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Starbucks’ weeklong campaign urging employees to write
“Race Together” on coffee cups to spark conversations about race relations was
not only “absurd” and “irresponsible,” according to some employment law
experts, but also had the potential to open the coffee giant to liability.
While Starbucks CEO Howard Schultz abruptly ended the
campaign on March 22 after many criticized the effort, Schultz’s idea—however
well-intentioned—could have created a breeding ground for lawsuits alleging discrimination,
harassment, a hostile work environment and wrongful termination, employment law
experts told SHRM Online.
“My recommendation to employers is to consider the risk and
whether the negative impact on employees and customers is worth it,” said Karen
Michael, president of Richmond, Va.-based KarenMichael PLC. “Beyond the legal
risk, I think there will be broken co-worker and customer relationships.”
On March 15, 2015, Schultz announced that he wanted to help improve race
relations by having baristas write “Race Together” on coffee cups. He explained
that he wanted to inspire a national dialogue about race relations.
He ended the initiative a week later, writing in a
letter to employees that while he had hoped to “stimulate conversation, empathy
and compassion toward one another,” he acknowledged that “this hasn't been
easy for any of you.”
Critics suggested the coffee company was exploiting
a sensitive issue for financial gain, and some pointed out that 16 of the
company’s 19 executives are white.
Michael called the initiative “irresponsible” and “unfair
to employees and customers,” and she added that the results could open an
employer to hostile work environment lawsuits.
“Any employee who refuses to write ‘Race Together’ will be
considered a racist,” she suggested. “There was also a form that employees were
expected to fill out, with questions about how many times the customer went to
the home of someone of another race. So Sam is white and he admits he hasn’t
been to another person’s home of a different race. Does that mean that the
barista now should shame this guy into believing he is racist?”
She also noted that such campaigns can inspire claims that
the company incited customers to harass employees.
“Customers feel empowered to say whatever they want, and I
fear they may be rude and disrespectful to Starbucks employees trying to have
these conversations,” she said.
Ed Harold, a New Orleans-based employment law attorney
with Fisher & Phillips, said employers are obligated under Title
VII of the Civil Rights Act of 1964 to protect employees from racial harassment
“You can’t assume everyone’s going to respond to this in a
respectful and intelligent manner,” Harold said. “I have this picture in my head
of a customer looking at these words on their cup, and he’s having a bad morning,
and it angers him and he says something nasty.”
Or: “Perhaps [a customer says] there was an affirmative
action candidate in my law school and he was the dumbest guy I ever met in my
life. If that offends an employee, and an employee reports it and a manager
investigates, and then [the employee is] saying, ‘Hey, wait a minute, you told
us you’re trying to start these conversations.’ ”
Employees also may claim they are discriminated against if,
for instance, they are disciplined for taking too much time having race relations
discussions or treated differently by managers because they refuse to write “Race
Together” on cups, Michael said.
It could also become difficult for managers to discipline
employees if the former has expressed strong opinions about race, Harold said. Manager
statements made during the course of a race relations conversation could come
back to be construed as racial prejudice, he said.
“The manager says, ‘I don’t think it’s right that we turn
down every white person who has a criminal record, but when we try to turn down
black people with criminal records, that’s a problem.’ Later, you terminate a
black employee, and now you’re sitting in a deposition and the lawyers are
saying, ‘Well, you said this and you really don’t like black people.’ Those
conversations can be used against you in a lawsuit.”
Wilkie is an online editor/manager for SHRM.
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