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Wednesday, June 15, 2011

A New Twist on Customer Preference and Employment Discrimination

(The following is by my colleague Kerri Stone, who teaches and writes on employment and employment discrimination)

As an employment law and employment discrimination professor, I teach my students the same basic premises each year. Federal law protects many classes of people from employment discrimination. Title VII and its jurisprudence protect plaintiffs from defendant employers’ assertions that their biases are rooted those of their customers or clients. So-called “customer preference” as a justification for the intentional disparate treatment of employees will simply not fly; this would thwart the broad remedial purposes and the efficacy of the statute.

So you can imagine how delighted I was when a friend from my hometown of Long Island passed along a local, developing news story to me yesterday that, since then, has already been picked up by, among other media outlets, the Toronto Sun. This viral story has sprouted wings and taken off to such an extent that I believe that it will be getting exponentially more national media attention by the time this blog gets published. It is a story about what I will call “reverse customer preference”—about a single customer/bystander’s bringing to light and shaming a major national company over alleged employment discrimination, abuse, and bullying that is not unlawful under federal law—but should be.

     This is one of the most moving and compelling stories about workplace discrimination that I have heard recounted. Having litigated and taught in this field for several years now, I can’t say that the underlying facts are worse than the worst things I’ve read recounted. But I can say that the poignant way in which the story unfolded and was brought to light—a glaring national spotlight— is nothing short of extraordinary and spectacular. Missy Alison is a gay mom who writes a blog about her family—   the Lil Family Blog, which carries the tagline "2 Moms, 1 Toddler, and a Lot of Love." On June 13, she posted a letter that she had written to Starbucks after she returned from their store in Centereach, Long Island.  Because I don’t think that I can give a better, more vivid and earnest account of what she alleges occurred or how her role in all of this should be seen than she did, I will quote liberally from her letter.

As Ms. Alison recites, she is “a loyal customer with concerns.” She elaborates:

  I know probably 90% of the letters you receive trying to solicit something from you probably start the same way, but this is different. When I say, I am a loyal customer I mean you have had me for the better part of my adult life, hook, line and sinker. I will spend the extra $2.50 for a cup of your coffee. When I worked in Hoboken I would walk an extra three blocks for your coffee, walking past a Dunkin Donuts, Panera, Macdonalds and two bodegas to purchase from you. …When you roll out a new product, I flock to your nearest location like a moth to a flame.  …I know, and speak your “lingo” that …is sometimes so complicated I feel like I speak a second language. I even, as much as I am ashamed to admit it, buy most of the adult contemporary CDs you peddle in the front of the store. …I am your disciple. I am part of the Starbucks machine. I am your dream customer because whatever your company puts into the market, I have and I would have continued to buy. 

She continues to explain that she “never felt bad about my commitment to your chain …because I felt like you were a company that was ethically sound.  Your commitment to free trade, The Starbucks Charitable Foundation, your appearance as a diverse work environment. These are all things that I as a customer felt good about. I felt like I was supporting a company that although huge, I felt you were doing your best to “do good” and leave a positive mark on the world.”

This was, she said, “the case, until yesterday.” After clarifying that the preface to her letter was “not written to solicit anything from you. I do not want free coffee or a refund,” she proceeded to ask “as a loyal customer for the past 15 years that I have your attention. Your time and consideration.” She then proceeded to describe her experience in the store as having exposed her to

one of the most brazen and unapologetic displays of homophobia I have ever witnessed….  What was most concerning about it was it was perpetuated by …THREE of your employees and it was directed towards a fourth employee.  I don’t know this man, but I know his name is Jeffrey because the woman (who seemed to be in charge…)  loudly scolded [him]….  In the middle of your store. Two feet away from my table.   Then when Jeffrey, who was visibly shaken went to the bathroom to collect him self [sic], the women at the table went on a long…homophobic rant that lasted about five minutes. This …transpired two feet away from my table where I sat with my daughter. A three year old child, with two mothers. …

