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11th Circuit: Disney May Fire Worker Who Was Not 'Culturally Authentic'

   5/16/2008

12/21/07 3:42 PM

11th Circuit: Disney Lawfully Fired Worker Who Was Not ‘Culturally Authentic’

By Scott R. Eldridge

The 11th U.S. Circuit Court of Appeals held that Disney World lawfully fired a worker at its EPCOT theme park for not being “culturally authentic.”

At issue was whether Disney’s decision to terminate the employment of an Asian restaurant server at a Norwegian-themed restaurant constituted race, national origin or color discrimination.

Anesh Gupta, an Asian male, worked at Disney World as a breakfast shift server at a restaurant in the Norwegian Pavilion of Disney’s EPCOT theme park, which is widely known as an international exposition that provides guests an opportunity to learn about various cultures. The breakfast shift was regarded as an “American meal” until it was later changed to an “all-day dining experience” with a Norwegian theme.

As a result, Disney required all of its EPCOT servers at the Norwegian Pavilion to be “cultural representatives,” who interact directly with customers and are required to speak the language and possess first-hand knowledge of the country and culture they represent. According to Disney, as long as an employee meets those standards, he or she can serve as a “cultural representative,” irrespective of national origin, race or color.

Gupta asked to continue his employment as a server with the Norwegian restaurant, but Disney refused because he was not “culturally authentic.” Gupta sued claiming race, national origin and color discrimination under Title VII of the Civil Rights Act of 1964. The district court granted summary judgment in favor of Disney. Gupta appealed.

On appeal, the 11th Circuit first addressed the merits of Gupta’s claim that Disney’s stated reason for not permitting him to serve as a cultural representative—that he was not “culturally authentic”—constitutes direct evidence of discrimination. The court held that it was not direct evidence of discrimination because Disney’s selection process was not based on factors such as race, national origin or color. Instead, an employee was deemed “culturally authentic” so long as the employee could speak the language and could speak to customers about the culture being represented.

Disney, according to the court, presented evidence that it had hired individuals of Asian descent who had previously qualified to work as cultural representatives at the Norwegian Pavilion, along with Middle-Easterners and Asians who worked as cultural representatives in the Canadian Pavilion, because they were culturally authentic.

Next, the court explained that Gupta could not prove his case of employment discrimination based on circumstantial evidence for two reasons. First, Gupta could not show that he was qualified for the position. Specifically, the 11th Circuit noted that Gupta admitted that he had been to Norway for only one or two days and that he did not possess first-hand knowledge of Norwegian culture. Thus, he did not meet Disney’s nondiscriminatory requirement that its servers at the Norwegian restaurant be culturally authentic to Norway.

Second, Gupta could not show that he was treated differently from similarly situated employees. As the court noted, Disney also informed the only other nonculturally authentic employee that he could not work as a cultural representative shortly after informing Gupta. According to the Court, “[i]f a plaintiff fails to show the existence of a similarly situated employee, summary judgment is appropriate where no other evidence of discrimination is present.” Thus, Gupta could not prove as a matter of law that his race, national origin or color played a role in Disney’s decision.

Gupta v. Walt Disney World Co., 11th Cir., No. 07-11409 (Nov. 27, 2007) (unpublished).

Professional Pointer: Demanding “cultural authenticity,” which connotes ideas of ethnicity and racial background, is permissible, according to the 11th Circuit’s decision, as long as personnel decisions are based on criteria that are not directly tied to race, national origin and color. In other words, asking employees to possess certain skills and experience—even if marginally related to cultural background—does not necessarily amount to discrimination. Employers in this situation, however, must be able to present evidence that persons of all ethnic and racial backgrounds may still meet the qualifications.

Scott R. Eldridge is an attorney with the law firm Miller, Canfield, Paddock and Stone PLC , in Lansing, Mich.

Related Resource:

SHRM Diversity Toolkit

Quick Link:

SHRM Online Workplace Law Focus Area

Editor’s Note: This article should not be construed as legal advice.

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