Freakonomics Radio - 210. Is It Okay for Restaurants to Racially Profile Their Employees?

Episode Date: June 25, 2015

We seem to have decided that ethnic food tastes better when it's served by people of that ethnicity (or at least something close). Does this make sense -- and is it legal?

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But here at Freakonomics Radio, we try to do something a little bit different. We try to find data to help understand the factors that really influence human behavior. We've been at it for five years now, putting out this free weekly podcast. And if you would like to help keep it going, well, please visit Freakonomics.com and click on the donate button. Your contribution goes to our producing partner, WNYC, the public radio station that's home to other podcasts you might love, like Radiolab, Death, Sex, and Money, and Note to Self. All these shows and Freakonomics Radio cost a lot of money to produce and Thank you. facially profile their employees. Hey, Levitt, pretend for a minute that you've decided to open up a restaurant. Can you imagine that?

Sure. Easy. Easy to imagine something like that. Would you enjoy it? No, I would hate it more than anything. But you can imagine. You can Easy to imagine something like that. Would you enjoy it? No, I would hate it more than anything. But you can imagine. You can at least imagine. I can imagine. What kind of food would you serve? Probably fast food, because it's my favorite kind of food. I think that's what I would probably open. Could you imagine opening something with an Asian cuisine?

There's a really great Asian restaurant in the basement of LaGuardia Airport. I could open one of those. Do you know what I'm talking about? You've eaten there with me. I've made you eat there. Oh, yeah, that's kind of fast food. Yeah, sure.

Yeah, exactly. Fast food Asian. The sweet and sour chicken. Yeah, yeah, yeah. Right. Bourbon chicken. Bourbon yeah. Bourbon chicken. Bourbon chicken. That's what it is, the bourbon chicken. Okay, so you would open an airport fast food Chinese restaurant would be your heart's desire.

And let me ask you this. How do you think you would approach hiring the waitstaff of this Chinese fast food airport restaurant? Do you want them to match the food in some way? Absolutely. Why is that? When it comes to ethnic food, I'm not sure why, but we've decided that it tastes better when it's served by people of that ethnicity. I'm guessing you may have noticed this too.

We certainly have in my family. My son Solomon noticed it a few years ago when he was like 10. I have some friends, New Yorkers, who lived in Japan for several years, learned the language, and then moved back to New York. And for one of their first meals back, they went to an authentic Japanese restaurant, and they started talking to the waiter in Japanese. But he did not know a word of Japanese because he was Korean. The other waiters there were Vietnamese, Filipino, Chinese. What is going on here? That was a question put to us by one of our listeners. Hey Freakonomics Radio, this is Bailey Hicken out of Salt Lake City, Utah. And I have a question

for you guys. I was at dinner last night having sushi and I had this realization that every worker at every sushi restaurant that I've ever been to is Asian or at least Asian-ish looking. So is it a prerequisite that you have to be Asian looking to work at a sushi restaurant? And if it is, can they do that? Bailey explained a bit further in an email. She wrote, if someone wanted to hire all white or American looking people at, let's say, some very Americanized restaurant, then people would be pissed. Or all black, all women, all gay, whatever, really. How do the Asians get away with it, she wrote. Let it be noted that my grandpa is Japanese, so I am a quarter, and I love the Asians. So maybe you guys could look into it for me. Maybe it could be a podcast one day. Who knows?

A girl can dream, right? Yes, Bailey, a girl can dream. And we will dream right along with you. We will try to figure out where this restaurant racial profiling comes from, if it makes sense, if it's legal. And, of course, we should know it's not only Asian restaurants we're talking about here. We're talking about restaurants that make Indian food served by people from Pakistan and Bangladesh, Italian food served by Croatian or Serbian waitstaff, and Mexican food too. Speaking of which, hey, what's your favorite Mexican dish? I love the chimichanga. From WNYC, this is Freakonomics Radio,

the podcast that explores the hidden side of everything. Here's your host, Stephen Dupner. Neither Steve Levitt nor I have ever run a restaurant. So to try to figure out the ethnic hiring patterns at restaurants, I thought we'd start with some people who actually do run a restaurant, or two. Okay, we're in the kitchen. I'm seeing some charred red peppers. This is the enchilada station and the quesadilla station. That's Nat Milner. And this is his wife, Liz O. Milner.

