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

Listen now:
(Photo: Cory Doctorow)

(Photo: Cory Doctorow)

Our latest Freakonomics Radio episode is called “Is It Okay for Restaurants to Racially Profile Their Employees?” (You can subscribe to the podcast at iTunes or elsewhere, get the RSS feed, or listen via the media player above. You can also read the transcript, which includes credits for the music you’ll hear in the episode.) The gist of the episode: We seem to have decided that ethnic food tastes better when it’s served by people of that ethnicity (or at least something close). Does this make sense — and is it legal?

A listener from Salt Lake City named Bailie Hicken wrote in with an observation that I’m guessing many of you have also wondered about:

I was in L.A. last night at a sushi bar and I noticed [that] everyone working here is Asian. In fact everyone at every sushi restaurant I have ever been to — which is probably a lot, because I love sushi — is Asian. I mean I get it — it is part of the ambiance of eating at a Japanese restaurant. Nobody wants sushi made by a white guy; they just don’t. If it isn’t made by a Japanese guy with a goatee, it is a fail. So a prerequisite for being hired is that you are Asian? Just an assumption. So why is it okay that some restaurants can hire only Asians at a Japanese restaurant, but 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. I just thought it was interesting, and somehow felt like I should write you an email about it so that you could possibly find some answers for me. A girl can dream right?

We took Bailie’s questions to heart and set out to explore the issue of racial profiling in restaurant hiring — not just at sushi restaurants but lots of different kinds of restaurants (Chinese, Mexican, Indian, etc.) where the servers generally look like they come from the place where the food comes from (even if they don’t actually come from there!).

We begin with a visit to two of my favorite neighborhood restaurants on the Upper West Side of Manhattan: Gabriela’s Restaurant and Tequila Bar and Elizabeth’s Neighborhood Table. I talk with the proprietors, the husband-wife team of Nat and Liz O. Milner. Nat comes from a distinguished New York restaurant family and firmly believes that waitstaff ethnicity is an important part of the whole dining experience:

NAT MILNER: When you walk in to Gabriela’s, you don’t want to see me. I mean, you’re looking to see Gabriela. … I have red curly hair and a red beard and … I think 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?

As Milner makes clear, a lot of this ethnic-specific restaurant hiring happens by self-selection — i.e., Latino employees find their way to Mexican restaurants, Asian employees find their way to Japanese restaurants, etc. — but what if such hiring is more systematic and, potentially, discriminatory? That’s the question we ask of John J. Donohue III, a Stanford Law professor (who’s also, handily for our purposes, an economist):

DUBNER: I could imagine  there would be some people out there — based on nothing more than what their face looks like — who say, you know, 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, or I don’t look Latino, or I don’t look Italian,  those were off-limits to me. So could you imagine a time in the perhaps not-too-distant future where this kind of hiring practice is looked at as unacceptable and perhaps even illegal?

DONOHUE: Certainly could happen, and … the statute is pretty clear. And if you’re taking ethnicity into account without some of these other possible defenses being present [e.g., firm size], you are technically subject to an employment discrimination lawsuit … Interestingly, we haven’t seen much in the way of litigation in these small, ethnic cuisine scenarios.”

But as we learn from Justine Lisser of the Equal Employment Opportunity Commission, there has been some such litigation:

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. And the reason of not speaking Spanish was, we were alleging, was a pretext to make sure that all of their servers were Hispanic — again, to sort of fit in with the theme. And this is not legal. I mean, 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 of art, “job-related and consistent with business necessity.” And in most instances, it is not job-related and consistent with business necessity.

You’ll also hear from the American-Irish comedian Des Bishop, who got a job as a greeter at a Chinese restaurant, in China, and did not like how he was greeted. And Steve Levitt talks about the kind of restaurant he’d be most likely to open (fast-food, naturally) and how he’d go about hiring ethnic-appropriate waiters and waitresses if he opened a Swedish restaurant in America.

LEVITT: 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: And so how do you advertise for those jobs in the paper?

[VERY LONG PAUSE]

LEVITT: Haha. 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.

Don’t worry, Levitt comes up with an answer eventually.