Ms. Alison then proceeded to recount the details of what I can only say sounds like, at the very least, a humiliating episode of bullying and a constructive discharge because of the employee’s sexual orientation:

The whole incident spanned about 15-20 min[utes]. It looked like it was …about something that had happened in the store, an earlier problem.  What that was, I couldn’t be certain. I do know however,…that Jeffery’s sexuality was brought into the conversation…. The …Manager[]…spoke to him in a sharp condescending manner. She told him that they were not interested in his politics or beliefs and his thoughts were down right offensive to his co-workers. They did not want to hear about his personal life. … She was even so condescending to tell him, “It might not be today, it might not be tomorrow, but ten years from now you will thank me for this…”

For what? … For learning to put up with bigotry in the work place? She kept reminding him, “You are not fired but….” as if to say, you are not fired but you are really not welcome here anymore. I assume this was a clever HR move so he would not be able to collect unemployment. He told her that he felt like he was being FORCED to leave because he felt like the “problems” at that location were not being addressed and the workplace had turned into a hostile environment.  She in turn told him that if he was not, “Part of the solution, he was the problem.” and his two weeks notice would not be needed. He asked if he would be marked by the corporation as “un-hireable. She smugly looked at him and said, “Well I don’t know. It’s not looking good for you.” Basically threatening his professional future.

…The event got more horrific, when he, who had kept his composure through the entire incident, not once raising his voice despite being attacked, got up from the table to go to the bathroom to cry in private. Then the three women turned on him like Vultures. “I’m done. I’m done. Nobody wants to hear it anymore.  I don’t care who he is dating. I don’t want to hear about it.” “He should not get upset at the things people say to him. He should be used to it. It’s not like he turned gay yesterday.” “I used to listen to it, now I’m just sick of hearing about it.” “Nobody does, but it’s over now. You won’t have to hear about it anymore.” It went on, and on and on.

The focus of their discussion… when he left the table, was not about an incident that occurred in the previous days.  It was about how they were intolerant to his lifestyle, nobody wanted to hear about the fact that he was gay, they didn’t want to be exposed to that.  …

This man, this Starbucks employee was losing his job, because he was gay. …Whatever Jeffrey’s offense might have been… that is how one of your loyal customers perceived the events as they transpired based on the actions and the statements of your “manager”.  …When Jeffrey returned from the bathroom she asked him for his keys. She was pretending to be sensitive and offered him her card if he needed to talk.  Which disgusted me because, she was anything but concerned for his well being.

Finally, Ms. Alison ended her narrative by noting that she

followed Jeffery out of the store horrified by what I had just witnessed. I said to him, “That was unreal. …He …said, “Thank you.” I hugged him and he said, “I came to this company because I thought it was supposed to be better. I thought that it was a positive and tolerant work place to work. I was passed over for promotions, they hired from the outside,…. I couldn’t take it anymore. I didn’t have a chance here.”…I walked away from Jeffrey and I started to cry.  …I strapped my daughter into her car seat and I thought about how in this society we are so self congratulating as we …promis[e] our children, “It gets better!” I found myself wondering, “Better than what?”

So many things about this account are remarkable.  In the first place, Ms. Alison is the first person to concede that she is not an activist. An self-described ordinary person thrust into an Erin Brockovich-like  scenario  in which the impetus for her to respond was simply too great to ignore, she, by her own account is

not militant and I do not have an axe to grind nor am I looking for a soap box. I’m pretty boring to be quite honest with you.  I do not even march in pride parades and I swear I own not a single thing that has a rainbow on it. I don’t celebrate my diversity, That’s simply not the type of person that I am. In fact, I’m more the type to wallow in how mediocre I am.  I am an average American who just so happens to be gay. I live my life, I raise my family and I hope to also leave a mark on this world that is positive.