This kitchen smells amazing. Liz and Nat own and operate two restaurants in Manhattan on the Upper West Side. Pretty close to where I live, as it turns out. And as it turns out, my family and I really like both their restaurants. One is called Elizabeth's Neighborhood Table, named after Liz. It calls its cuisine thoughtful American comfort food. And right next door is Gabriela's Restaurant and Tequila Bar. That's where we are now.

You want to walk us through here, the kitchen, quickly? Gabriela's, as you've probably figured out by now, is a Mexican restaurant. This is Rita. Rita's in charge of everything. She makes the sauces, the mole. This is the homemade corn tortillas being made right here.

It's a real old school metal press. You just put a ball of dough in there, flatten it out, and throw it on the hot grill. Nat Milner comes from a real New York restaurant family. His uncle, Arthur Cutler, was a pioneer, a Jewish guy on Long Island, who figured out that what New York really needed was a big, noisy, family-style Italian place called Carmine's and a Chinatown-style noodle shop with roast meats called Ollie's, and Virgil's, a southern-style barbecue joint in Times Square,

back when Times Square was really Times Square. Arthur Cutler liked to zig when everybody else was zagging, as I learned from his nephew Nat. So, okay, so let's go back to the beginning of Gabriela's. First of all, who was Gabriela, the person? Well, Gabriela worked for my uncle, and she would have been helping out with my cousin and cooking meals once in a while. My uncle would come home and say, holy cow, this food is great.

What is this? It was like the late 80s, early 90s, and everything was Tex-Mex. And Gabriela was like, I don't know, this is just what I cook at home. She's Mexican, Gabriela?. And Gabriela was like, I don't know, this is just what I cook at home. She's Mexican, Gabriela? Yeah, Gabriela Hernandez. So it was kind of home-style, fresh Mexican. What part of Mexico is she from? Guadalajara.

Uh-huh, okay. And so your uncle says, hey, we should open a restaurant featuring your food? That's the way it worked? That's, yeah, yeah, basically. She brought up, her whole family came into the business and her uncle was the original chef. He came up with all the, Hector came up with all the recipes and designed

the whole menu and put it all together. So when we call Gabriela's a Mexican restaurant, it really is pretty Mexican. The moles, the ceviches, the chimichangas. Arthur Cutler, Nat's uncle, the restaurant pioneer, he died young in 1997.

Nat was living in Alaska, where he'd gone to hang out, fish salmon. And that's where he met Liz. She's from Boston. She went to Alaska as a Jesuit volunteer. By now, they'd fallen in love, married, had a kid. And when Nat's uncle died and Nat heard the family could use some help in their restaurants back in New York, Nat and Liz moved back and Nat wound up running Gabriela's.

The food today is pretty much the same as it was at the beginning. The recipes are authentic Mexican. The vibe is Mexican-ish. The tequila is most definitely Mexican. Nat and Liz regularly go to Mexico to taste tequila from the barrels to decide which batch to bring back to Gabriella's. Should we be drinking some while we talk? We could. It's almost time.

We have our own select barrels here. They'd be perfect breakfast tequila. Do you really? Is there a breakfast tequila? We can make something up. Nat showed me a selection of Blanco tequilas, that's clear, unaged tequila. Do you really? Is there a breakfast tequila? We can make something up. Nat showed me a selection of Blanco tequilas, that's clear, unaged tequila, and then some reposados. Those are the darker ones that have aged in barrels for less than a year, and some añejos, which have aged longer. So this is a 364-day reposado. Tequila tasting, according to Nat Milner, is a lot like wine tasting.

We wafted, we sniffed. You want to give it a little swirl, tip it on the side, and smell it way over the top of the glass. And then, just before noon, we drank. Cheers. Cheers. Mmm, delicious. So good. Yeah, it's kind of yummy, huh? Fantastic.

So that's quite a bit of authenticity for a Mexican restaurant in New York. What about the people who work there? So in a given, let's say, busy shift, I don't know, a Thursday night, Friday night, Saturday night, obviously get really busy. How many front of room workers do you have here? We'll have, on a real busy night in the summer, we'll have about 10 servers on. 10 servers, okay. Is that waitresses, waiters?

