Hot Water – Walking a Discrimination Tightrope at Starbucks

The news has been flooded over the past week with the details of the recent incident where two African-American men were arrested by Philadelphia police for refusing to leave a Starbucks location. The incident has undoubtedly sparked concerns among the business community as to whether they are doing enough to stamp out discrimination and harassment in their places of business.
In this space, we usually discuss the implications of employment law. Employment law, by definition, is limited to the relationship between an employer and its employees. The issues raised in the Starbucks incident, however, are obviously broader than the traditional employment relationship and implicate the provisions of public-accommodation law.
Right now you’re probably asking yourself, “what’s public accommodation?” A public accommodation is a facility that is open for use by the public. The definition of public accommodation is extremely broad and includes business such as theaters, hospitals, arenas, supermarkets, malls, banks, the offices of mortgage brokers, lawyer’s offices, and, of course, Starbucks. In short, any type of business that serves the public likely qualifies as a public accommodation for legal purposes.
In the event a discrimination claim were to be brought as a result of the Starbucks incident, the allegation would be that Starbucks was restricting access to its restaurant (a public accommodation) based upon the individuals’ race or color. From a legal perspective, Starbucks defense would be that the individuals were not treated differently based upon their race or color, but that the actions of Starbucks employees were based upon enforcing a Starbucks company policy that is nondiscriminatory and uniformly enforced.
Starbucks could then point to other instances where the same policy was enforced against individuals with memberships in other protected classes to evidence its claim of a lack of discriminatory animus. Likewise, the individuals could then point to other instances where the policy was not enforced to show that the enforcement of the policy was a pretext for discrimination.
In the aftermath of the incident, Starbucks also announced that it was closing locations for one day in order to provide sensitivity training to its employees. Generally speaking, sensitivity training means an employer is providing training on both company policy and the basics of harassment and discrimination laws to its employees. In addition to education on the law and company policy, that training also likely includes instruction of relations with customers.
From an employer’s prospective, the Starbucks incident underscores the importance of regular training for managers and supervisors. It is imperative that management are educated on company policy and also receive regular training in employment and discrimination law.
As with other areas of employment law, managers and supervisors are the employer’s first line of defense. They are they eyes and ears of the company and can either defuse a situation with a member of the public or sink the employer with a lack of training.