Full Podcast Transcript
NASIR: All right. Welcome to our podcast where we cover business in the news and add our legal twist. My name is Nasir Pasha and I’m hungry.
MATT: And I’m Matt Staub and I was actually going to comment; I could tell that you were because you, you know, it was straight business when you ran through that intro. It’s not going to get any easier for you because we’re talking about a restaurant.
NASIR: And all these articles have nice pictures of Indian food on it.
MATT: What are they called? Above the fold?
NASIR: Yeah, like header image. I’m literally staring at that right now, by the way.
MATT: What is that dish?
NASIR: It looks like it’s a standard chicken tikka or masala or a buttered chicken masala. I’m not sure which.
MATT: I was thinking masala but I wasn’t sure. I don’t know. It’s not pizza so I don’t know.
NASIR: I’m no expert though.
MATT: It’s either pizza or other for me.
NASIR: I was looking for some pizza episodes for today.
MATT: We’ll try to bring one in next week. Anyways, we have this Indian restaurant and it put up an ad for an experienced Indian waiter or waitress. Okay. It did this in October 2013. And then…
NASIR: Wait. Wait, if you’re listening to this, pause and think about that and see if you can tell if there’s something wrong with that posting. By the way, it’s okay if you don’t get it because it’s not obvious.
MATT: So, we have an Indian restaurant. It looks like a pretty authentic Indian restaurant looking for an experienced Indian waiter or waitress. As a result, the city’s Commission on Human Rights went after this restaurant and ended up, well, the fine was actually initially bigger. It got pushed down. It went after it to fine them because of, I guess, the discriminatory way that they put up the ad in terms of asking for an Indian waiter or waitress. Now, they did say waiter or waitress which actually is an issue I guess that could also be brought up. You can’t just put waitress; you have to put wait person. Like, actor or actress to me is kind of the same thing. I don’t really, you know…
NASIR: Can a waitress be a waiter and a waiter not be a waitress? Kind of like an actor be an actress but an actress can’t be an actor or vice versa?
MATT: People in the industry that are female in the acting industry call themselves “actors” and not “actresses.” Actresses, I guess, refers to a lesser. But isn’t it “best actress” in the Golden Globes and all that?
NASIR: I thought so. Maybe there was a connotation to it that we’re not aware of?
MATT: I don’t know.
NASIR: I used to be an actor for about 26 years or so then I quit because it got too Hollywood for me.
MATT: You were in all of those movies.
NASIR: Yeah, all of those. We don’t need to name them though.
MATT: Yeah, you were in all the Rocky movies.
NASIR: That’s about the right age, right timing for 26 years.
MATT: Well, let me finish this up here. So, they hit them with a fine. The law doesn’t allow ads that discriminate based on national origin. It ends up going to hearing. The funny part is – or one of the funny parts are – that, by the time that this hearing happened, it ended up being a year since the business had closed. So, the business wasn’t even open. It’s a pretty ridiculous premise to begin with and I guess the judge felt so bad that they reduced the fine from $7,500 to $5,000 – still saying that there was a discriminatory ad based on national origin even though it was an authentic Indian restaurant looking for an Indian waiter or waitress.
NASIR: Yeah. Let’s first talk about this commission because this is something unique – the New York City’s Commission on Human Rights. That’s not something very typical but is specifically in New York City. I’m trying to think if there’s anything else equivalent. There might be something in San Francisco that I can’t remember right now but this is not an applicant or an employee that is complaining that has some kind of cause of action of employer. This is an independent commission that is going after employers going through Craigslist ads and seeing if they’re compliant or not and, if they’re not, going after them and fining them – you know, $5,000 or more – for these violations. I mean, if you think about it, colloquially, if you use the word “waitress” to both mean waiters and waitresses without any kind of distinction, it is somewhat of a benign mistake and paying thousands of dollars for that can be pretty restrictive, but it’s understandable too because the behavior is not going to correct itself unless there’s some kind of enforcement. But I was noticing with this particular case with the Indian restaurant, if they would have said, instead of an “experienced Indian waiter or waitress,” they could have said “experienced Indian restaurant waiter or waitress,” right? Maybe they could have just claimed it was a typo. The judge obviously took a little leniency because I think they lowered it to…
MATT: It was $7,500 to $5,000 which, I mean, I’m not sure if it even matters because the business had been shut down a year. I mean, is there even any… I guess it depends if there was any money left over at that point to pay the fine.
NASIR: Yeah. For a restaurant, $5,000 is a lot, actually – for any restaurant. You know, they have thin margins sometimes.