CC

Interesting episode and raises good questions. However, I can't help but wonder if anyone would quickly even consider a yes if the question was "Is it discrimination if you hire only Asians for an Asian Acrobat Act?" Food is a cultural art so how is it different?

Daman

The husband & wife that owned the restaurants seemed to get a bit uncomfortable with some of the questions.

Howard Cheng

It seems to me that a language requirement could be justified. For example, I'm Chinese-American, born to immigrant parents. When my parents go to a Chinese restaurant, often that restaurant has a menu that's only in Chinese, and my parents order off of that (BTW the food off that menu is far superior to anything they have on the regular menu). If the wait staff is unable to take that order, then they wouldn't be able to fulfill the requirements of the job. OK, you say, what about a white guy who lived in China for a while and is fluent? And that might work, if they had the cultural knowledge to go with it.

I myself do find it a bit jarring when I find non-Asians working at an Asian restaurant. A local Vietnamese place has white servers who can't even pronounce "pho" correctly (they say "foh" instead of "fuh").

Michael Sheffield

Hi,
My sister in law went to a Mexican restaurant on Saturday 6/27/15. Here is an excerpt from here Facebook review. You guys are uncanny.

"The KOP one looks like an authentic Mexican restaurant both inside & out. The employees look to be mostly of Mexican heritage so it just gives you that Mexican experience. The guacamole is fresh & made table side, not just brought out to you from the kitchen."

Sarah

It would have been great to actually have perspective from someone who wasn't white. This show was the most white-euro-centric thing I have ever listened to.

Did you take into consideration anything other than "what white people want to see when eating at an ethnic restaurant?"

How about why small restaurant owners who are people of colour want to hire people that look like themselves. How about why, as white people, we feel the food isn't authentic if not served by a "ethnic person."

It is an interesting topic. Unfortunately, you approached it with zero actual integrity or nuance, other than from a white perspective about what white people like.

And yes, I am white.

Alice Beasley

I was very disheartened to listen to your podcast on "racial profiling"in the hiring of waitstaff. No big deal, says Levitt, because these are bottom end jobs. And Dubner concludes, "gosh, hard question." But it is a big deal and it's not a hard question. Taking race into account when hiring has been illegal for 50 years. It is not a Bona Fide Occupational Qualification (BFOQ) [the narrow exception to the rule that prohibits discrimination] that your customers would prefer to see a certain race serve them. That question was resolved in the courts decades ago.

Why is it important? My brief internet research shows that approximately 2.5 million people are employed as waiters/waitresses. I live in Oakland, California, a city with a large black population. Yet when I glance around almost any restaurant (other than a fast food chain) I see zero (not exaggerating) blacks working in front of house. The higher end the restaurant (thus higher tipping) the fewer blacks. Wherever I travel, it's the same. These are jobs with no educational requirements and easily learned skills, yet they remain the preserve of whites. They may be crap jobs to you but to people trying to claw their way up from the bottom they can be aspirational positions, a bridge to the middle class. Yet a bridge that is just as closed to them as the Edmund Pettus was to blacks in Selma.

I'm 70, so I was an adult when the attitudes you expressed were the prevailing sentiment in the 60's. Back then, bankers wouldn't hire black tellers because they thought their customers wouldn't be comfortable with blacks in those positions, or as store clerks, or flight attendants, or secretaries or you-name-it. That's why the Civil Rights Act of 1964 was passed. Because no one's right to work should be dependent on whether employers "think" their customers would prefer people of a certain race.

Read more...

Juliett

Wow great question and a great story. I live in Australia and this happens here too, albeit without the mexicans (sadly we dont have many here!). many restaurants here hire temporary foreign workers and/or backpackers and/or foreign students instead of local unemployed teens and youth. the same pattern seems to happen here, with Asian restaurants hiring Asians, indian restaurants hiring indians etc. they advertise as requiring 'excellent knowledge' of that particular cuisine and/or language, and will claim that the unemployed local kids cannot learn it, hence their need to import their workers. the problem with this situation in australia is not just the discrimination, it is the underhand way these restaurant jobs are used & abused to enable low-skilled immigration from low-wage countries that might not otherwise be allowed.