She also did not post her letter looking for any personal gain or to harm or precipitate any kind of boycott against Starbucks. In fact, as she noted, as she made her final entreaty to the company:

I want to still be able to walk into a Starbucks with my head held high. I want to drink your drinks, speak your code and even buy your newest record releases, even though they make me feel middle aged and unhip… and feel good about it. I want you to restore my faith that you are the company I always thought you were. Please don’t let this incident go unnoticed. Do something, anything you can to make this right. Please protect your (former) employee.

Her request did not go unnoticed. In this age of social media, the story has gone viral. Starbucks’s facebook page now has countless pleas from around the world for the company to “Please make good Starbucks. Homophobia - like racism - should never be tolerated,” and threats that customers “will no longer purchase any Starbucks products until there is Justice for Jeffrey. And I'm not even gay. I just abhor bullying of any kind. “

Starbucks, for its part, took to facebook and its website to acknowledge the incident  rather quickly, saying, pretty much, what one would expect them to say in this day and age:

At Starbucks, we pride ourselves on being a great place to work. We are deeply dedicated to our core values – to embrace diversity and treat each other with respect and dignity. We’re committed to providing an inclusive, supportive and safe work environment for everyone. … Starbucks has supported the LGBT community for many years, and we have zero tolerance for discrimination of any kind. We have one of the largest Employer Resource Groups for LGBT employees in the United States helping to raise awareness about issues in the communities in which we live and work. Our benefits program has always offered domestic partner benefits in the United States and Canada, and Starbucks partners actively participate and organize local LGBT events in their communities.

Starbucks noted that it was “disheartened by the allegations reported in an East Coast Starbucks store and are taking immediate measures to investigate and take any steps necessary to make this right. The actions reported do not correspond with our values, who we are as a company or the beliefs we try to instill in our partners.”

Those of us who monitor employment discrimination and the ways in which it is stoked or inhibited by the law and by society cannot help but marvel at how social media outlets, so often blamed for perpetuating and enabling expressions of bullying and discrimination, seem to have facilitated the publicity and the handling of this situation in a way and at a speed that more traditional outlets could not have. Although harassment  may be unlawful under Title VII, sexual orientation is not a protected class (although it is under certain state and local laws, including laws in New York). This fact and the fact that the threshold for actionable harassment is so high means that that it is not likely that what transpired would be unlawful in many places. It certainly does not look to have been unlawful under Title VII.  Workplace bullying that is not anchored to a cognizable protected class status is entirely (and some of us say, lamentably,) lawful.

Yet, lo and behold, a single “customer’s preference” for decency, civility, and nondiscrimination against one of the most discriminated against groups in the world was able to effect awareness and change that the law in most places could not. A woman who is most likely wholly unfamiliar with the jurisprudence that says that gay people are not discriminated against “because of sex” when they are stereotyped as nonconforming with their biological sex, the notion of a “mixed motive” jury instruction or the debate that has transpired as to precisely how a court should adjudicate a “mixed motive” case, or the concept of a constructive discharge; managed to impel action, where the same situation would have delayed, if not entirely stymied the law in its attempt.  This twist should not elude those who lament the impotence of employment discrimination law and jurisprudence, as so many of us who write and think about it do regularly.  Ms. Alison’s understated yet infinitely elegant and effective entreaty has ignited passions (and undeniably effective shaming mechanisms) and mobilized people to a degree and with a speed that it is doubtful that a lawsuit could have achieved.



Posted by Howard Wasserman on June 15, 2011 at 10:22 AM in Employment and Labor Law, Law and Politics | Permalink


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Great post - I hadn't seen this story. I think it's worth pointing out - and Marcia may have been hinting at this -that these stories tend to get attention under a highly contingent set of circumstances. Even leaving aside the eloquence of the letter, and the extra (?) fortuitousness of its author herself being both gay and "ordinary," the main reason this story blew up is that Starbucks was the subject. If this had been an employer with no particular commitment to "social responsibility," or if this had been an employer more disconnected from (or less prized by) the technological elites who also consume luxury beverages, there would be no real story here. That's why I hesitate to generalize about the power of social media - not just because the volume creates so much "noise," but because a story needs a hook to catch hold. Whereas the law is supposed to protect people whether or not there's a hook, and employment law is meant to hold all employers to a standard whether or not they have a reputation for being "good," "diverse," or "worker-friendly."

