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

(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.