Is the Customer Always Right?: The Hidden Danger of Always Giving Your Customers What They Ask For
Imagine that an airline, in an effort to increase lagging profits and market share, conducts market research to determine what its customers prefer. Beyond the normal requests for better food and more on-time flights, one preference is the most prevalent: customers prefer female flight attendants. How should the airline proceed in light of this information? Should it fire its male flight attendants and replace them with females? Should it retain its current male flight attendants, but hire only female flight attendants going forward? If the airline chooses either of these two courses, its decision to honor customers’ preferences will risk serious liability under federal non-discrimination laws.
Title VII of the Civil Rights Act of 1964 (Title VII) protects individuals from discrimination based on religion, gender, national origin, and race. The Age Discrimination in Employment Act (ADEA) protects individuals over the age of forty from age discrimination. An employer may hire individuals based on any of the characteristics protected by these statutes only if the characteristic qualifies as a bona fide occupational qualification (BFOQ) for that particular position. For instance, to show that "being female" is a BFOQ for the position of flight attendant, the airline would have to meet a stringent test of showing that having all female attendants is essential for the business to run successfully and that a factual basis exists for believing that all or substantially all males would be unable to safely and efficiently perform the duties of the job. The Fifth Circuit Court of Appeals held long ago that an actual airline’s policy of exclusively hiring females for its flight attendant positions would not meet this test because female attendants were only "tangential" to the essence of the airline’s business – transporting passengers safely from one point to another – and no one had suggested that having male attendants would "so seriously affect the operation of an airline as to jeopardize or even minimize its ability to provide [that service.]"
In light of cases such as this, job qualifications based on mere customer preference simply do not satisfy the BFOQ test. So what would satisfy that test? Here are two examples:
1. A manufacturer of women’s clothing advertising for only female models.
2. The Transportation Security Administration (TSA) assigning only female screeners to conduct full-body checks of female airline passengers.
In both scenarios, the protected characteristic qualifies as a key function of the job. The clothing manufacturer cannot require that its designers all be female, however, because the gender of the designers would have no effect on his or her ability to perform the job. Similarly, the TSA cannot require that its agents who check passenger identification all be female for the same reason. Rather than selecting employees based on a particular customer preference relating to a protected characteristic, then, employers should be sure to select employees based on their abilities to perform the key functions of the job in question.
In addition to affecting companies that directly serve the public, the temptation to cater to customer preference may also affect staffing agencies, security companies, and other companies that provide employees to another entity. For example, what if a sports venue informs its security company that it should only provide young males for security detail at the venue? If the security company honors that request without analyzing its ramifications, both the sports venue and the security company could face liability under Title VII and the ADEA for that decision. State anti-discrimination laws could also be implicated. Indeed, a group of female security guards recently claimed that a well-known Atlanta institution instructed its security company not to employ females for its outside security detail, resulting in women losing their jobs or being reassigned. The Equal Employment Opportunity Commission determined that reasonable cause existed to conclude that both the Atlanta institution and the security company had discriminated against the women in violation of Title VII. If a court agrees, the security company’s decision to honor the preferences of its customer (the institution) could lead to disastrous results in litigation.
So how should you manage this risk? During these tough economic times, it is probably not the best practice to ignore customer preference altogether. Instead, understand that honoring some customer preferences for individuals of certain genders, ages, races, religions, or nationalities or other protected classifications could create liability under federal non-discrimination laws. Be sure that your customer understands this as well. Rather than immediately implementing a potentially discriminatory customer preference, first try to determine what, if anything, may be motivating that preference for individuals of certain genders, ages, races, religions, or nationalities.
Perhaps the sports venue discussed above believed that it needed security guards who could lift fifty pounds to sufficiently safeguard the area, and further believed that only young men could lift fifty pounds (thereby considering only young men qualified for the job). Knowing this information would provide the security company with the opportunity to remind the customer that both men and women of many ages are able to lift fifty pounds. If lifting fifty pounds were truly a key function of the job, the security company could then assure the sports venue that it would supply guards who could lift fifty pounds, regardless of gender or age. The sports venue gets what it needs (qualified security guards) and both parties avoid potential legal liability.
If there is no hidden or other motivation behind a discriminatory customer preference that can be addressed in a non-discriminatory fashion (like the example of the security guards above), remind the customer that there are laws prohibiting discrimination in the workplace and alert them of the potential liability that comes with hiring decisions based on protected characteristics that do not qualify as BFOQ’s. If the customer insists and you ultimately decide to honor that preference, understand that you are taking on potential liability under Title VII and other laws prohibiting discrimination.