[Unlike Ms. Alison, I would never characterize Starbucks as "ethically sound," given the fact that it took an enormous national campaign to pressure the company into its _limited_ free trade stance, and the pervasive problems Starbucks has had with wage theft and union busting]

Posted by: Alek Felstiner | Jun 15, 2011 9:03:21 PM

Thanks, Marcia. Your questions are provocative and important. I blogged a bit about desensitization back in February when I asked (facetiously, I hope) whether our society is now "post-gender." http://prawfsblawg.blogs.com/prawfsblawg/2011/02/are-we-post-gender.html
I feel as though we may already be teaching a desensitized generation. I recently had a very hard time teaching a class about racial or gendered bullying that's on the periphery of Title VII coverage. Many members of my class, which was comprised mainly of minority and female students, said that bullying, even gendered bullying, that fell short of what courts considered actionable, was not an issue because "Why would anyone want to work for a boss like that anyway? They should just move on," and "If you're not tough enough to handle the culture, you don't belong in the job." They had trouble understanding why telling a female employee that she resembled a "spanked child" when corrected was gendered in the slightest, and they generally lamented weakness in the face of cruelty--without an instinct to query into structural discrimination, history, or context.
On one hand, I was incredibly frustrated at my own inability to adequately convey to my class how or why the infantilizing treatment of women is uniquely gendered and, basically, why all of the above needed to be rethought. On the other hand, sitting in an incredibly diverse city at one of the most diverse schools in the nation with a generation that has clearly grown up believing that there are few to no limitations on their potential, I had to admit (briefly) that there was something nice about being in an environment in which overt discrimination is such an alien concept (especially to those who belong to classes that have historically experienced so much of it in this country) that students are more vigilant about rooting out "weakness" and "whining" than they are about discrimination--simply because they have not experienced it in its most pernicious (explicit) forms.
But then I returned to the reality that the newest and most pernicious forms of discrimination manifest themselves in discrimination’s its most nuanced, ineffable, but ineluctable forms. Because now it's not being captured by this generations antennae--or the law. This is a problem. I think that stories like this in which ordinary people are privy to and empowered to speak out against injustices of this sort are still relatively few and far between—largely relegated to artificial opportunities like those created by those “What would you do?” hidden camera shows. The proof of this is in the magnitude of the response to Ms. Alison’s letter. Sure, with increased exposure and saturation will come ennui and desensitization, but also hopefully an intolerance for bigotry in the form expressed in the story with the staying power of societal intolerance for something like racial slurs. I think the fact that so much shock and outrage was seen after her posting is a good sign that people are not becoming too desensitized to cruelty/bigotry, but they are simply ignorant of what usually goes on behind closed doors. The fact that this scene, which easily (but no more rightfully) could have gone on behind HR doors, took place in front of customers helped to fan these flames, but it also reframed the discrimination and brought it home to people in a new way.

Posted by: Kerri Stone | Jun 15, 2011 3:12:44 PM

Great post, Kerri, and I completely agree with your points about the power of bringing this kind of incident to public attention. I think the real challenge to try to harness something like social media or even traditional media is how to do it in a way that avoids it getting lost in all of the noise. We are bombarded by so much information all of the time that we just don't pay attention to a lot of it. And I suppose that another issue might be that if more people collectively pay attention to more of these stories, do we run the risk of desensitizing people to them? These are the questions I'm mulling over right now in my own work, and I'd love to hear your thoughts (or anyone else's).

Posted by: Marcia | Jun 15, 2011 12:37:21 PM

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