Jason

A major point is being missed: historically, restaurants have been opened by people offering food from within their family or local tradition - after all, they could only serve what they could get their hands on. In places with strong food cultures (like where I live in Europe), not only do most restaurants have few staff, often being run by a family still, but what is served is a reflection of the family's food culture - generally Belgian, but people from Moroccan or Turkish or whatever origin will serve that cuisine. The US lacks a strong own food identity but there is still the historical expectation of authenticity, of which ethnicity concerns in hiring is only a part. It extends to things like naming conventions (e.g. making a place seem personal by calling it 'Phil's, when there's no 'Phil' and it's owned by bankers in another city). Faux authenticity is a major aspect of American culture.

Read more...

James

The US doesn't really lack a food identity. In fact, it has a whole bunch of them, which isn't surprising given that it's about the size of Europe. So New England cooking might equate to Belgian (there really is a distinctive Belgian cuisine?), Mexican to Moroccan, etc.

Dhanayshar Mahabir

It appears that customers will ultimately select the restaurant servers. A customer who appreciates having an Asian server at a Japanese restaurant may very well provide a larger tip to such a server who has enhanced his dining experience. This should attract Asian looking people to Asian restaurants because of tip size. Others may select establishments similarly where they will increase their gratuities on account of their nationality. Regarding the Swedish restaurant all the manager has to do is simply hire one Swedish looking person to begin with and when he brags to his friends how much he is raking in because of his appearance, his Nordic looking friends will certainly be looking for a position there. How long will this process take to get the most efficient complement of appropriate looking restaurant servers ....I don't know.....but let's have faith in incentives , to select those who will ultimately be serving you tacos, sushi, and baklava.

Read more...

Don Phin

I am a 30 yr plus employment lawyer and litigated these types of cases. One fun question I'd always ask friends and even other lawyers is "Can Chinese restaurants hire only Chinese waiters?" So I had to laugh when you asked the question. It's a tough call, which is why it's such a good question!

Challenge business owners face it the law is the law and one's opinion doesn't matter. The only opinion that matters is that of a judge or jury.

After 17 years of litigation I quit representing employees because I realized their filing lawsuits does zero good for their life, with rare exception. They put their live on hold at times for years on end and they don't always win (very little publicity for the losers). When they do win, they run through the money that's left over after legal fees and costs like a lottery winner. Five years later they find themselves worse off than the day they walked into the lawyers office. Today I talk people out of filing lawsuits.

Personally, and all things being equal, I like a Chinese waiter at a Chinese restaurant, or Thai at a Thai restaurant, or the girls at Hooters. But that may not be enough to satisfy the law...or those trying to push an agenda.

Last quick story, as a kid growing up in the Bronx I was taking Spanish in 7th grade at JHS 125 and our Spanish teacher, who was Puerto Rican, decided to take the class to the best example of ethnic food in Spanish Harlem. So we all take the train to have some arroz con pollo. It was really good. But I could never get over the fact the restaurant was run by a Chinese couple.

I share a Chines Proverb:

“Settling a dispute through the law is like losing a cow for sake of a cat.”

Read more...

MMC

Interesting. Here in Wisconsin all the sushi and hibachi chefs are Mexican, and they are really talented. I would be upset if a Japanese person were cooking my hibachi vegetables, to be honest. ;)

Roy Hayward

About a year ago my brother and I ate at Panda Express. (a Chinese fast food joint for Levitt) and the entire staff was hispanic or speaking Spanish to each other. My brother chatted with the workers about it, and they actually told us there was a bounty for recruiting Asian and or Chinese speaking people to work there.

It may have just been the one store location, but its interesting and related to this podcast episode.

While I recognize that I enjoy a sushi place better with a Japanese chef. Is there a cost to letting this affect the job market? And how does that cost stack up to the cost of lowering customer satisfaction with the eatery that don't have a worker ethnic that matches the ethnic of the food?

financewhiz

Hmm. This type of discrimination is certanly an issue, but I can imagine it's difficult to monitor. It's difficult to enter a Mexican restaurant and ask if they hired their chef because he/she was Mexican, and neglected to hire someone else because he/she was not.