No, waiters and waiters. Okay, and then? And then bussers and runners and bartenders and barbacks and all the kitchen staff. Okay, all in front of the room, front of the house on a Friday night, let's say, would be then 20, 25 people? Yeah, that sounds about right. Okay. How many of them are Mexican? Well, I don't really have the breakdown.

You don't have the papers in front of you. Yeah, but no, I mean, I would say probably 40%. Oh, is that right? Uh-huh. Yeah, but everyone's pretty much Latin. Everyone speaks Spanish. A lot of people are from Colombia, Ecuador, Dominican Republic. Does it matter that a server might be Dominican serving

Mexican food in your view? I don't think that matters. Yeah, right. But how many non-Latinos do you have front of the house? Very few. Why so few non-Latinos in a Mexican restaurant? Does this come from the supply side, the restaurant, or the demand side, the customers? As Nat talked me through it, he pointed out that he doesn't actually do the hiring. The general manager does. And he is from Mexico. You have a corporate culture, right? And you have a group of people and you're trying to grow a team.

And, you know, you put out ads. A lot of ads go in spanish newspapers or especially for the back of the house on the front of the house we tend to always have a good selection of people who want to work and you know we don't really advertise they kind of come to you from other people who are working here and gotcha and um you know we have sisters and brothers and cousins and extended families working throughout the i assume they're mostly then speaking Spanish to each other on the job? Mostly, yeah. Gotcha.

Especially in the back. Especially in the back, right. So the back is all Latino as well? Mm-hmm. Gotcha. Okay, so what if I, however, am 25 years old, I just moved to New York from Pennsylvania, and I happen to be white, and I'm looking for a waiter job or a waitress job, and I come to you guys. We would hire you, for sure.

You would? Yeah, you want a job? I do not, actually. At this moment, I do not. Although I could be your tequila taster. I think I'd be good at that. We honestly don't get a lot of people like that walking in. Yeah, so that's what I want to know is how it works.

So is it a kind of self-selection in terms of the hiring and the applying? In that sense, yeah. I mean, like back in the day, you could be 16, 17, 18 years old looking for a job as a busboy. Right. Now those jobs just aren't there because you have adults who want those jobs. Like even paper boys are now adults. Yeah, I mean, you have people who, you know, why would I have a 17-year-old working here when I can have a 28-year-old man who has a baby and is trying to support his family? Now let me ask you this. For the people who come here to eat, do you think they care that the front of the house is all Latino in terms of making it kind of the right experience, whether that's about authenticity or whatnot?

I think there's a little aspect of that, but I don't give it much credence. I mean, yeah, it might be a little bit. I know that when you walk into Gabriela's, you don't want to see me. I mean... Why? I mean, I don't mind seeing you. I know, but you're looking to see Gabriela, right? I have red curly hair and a red beard.

I mean, I think there's something to say about that. I mean, that people want to come to a Mexican restaurant and be surrounded by Spanish-speaking people with dark hair. Right, yeah. For one, I feel like the pace, the way things move here, I know we've had some people come in who are not Latino, but they'll be here, but they don't stay long. I think it's just one of those things where it's moving fast, you're in the kitchen, you're speaking Spanish. It's because, so it's a the kitchen. You're speaking Spanish. It's because of the language barrier. You understand the food. You're excited about the food. If you come to work here and you don't speak Spanish and you don't fit in with the culture of the family meal and eating with people and laughing with people, you kind of feel like you're a little bit outside of it.

I even feel that when I'm walking around, but I just muscle through. But what about restaurants that serve Asian cuisine? Why would a Japanese-style sushi restaurant hire waitstaff who are Korean, Vietnamese, Filipino? Well, I think it goes back to the same thing about who walks in the door looking for these jobs. You know, if I'm Asian, I'm not going to go to a Mexican restaurant and say, you know, can I get a job here? I mean, you might. And, you know, we hire all kinds of people. But, you know, you might rather go to an Asian restaurant and feel a little more, you know, I don't have a good answer for that. But I think a lot of the people who are coming here are the

first generation. They're just here. They're trying to work their butts off. They're trying to make something. And, you know, there's some truth to that. Oh, so that's interesting. So the work ethic of the immigrant or maybe the first generation American coincides well with the needs of a restaurant that happens to be an ethnic restaurant, right? So that might be one reason why the hiring kind of self-selects itself like that. Yeah, I would think it's got something to do with it.

