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Initiative must be careful to steer clear of hiring discrimination, employment law experts say
Like the “Race Together” campaign it announced earlier this year, when employees were told to wrote those words on customers’ beverage cups to spark conversations about race, Starbucks Corp.’s recent push to hire young people facing “systemic barriers to jobs” could open the coffee giant to liability—if the recruiting and hiring aren't done properly, employment law experts told SHRM Online.
In collaboration with more than a dozen other companies, Starbucks on July 13, 2015, pledged to take on thousands of 16- to 24-year-olds as apprentices, interns, and part- and full-time employees by 2018.
The coalition was initiated by Starbucks Chief Executive Howard Schultz. He said some of the new hires will replace employees who leave the company, but the majority will be filling new entry-level jobs in Starbucks cafes. The other companies pledging to hire disadvantaged young people include Alaska Air Group Inc., CVS Health Corp., Lyft Inc., Microsoft Corp. and Wal-Mart Stores Inc.
“Our approach is focused on creating a coalition of like minds with local knowledge, expertise on the ground, and the ability to scale the social impact of an initiative like this to create pathways of opportunity for the literally millions of young people who can benefit from this program,” Schultz said in a press release.
Karen Michael is president of Richmond, Va.-based KarenMichael PLC, which provides companies with HR and employment law advice. She said that while nothing prohibits the company from casting a wide net to find qualified young and minority candidates, “if the company is only seeking minority or young candidates, this is sure to lead to a claim of discrimination.”
That, she said, is because Equal Employment Opportunity Commission guidance states that it’s illegal for an employer to publish a job advertisement that discourages someone from applying for a job or shows a preference for someone “because of his or her race, color, religion, sex, national origin, age, disability or genetic information.”
“For example, a help wanted ad that seeks ‘females’ or ‘recent college graduates’ may discourage men and people over 40 from applying and may violate the law,” the guidance says.
The same standard applies to recruiting, the guidance states. “For example, an employer's reliance on word-of-mouth recruitment by its mostly Hispanic workforce may violate the law if the result is that almost all new hires are Hispanic.”
Starbucks’ media relations office did not reply to a request for comment.
‘Young’ People Singled Out
A press release on Starbucks’ website repeatedly uses the words “young” and “youth” and gives an age range for applicants of between 16 to 24 years old. It also promises that at the coalition’s first job fair in Chicago in August 2015, participating companies will collectively train more than 2,000 youths and “make at least 200 on-the-spot job offers.” Schultz said the hiring effort, dubbed the “100,000 opportunities initiative,” includes plans to hold more job fairs in other cities and has expressed that it hopes more companies will join the effort.
Starbucks currently employs more than 150,000 workers in the U.S., where it operates more than 12,000 retail stores.
Several news outlets described the hiring blitz as focused on young minorities, although the Starbucks press release refers only to “engaging … 16-24-year-olds who face systemic barriers to jobs and education.”
“While, statistically, this pool may include a greater percentage of minorities, there’s nothing overt about targeting minorities,” said Eric B. Meyer, a partner in the Labor and Employment Practice Group and chairman of the #SocialMedia Practice Group at the Philadelphia-based law firm of Dilworth Paxson LLP.
That said, Meyer acknowledged that actively seeking applicants of a particular protected class—based on race, religion, national origin, age—suggests that those outside the protected class will not receive the same consideration.
“To be fair, whether a protected class actually motivates the hiring decision is a different story,” he added. “But, the appearance of disparate treatment could be enough to create litigation.”
Another employment law attorney who asked not to be named because his firm represents one of the initiative’s companies, said that “if a company were to say, ‘We are only going to hire individuals 24 and younger, and only Hispanics and African-Americans,’ that would be a per se violation of discrimination laws.”
“Reading the list of companies involved in this, there is simply no way that is what they are doing,” the attorney said. “The purpose of the program is to increase diversity and create jobs for people who grew up in poverty. There are appropriate and lawful ways to accomplish these goals that do not take into account race and age.
They may nevertheless result in hiring a more diverse and younger group. I strongly suspect this program is going to be run in a lawful and appropriate manner to accomplish its goals without running afoul of any discrimination laws.”
‘Race Together’ Misstep?
In March 2015, Schultz announced that he wanted to spark a national conversation about race relations by having baristas write “Race Together” on coffee cups. He ended the initiative a week later, after critics suggested the coffee company was exploiting a sensitive issue for financial gain. Some pointed out that 16 of the company’s 19 executives are white. Some employment experts interviewed by SHRM Online said the initiative was not only “absurd” and “irresponsible,” but also could have opened the coffee giant to lawsuits alleging discrimination, harassment, a hostile work environment and wrongful termination.
As for the current effort, “merely because Starbucks feels it is being altruistic doesn’t eliminate the inherent right of all applicants to be free from discrimination,” Michael said.
“If a black applicant is preferred over a white one, the white one can sue saying she was denied employment on the basis of race. What will Starbucks say was the legitimate nondiscriminatory reason? The reason it made its decision is due to the person’s race. This is pure and simple discrimination. So while it is altruistic for Starbucks to attempt to make decisions based on promoting black or young workers, the 65-year-old more-qualified, white candidate is entitled to the job above a lesser-qualified, younger black candidate.
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