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Employment Law Blog
James Tarquin, P.A
As part of our commitment to assist and educate employees in fighting back against the abusive employment practices of employers, we offer a broad range of information about employment law issues in our employment blog.

Can Employers Cater To The Perceived Discriminatory Preferences Of Customers?

YES and NO check boxes with red check mark in the YES box. The concept of gender discrimination at corporate.

Having litigated employment discrimination cases in Florida state and federal courts for nearly twenty years, our Citrus County, Florida employment discrimination attorneys have learned that many employers discriminate against employees based on a desire to cater to the perceived discriminatory preferences of their customers. For example, employers make employment decisions based on the perceived preference of their customers for younger employees, employees of a particular race or gender, or employees who do not sound “foreign.” As the U.S. Seventh Circuit Court of Appeals observed in Chaney v. Plainfield Healthcare Ctr., 612 F.3d 908 (7th Cir. 2010), “it is now widely accepted that a company’s desire to cater to the perceived [discriminatory] preferences of its customers is not a defense” to discriminating against employees.

Manager Wanted To “Mirror” Store’s Clientele

Echoing the ruling in Chaney, the decision by the U.S. District Court for the Northern District of Alabama in Shackelford v. Publix Super Markets, Inc., No. 12-3581 (N.D. Ala. Oct. 14, 2014) illustrates that employers cannot justify employment decisions on grounds that they are catering to customer preferences when those preferences are discriminatory. In that case, Betty Shackelford (Shackelford) sued her former employer, Publix Super Markets, Inc. (Publix), pursuant to Title VII of the Civil Rights Act of 1964 (Title VII) and the Age Discrimination in Employment Act (ADEA). Shackelford, who is African-American, claimed that she was terminated because of her age in violation of the ADEA and her race in violation of Title VII. Shackelford was fifty-four years old when Publix fired her.

Shackelford was employed by Publix as a cashier. Shackelford alleged that management at the Publix store where she worked treated young white employees better than older African-American employees. For example, Shackelford claimed that younger white employees were allowed to socialize with each other while older African-American employees were told to return to work.

In further support of her allegations of age and race discrimination, Shackelford presented evidence from other Publix employee regarding discriminatory conduct by management at the Publix store where she worked. One Publix employee testified that he overheard a conversation in which the store manager, a man named Cook, and another management employee, a man named Black, agreed that the store’s “front end” employees (including cashiers) needed to “mirror [its] clientele.” The employee further testified that Cook and Black had another discussion in which Black suggested that it was problematic that most of the “front end” employees were black because most of the store’s customers were young and white. Another Publix employee testified that he heard Cook say, “Publix needs younger workers because they are more reliable and it makes our image look better.”

Employees Treated Differently Depending On Their Race

Publix fired Shackelford based on an incident involving taking food from the deli without paying for it. Although Shackelford paid for some of the food taken from the deli, she was not charged for and thus did not pay for two pieces of chicken taken from the deli. Despite Shackelford’s representation to Cook that she honestly thought that she had paid for all of the food taken from the deli, Cook terminated Shackelford’s employment. The reason given for Shackelford’s discharge was “theft” of the two pieces of chicken.

Shackelford presented evidence that Publix “treated employees who failed to pay for food differently depending on the employee’s race.” For example, although Publix’s management observed a white deli worker eating food from the deli without paying for it, the employee was neither disciplined nor fired for having done so. Shackelford also introduced testimony that Cook had eaten food from the deli without paying for it. Thus, the person who made the decision to fire Shackelford because she did not pay for two pieces of chicken taken from the deli, engaged in the same behavior for which he fired Shackelford.

Manager “Fulfilled His Goal”

Publix filed a motion with the trial court seeking dismissal of Shackelford’s discrimination claims. In doing so, Publix maintained that Shackelford’s discrimination claims were baseless and she was not entitled to proceed to a jury trial. The trial court denied Publix’s motion for dismissal and ruled that Shackelford had come forward with sufficient evidence of discrimination to bring her claims before a jury for resolution.

In denying Publix’s motion for dismissal, the trial court determined that Shackelford had presented direct or “smoking gun” evidence that she fired because of her age and race. The trial court found that Cook’s remark that “Publix needs more younger workers because they are more reliable and it makes our image look better,” and Cook’s agreement with Black’s suggestion that Publix needed to hire more young white women to “mirror [its] clientele,” showed a desire by the decision-maker to cater to the perceived discriminatory preferences of Publix’s customers. In particular, the trial court explained that the remarks reflected a discriminatory attitude that “older workers are not as reliable or appealing to customers as younger workers” and that “African-American cashiers are not as appealing to customers as white ones.”

The trial court also found that the number of African-American employees who worked in “front end” jobs before and after Cook’s tenure as store manager demonstrated that Cook “fulfilled his goal” of catering to the perceived discriminatory preferences of Publix’s customers. The trial court pointed out that the first five cashiers hired after Shackelford’s termination were all white, and of the twelve part-time cashiers who were hired between Shackelford’s termination and Cook leaving the store, eleven were white and only one was African-American. The trial court also noted that during Cook’s tenure as store manager, the percentage of “front end” African-American employees dropped from 33 percent to 14.8 percent.

Free Consultation With Citrus County Discrimination Lawyers

Based in Ocala, Florida and representing employees throughout Central Florida, we have been in the trenches fighting for the rights of employment discrimination victims for nearly twenty years. If you have experienced race discrimination at work or have questions about your employee rights under employment discrimination laws, please contact our office for a free consultation with our Citrus County, Florida employment discrimination attorneys. Our employment and labor law attorneys take employment discrimination cases on a contingency fee basis. This means that there are no attorney’s fees incurred unless there is a recovery and our attorney’s fees come solely from the monetary award that you recover.

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