You know, I will also say, like, you know, you're talking about the 25-year-old kid who's coming to New York City, and he's trying to make something, and he's trying to get a job. He's not coming to New York to be a waiter. He can do that in Omaha, right? Right.

So he's coming here to do something else, whatever that might be. It's like that TV show Taxi, right? None of them are really taxi drivers, except for Alex, right? Everyone was an actor, one was a boxer, one was a comedian, whatever. It's the same kind of thing. So if he's sitting here and I have someone who's more of a, you know, sees the restaurant industry as a career, you know, I would certainly think of them over someone who's, you know, maybe going to

be here three months and then get a show on Broadway and disappear or whatever. Right, right, right. Yeah. And that is a problem that Nat and Liz have had at their other restaurant, Elizabeth's Neighborhood Table. From the street, the two restaurants are just next door, but from the back, through the kitchen at Gabriela's, you see they're actually attached. And we have a secret back door over here.

And just like that, you go from a kitchen producing guacamole and ceviche to a kitchen with pancakes and eggs on the griddle. Elizabeth's does a big brunch business with the Classics. They have a great corned beef, by the way. Lunch and dinner bring creative salads and comfort foods like turkey meatloaf and grass-fed burgers. We have wonderful soups. I'm not even sure what soups we have today. Oh, that's my corned beef. Now, I'm excited to see a can of Pam in your kitchen, because I need Pam once in a while. Do you use it regularly?

We do. I mean, on our... We've got it on the waffle iron. On the waffle iron, yeah. Okay. And the kitchen here... I don't know if I'm excited that you saw our pan. No, I know. The kitchen staff at Elizabeth's, like at Gabriela's, is all Latino. Orders are called out in Spanish. Mauro, dame unos panqueques con blueberries, por favor.

But step through the kitchen door into the dining room, and you get a very different vibe. Gabriela's has Day of the Dead figurines and Mexican decor with empty tequila barrels out front. Elizabeth's looks like a New England beach house. Wainscoting, Martha Stewart-y color palette, brass wall sconces. The waitstaff is much more of a mix than Gabriela's. Most definitely not all Latina.

So I have to say this transports me to a place, I don't mean to sound racist because it's against me, but this transports me to a place where there's a lot of white people. And look, some of my best friends are white people. So was there a, did you feel at some point any kind of, not pressure, but desire to make the waitstaff look more like East Hampton-y or Connecticut-y? We really want to reflect the neighborhood here. I mean, that's really what we wanted to do.

I mean, there's plenty of white people in the neighborhood. I live in the neighborhood. You live in the neighborhood. Yeah. We have plenty of white servers, too. Yeah, yeah, yeah. The chef at Elizabeth's Neighborhood Table is Tomas Arreñez. He's from Mexico.

Over the past decade plus, he's worked at a lot of restaurants in New York, and he says he's noticed a big shift in the demographics. Everywhere you go now, you've got to find Mexicans, all Latinos. It's not like before. I remember before, if you go to Italian cuisine,

you find all Italian people. Now it's not. But there's usually a split, he says, between the kitchen and the front of the house. If you see a lot of different restaurants, if you see in front of the house, it's like more like white people in the front. Some Latinos,

but not a lot. I think back of the house is like most of the time Latinos. If you look at restaurant and food industry jobs in the U.S. by ethnicity, as compiled by the Bureau of Labor Statistics, you'll see that 25 percent of those jobs are held by Latinos, while Latinos make up only 17 percent of the U.S. population. So for whatever reason or set of reasons, restaurant work has become a Latino stronghold, especially in the kitchen. But here's my question. Is the practice of hiring Latino servers at a Mexican restaurant or white servers at an American-style restaurant, or for that matter, Asian servers at a Japanese or Thai restaurant,

is this discrimination? I personally wouldn't call that discrimination, or at least not the kind of discrimination to get upset about. That, again, is Steve Levitt, my Freakonomics friend and co-author, who could see himself opening a Chinese fast food restaurant at an airport. The kind of discrimination we usually worry about is discrimination where employers make choices about who to hire based on criteria that are unrelated to performance on the job. So, for instance, if it's answering a phone and it's men versus women, when there's no evidence that men are better at answering phones