MATT: And that’s why I struggled at the beginning of this to remember the name of this Commission of Human Rights because, yeah, like you were saying, it’s this independent agency that goes around trying to bust these businesses. Let’s take the specific facts from this case. There was no complaint from the public. There was no evidence of how many people viewed the posting. There was no direct evidence that any qualified applicant was turned away. There was a discriminatory advertisement but there was no additional proof that respondents refused to hire otherwise qualified applicants. They’re basically saying it didn’t even really affect anything but we’re still going to fine you because you can’t advertise to have an Indian waiter or waitress at an Indian restaurant. I mean, I feel like, when you go to authentic ethnic restaurants, I feel like that’s part of the ambience of being there. I mean, if I’m going to ask someone what they think of two different dishes – which I never do but if I wanted to – I would prefer someone who actually is knowledgeable and I’m guessing somebody who’s from the area or had lived there at some point would probably know more than someone who hasn’t. That’s my guess.
NASIR: Yeah, and so that’s why, in a way, it’s a kind of benign request. But, at the same time, it’s understandable because very well there could be non-Indians that could have the same kind of information experience or even better and they should be given the opportunity, especially in a job listing. But I can also see the argument that – perhaps this is me being a little too creative, I don’t think this would fly but – what if they argue that there’s a bona fide business practice of having this kind of impression of people having this Indian experience when they’re going to the restaurant? It would be kind of weird if none of the waiters or waitresses were Indian. I don’t know. I’m trying to think of some kind of exception that they could fall under with these kinds of practices. It would be tough.
MATT: That’s what I was thinking, too. I mean, that’s the Hooters exception, right? Like, it’s in other places but, yeah…
NASIR: Yeah, exactly.
MATT: I think it’s at least an argument.
NASIR: I don’t know if the NLRB would accept it and I don’t know about this commission would accept it but…
MATT: Commission of Human Rights, I mean, there’s bigger fish to fry with this. I mean, they’re just searching for stuff.
NASIR: Yeah, I agree, but you do have to be careful with what you put in these postings, and some of the things that you would typically see in some postings – for example, first of all, anything gender-specific – waiter, waitress, actor, actress – you have to be very careful with that. You know: “Looking for a housewife.”
MATT: What are you searching for on Craigslist?
NASIR: I think that was one of those work-from-home kind of posts or whatever.
MATT: “Looking for a housewife.” I know your wife was just gone.
NASIR: No, come on, don’t joke about that. But there was also, for example, even saying you have to have reliable transportation, for example, unless the job – you know, the actual job – is transporting things, what I think the better answer is, okay, you know, you have to be on time, you have to be consistent and show up to work. But, if you say “reliable job transportation,” then it could have an effect of disparaging based upon wealth which by and itself may not be a big deal but then the effective aspect of that may have implications to ethnic or racial discrimination because of that. Little things like that that you may think is benign may actually have consequences to it.
MATT: Yeah. I mean, the reason employers put those sorts of descriptions in the ads is because they want to do some sort of filtration process so it takes them less time. But, I mean, people lie on the time on qualifications for a job. I mean, I wouldn’t be surprised if – well, I guess, in this instance, I would be a little bit – like, your car example.
MATT: You know, have a reliable car, I can see someone applying and they’re like, “Do you even have a car?” and they’ll figure out a way to get around it. They’re just trying to get the job. Just be careful in the ads and you can always bump people out once you talk to them. It might just be a little bit more of your time and hassle.
NASIR: Yeah. I’ve even seen certain postings that are problematic where it says, you know, “experience between three and five years,” so it’s saying you have at least minimum three years’ experience is fine but putting a cap on it can be implying that you’re only looking for a certain age or a younger candidate which could be discrimination based on age. The same thing of saying “young and energetic” or “youthful” or even using the word “junior” or “senior” unless it’s part of a specific title like “junior associate” or whatever. And so, those kinds of things, you’d want to avoid.
MATT: This week, we hit on two different employer topics. It’s just the business owners just hate this stuff because it’s so fine-tuned that the guidelines they have to follow, you have to be careful, especially nowadays, you have to be careful about everything you say, especially if you put it in writing.
NASIR: It’s stressful. I mean, even as an attorney, it’s stressful just because there’s so many nuances. A lot of times, in contracts, it’s very intuitive. It’s like, “Okay, if I put a term in the contract, most likely it’s enforceable. I just have to be clear and have ambiguity. I know what the law is on that.” But, when it comes to employees and employment law, sometimes it’s not as intuitive. We’ve talked about this before – biggest liability by far for any employer is your employees.
MATT: Let me take another example. I don’t know what would happen with this. Let’s say I’m in San Diego. There’s a lot of Mexican restaurants. What if I put an ad up and I only put it in Spanish somewhere?
NASIR: Well, I think, if it’s a requirement that the employee speak Spanish, I think that’s okay. I think, in general, the answer is yes. But I’m sure someone can find a reason why it’s messed up. I don’t know.
MATT: Yeah, you can find problems with it. It’s discriminatory based on origin.
NASIR: That’s a tough one. Thanks for asking that.
MATT: Yeah, we haven’t done a question in a while. It could have been our question but maybe we’ll save that for another time.
NASIR: Yeah, we’ll do the research. All right. Well, I think that’s it. I’m sure we can come up with more examples of what not to do. But for now…
MATT: For now, keep it sound and keep it smart.