Is It Okay To Hire Cooks To Match the Cuisine? (Part I)

We've all noticed it: why do many ethnic restaurants seem to have servers and wait staff matching that ethnicity? Why do some customers feel that ethnic food served by staff of a different ethnicity is less "authentic"? Does it bother you when you peek behind the kitchen door at, say, a Chinese restaurant, and see that the people making the food are clearly not Asian?

Although it's not clear whether customers actually do prefer food served by people of matching ethnicity, it does seem, at least anecdotally, to be a real social phenomenon. But what does the law have to say?

Why do some customers feel that ethnic food served by staff of a different ethnicity is less "authentic"?

Generally speaking, it is illegal to make hiring decisions based on race, color, religion, sex, and national origin. Employment discrimination statutes and case law clearly provide that making adverse employment decisions based solely on national origin or other protected classifications can make a restaurant liable for employment discrimination (see e.g., Title VII of the Civil Rights Act of 1964, Age Discrimination in Employment Act of 1967, Title I and Title V of the Americans with Disabilities Act of 1990 as amended, Title II of the Genetic Information Nondiscrimination Act of 2008, and state laws such as California's Fair Employment and Housing Act).

Generally speaking, it is illegal to make hiring decisions based on race, color, religion, sex, and national origin.

There are some exceptions to this rule, however. Title VII of the 1964 Civil Rights Act prevents against employment discrimination, but it does not apply to companies with less than 15 employees (see 42 U.S.C. §§ 2000e(b)), or if the discrimination is required for the job as a "bona fide occupational qualification necessary to the normal operation of that particular business or enterprise." See 42 U.S.C. §§ 2000e-2(e)(1). In the case of small ethnic cuisine restaurants, it seems that many could fall under the carve-out for restaurants with less than 15 employees. And the "bona fide occupational qualification" (or "BFOQ") defense could be used to justify apparently discriminatory employment decisions if the restaurant can show that it is an essential trait of the job (Hooters is an example of this).

Title VII of the 1964 Civil Rights Act does not apply to companies with less than 15 employees, or if the discrimination is required for...