than women. So I would say in a Chinese restaurant, looking Asian is an important part of fulfilling the task. Those people don't cost any more to hire than the Mexican staff at a Mexican restaurant or the Indian staff at an Indian restaurant, but they enhance the experience of the people who are dining there. Because you think that the customer has a happier experience if he or she thinks that the waitstaff is related to the country where the food is from. That's the reason why it's better or more optimal? Because honestly, as you're describing what does constitute discrimination, I was thinking that this

is it, not the opposite of it. No, I think if that Chinese restaurant had not a single Asian person ever in sight, I bet that you and I would talk about that a lot when we were in the restaurant. And that would be evidence to me that it matters to the customers, whether the service staff are Asian or not. Yeah, but that may be just – I'm just curious whether maybe this is just a custom. And because it's been around for a long time, we accept it as either sensible or optimal or fair. But maybe, in fact, it's none of those. Like, what if I say, you know, sensible or optimal or fair, but maybe in fact, it's none of those. Like, what if I say, you know what? Most podcast hosts are men, or most of the hosts of the biggest

podcasts in the world are men. Therefore, that's evidence that men are plainly better. And therefore, I do not want any women touching my podcast. Isn't that pretty similar to arguing that I do not want any non-Asian people serving me Asian food? I think that's a little different because your question really intersects with how we think about markets. And in general, economists tend to think that when there are a lot of different options for workers to go out and find jobs in different places, the impact of the kind of discrimination or at least differentiation that you're describing at this Chinese restaurant just turns out not to be very important. Now, if there were no jobs, if the only jobs in the economy were Chinese restaurants, then we would really worry a lot about who gets hired and doesn't at restaurants. But in a world where there are Japanese restaurants and Mexican restaurants and Indian restaurants and fast food restaurants,

I just can't get too excited about worrying about what I would call discrimination in terms of hiring when I think you can make a good case, rightly or wrongly, that customers care who serves them. But if you think about it realistically, why should it matter what the ethnicity is of the server in a Chinese restaurant? You might very well worry about the cook, but you don't see the cook. But somehow the server, you're right, is probably just decoration, right? It's not important to the quality of the food. All right. So, Levitt, let's pretend that the restaurant that you decide to open,

or maybe we'll open it together. You and I are going to open a restaurant together, let's say in New York, and let's say it's Swedish. And we call it smorgasbord. Does this mean that you want to hire only really Swedish-looking people? Absolutely. You want to hire a bunch of tall, blonde people with blue eyes who are probably good skiers, and yeah, that's what you want? For sure. If I have a Swedish restaurant, I want to fill it up not just with people who are tall and blonde, but who have nice Swedish accents as well, whether they're real or fake. And so how do you advertise for those jobs in the paper? That was the longest pause I've ever heard out of Steve Levin.

I've heard some long pauses out of Steve Levin. Well, one thing I might do is advertise in Stockholm to really find some people who will come from Sweden and work at your restaurant. But I think I would start by saying the name of the restaurant and that we serve Swedish cuisine. Maybe I would advertise in Swedish if I really thought that I wanted to be super serious about that. Maybe I just advertise at modeling agencies, which will have lots of tall, blonde-haired, blue-eyed women.

All right. But let's be honest. It's trickier to advertise. You know, I'm not going to say whites only or blondes only for a Swedish restaurant. Whereas if I open an Indian restaurant, I know that my customers in New York, the vast majority of them may not know or care the difference between an Indian waiter, a Pakistani waiter, a Bangladeshi waiter, etc. Right. So I can lump them together comfortably. I can't lump together like blonde whites, though, comfortably, can I? And if not, is that fair? I think you can. You can lump them. Can you tell the difference between a Swede and a German and a Finn? I can't. At first blush, I'd say absolutely not right but when I say lumped together I mean

put out my net to attract them yeah so that is a different question I wonder what would happen if you put a want ad in the paper that said

looking for Swedish looking people to serve in my restaurant I'm guessing you're sued within 24 hours that's what I'm guessing you're sued within 24 hours. That's what I'm guessing. But if you're on Broadway, aren't you allowed to do that? On Broadway, they could say, we need a character who has these characteristics.

And they would say that's because it's important to how, you know, the play can't be done. A verisimilitude, right. So, like, if I decide to open, let's say, a restaurant featuring, you know, Jewish deli food, right, and I want to hire only Jewish waitstaff, I can do that okay? According to your lights? Yeah. I mean, of course, what we're saying isn't that you have to hire only Jews to work in your deli. You just have to have people who look like they're Jews, who can pass for Jews. Now, you might actually have a harder time there because what's your risk if you have a deli and people want to start speaking Hebrew or Yiddish, then you really want people who are Jewish there.

