Customers showed bias, but company’s on the hook
August 20, 2009 by Sam NarisiPosted in: Hiring, Law, Special Report
When hiring for some jobs, managers need to take into account how the candidates will interact with customers. But managers can’t let customer preferences sway them into making biased decisions.
In one recent case, a temp agency was sued after repeatedly failing to hire women for certain jobs. The firm served clients in the construction, freight handling, catering and janitorial industries.
Allegedly, available jobs were classified as “women’s jobs” or “men’s jobs.”
Why? Because customers asked the agency to do so. Apparently, some clients frequently asked the firm to only refer men for some positions. One female temp complained, but no change was made. She sued the temp agency, and other women joined the suit.
The firm tried to have the case thrown out, arguing that it was fulfilling its clients’ requests. But the judge didn’t buy that excuse. Since the women were technically employed by the staffing agency, the agency was liable for the bias.
The firm ended up settling for $250,000 (Cite: EEOC v. Preferred Labor LLC).
Customers ‘weren’t ready’
In another case, Walgreens was sued when a white assistant manager was promoted to store manager instead of an African-American with twice as much experience.
The company’’s reason for the decision: The store was in a white area, and the hiring manager said the customers “were not ready to have a black manager.”
Again, the judge agreed that customers’ bias shouldn’t have been used to make the hiring decision. Walgreens lost the case (Cite: Simple v. Walgreen Co.).
Managers must be trained to avoid hiring based on race, gender and other protected classes — even when it’s in response to a stated or implied customer preference. That’s no less illegal than other kinds of biased decisions.
Tags: "men's jobs", "women's jobs", bias, customer preference
August 21st, 2009 at 10:53 am
We have a customer who prefers that younger, more hip people be placed in their agency. We found this out when we sent a very highly qualified candidate there for a job interview. Based on the established rate for the position, he was a bargain. However, the client selected a candidate from another company and the informal feedback (not in writing) was that our candidate did not fit the culture, and while they didn’t say that he wasn’t chosen because he was too old, they did say that they prefer younger people. In hindsight, we realized that no one we have ever sent them for an interview over the age of 40 has been selected for a job.
It’s hard not to take that into consideration when we select candidates for positions at that agency, but we certainly try to be fair and objective.
August 21st, 2009 at 11:06 am
Thank you for your excellent and helpful posting, “Customers Showed Bias, But Company’s on the Hook.” In my many years of consulting for major corporations, “the customer is always right” is too often used either as a “reason” for exclusionary or discriminatory policies or practices, or more frequently, is used as an excuse because of fear or projection of customers’ assumed bias in the future. Sure – Some (very few) customers may be uncomfortable or “put off” if they have to interact with a manager or employee from a diverse background. Yes, potential legal actions by employees who have experienced discrimination can be costly to a company. In addition, my experience has demonstrated that, for every biased customer who might actually leave (very rare), there is a 3-fold pay-off to the company through: 1. New customers who are attracted to a business which reflect the best and the brightest talent from all communities; 2. Current customers who feel increased appreciation and loyalty to, and want to do more business with a company which stands for values of inclusion, respect and fair treatment, 3. Current and future customers who experience consistently high levels of service from company talent who are selected based upon merit; 4. Current and future customers who are served by competent, loyal, motivated, high-morale employees who are proud to work for a company which actually practices its core values; 5. Current and future customers who, through word of mouth, are motivated to patronize the company because of what they’ve heard about the company’s reputation for fair and ethical treatment of its employees and customers.
Thanks again for your important and helpful article as well as for your relevant links. Best-David Tulin, President, Tulin DiversiTeam Associates
August 21st, 2009 at 11:41 am
I worked for a company dealing with people with disabilities in group homes where sometimes it came down to an individual worked better with women or men as far as behaviors which occasionally resulted in work comp, etc. We REALLY looked at when it was in the best interests of the client to hire around the sex of the individual versus just a request. For the staff as well as the client’s safety.
August 21st, 2009 at 1:04 pm
This goes back to bias with regard to protected classes being permitted only when it’s a legitimate occupational requirement – the client/staffing agency failed to meet this test. One job I’ve wondered about is mamographer. I suspect that most clients would prefer that a woman do the job, but there is no reason that a man can’t do it. Is it illegal bias to consider only women as mamography techs? My opinion is that it would be illegal.
In the landmark Hooters case, the employer won because “male entertainment” was included in the job description as an occupational requirement. That allowed Hooters to only consider women for server positions. By the way, I disagree that servers are providing entertainment of any kind (regardless of what they put in a job description), but that’s just me.
I think the staffing agency should have counseled the client on the law and not allowed client preferences to sway their good judgment. The customer is always right up to the point that they ask for something illegal.
August 21st, 2009 at 1:21 pm
I find it interesting when the customer is the general public or another employer, that the employer is held liable, however when the customer is the government and they state that certain conditions in their contract and it is a rationale for a BFOQ.
August 24th, 2009 at 10:00 am
When I was a restaurant manager I was told to hire staff that reflected my clients. Not always easy to do when you work in an affluent area and their kids don’t get their hands dirty.
August 26th, 2009 at 8:08 pm
David Tulin: Thank you for your comments. There is one point that I feel you missed in your list of reasons to hire diverse employees. The benefit that the other employees see by working in an a culturally diverse environment has been a great morale boost in our company. As an employee, I feel that the best candidate is hired for the job, regardless of race or color. This gives me a confidence in my coworkers that I sometimes didn’t feel working for other companies where everyone was the same.
August 28th, 2009 at 9:21 am
Christie – You are correct to have highlighted a key diversity & inclusion “pay-off” when bias is overcome, and to which I had too simply alluded; namely, the powerful morale boost company employees of all backgrounds experience when they daily work in a robust and diverse work climate of talented people who are selected, included and treated based on merit rather than on bias or “comfort.” Indeed, we know that 3 of the key advantages of working with teams that are diverse in ways that are both “obvious” (i.e. demographics) as well as “less obvious” (i.e. perspectives, experiences, job functions, thinking & work styles), include increased innovation, quality, and job satisfaction.