was African-American, one of whom was Vietnamese, because they, quote, “didn’t speak Spanish.” But it had an extremely diverse group of patrons. It certainly didn’t have only a Spanish-speaking group of patrons. The reason, not speaking Spanish, we were alleging was a pretext to make sure that all of their servers were Hispanic, to fit in with the theme. This is not legal for any restaurant, or any employer to put in a requirement like a language requirement. It has to be — and this is the legal phrase —“job-related and consistent with business necessity.” In most instances, it is not job related and consistent with business necessity.

Lisser says one reason there haven’t been more cases like this is that the E.E.O.C. is a “charge-driven agency.” A restaurant worker would have to come to them:

LISSER: We don’t go out looking for discrimination. We don’t have the resources, or our law doesn’t really permit it. People come to us and file charges. We take those cases and investigate them. In some instances, we file a lawsuit in federal court on them. I want to make very clear that whether or not the E.E.O.C. has in fact sued anybody, we don’t condone hiring solely on the basis of ethnicity. That is illegal. You cannot decide, “We’re a Chinese restaurant, we only want Chinese.” Or, “We’re a Mexican restaurant, we only want Latinos.” Maybe we need to step up our outreach to specific ethnic chambers of commerce, if they exist, or different organizations of restaurant owners, and let them know what is and is not against the law.

Well, Bailie Hicken in Salt Lake City, Utah, thanks for the question about restaurant hiring. As you can see, there are a lot of answers, most of them not fully satisfactory. Personally, I’m kind of torn by what we learned today. If there’s a labor market that has customarily organized itself pretty well, maybe with some self-selection, and it seems to be working okay for the firms, the employees, and the customers —  well, maybe we should just leave it alone. Who wants more lawyers involved? But on the other hand, if this custom, or whatever it is, is preventing people who need jobs from getting them based simply on the way they look —  well, that’s not cool. And it goes against the grain of what a restaurant is supposed to be —  a place you can go when you’re hungry, maybe tired, and sit down, maybe with your family or a bunch of friends, maybe even alone, and pay some money for the privilege of being served, right then and there, a nice warm meal. That’s why I go to a place like Gabriela’s. A nearby place you can walk to, where you might run into other people you know … Here, to take us home, is Nat Milner.

MILNER:We want to be a place that the neighborhood comes to celebrate. We’re not trying to be the greatest restaurant in New York City. You only go to that restaurant on your birthday or your anniversary. We want to be your favorite restaurant. We want to be the place you come home, take off your tie, kick off your high heels, come down, grab a margarita and some guacamole and relax. Whether you’re celebrating surviving Monday or some milestone event, we want to be the place that the neighborhood comes to hang out. We have these little rooms here that you can just grab. I don’t know about your apartment, but we can’t entertain in ours. It’s full of kids and stuff. So whenever we get together with people, just like anyone else in the neighborhood, we grab a little room, have guests over, have some fun. Celebrate.

O. MILNER: Cheers. To honesty.

DUBNER: To honesty.

This is a transcript of the Freakonomics Radio podcast “Is It Okay for Restaurants to Racially Profile Their Employees?