And the same, what if people come into our smorgasbord restaurant and they start speaking Swedish to our poor German waitresses who don't know anything about Swedish? We could be in trouble. And that's the sense in which I think it really is defensible to want to hire people who fit the part. And I don't know anything about the legal background on it, but I would be fascinated to find out what the legal standing is of those kind of choices. Because my hunch is that you might be able to get away with that. Are you going to have some experts on? You should have a legal expert on, for sure. Okay, Levitt, after the break, we will have a legal expert on to talk about ethnic-based restaurant hiring. The statute is pretty clear. And if you're taking ethnicity

into account, you are technically subject to an employment discrimination lawsuit. We'll also hear from someone at the federal agency that enforces discrimination law in the workplace. We don't condone hiring solely on the basis of ethnicity. That is illegal. You cannot decide we're a Chinese restaurant, we only want Chinese, or we're a Mexican restaurant, we only want Latinos. And, because the world is interesting, we'll also talk to a white Irish-American comedian who got a job as a greeter at a Chinese restaurant in China

and did not like how he was greeted. Hey, listen, buddy. If I was in New York and I walked into a restaurant and the welcome was like, oh, you're very welcome, and I went, oh, you're very welcome. Oh, welcome to our Western one. You want to fly in wires? Well, I're very welcome. Oh, welcome to our Western Wall. You want to find lies?

Well, I'd be arrested. Thank you. Users of any skill set can generate reports, create visualizations, build dashboards, and use data to find answers through a secure and collaborative platform. Nearly 200,000 users at today's most innovative businesses are working smarter by delivering the right data at the right time. And right now, listeners of Freakonomics Radio can get a customized free trial of Looker. Just visit looker.com slash freak for details. From WNYC, this is Freakonomics Radio. Here's your host, Stephen Dubner. Des Bishop is a comedian very popular in some parts of the world. So would you please welcome Mr. Des Bishop. That's him appearing on a late night talk show in Ireland. Oh yeah. Thank you. You're so welcome as always. This is cool, man. Bishop grew up in New York and moved to Ireland as a teenager. He has hosted shows on Irish TV that

are part comedy, part reality series. One of them was about sending an American-Irish comic to China to see how he made out. Des Bishop is in China. So for the past two years, Bishop lived in China. He studied Mandarin. He lived with a Chinese family and immersed himself in the culture. And he performed his stand-up act in Mandarin. Okay, so can you give us, like, maybe the beginning

or a favorite part of your Mandarin routine in Mandarin right now, and I you give us like maybe the beginning or a favorite part of your Mandarin routine in Mandarin right now and I'll see how it works on me. Okay, this is a quick one. So, 我跟我的女朋友 吵架, 她说 我很委屈。 You're just laughing at my Chinese. That's different.

I love it. I love it. I'll translate this in a minute. Okay, later you can translate. 她说 我很委屈,你知道吗? 我很委屈。 然后我看我手机, I love it. I love it. Yeah. I'll translate this in a minute. Okay. Later you can translate. He said, I'm very embarrassed. Do you know? I'm very embarrassed. Then I looked at my phone. Then he ran away.

I said, where are you going? He said, we're fighting. Look at your phone. I said, I don't know what's wrong with being embarrassed. That gets a great laugh. I actually did that on Chinese television. Got a great laugh. You had me at Tashua.

Yeah. Okay. So tell me what you actually said. So basically, that's a joke about an argument I had with my girlfriend. It's kind of the whole routine. It comes from a routine about dating a Chinese girl. Okay.

And so basically, we were having a massive argument. There's not one bit of this that's made up. It's 100% true. I have to say, when I hear you talk in Mandarin not understanding literally a single syllable, I am inclined to laugh just because you sound like a comic. Do you know what I mean? Like the melodic, you know, the melody of it and the intensity of it and the way you pace things.

So to me, your Mandarin sounds awesome. I have no idea. Is it pretty good or not really? Well, to my American and Irish friends, it's absolutely amazing. But for Chinese people, to be honest, for Chinese people, they find it amazing that I can get laughs with my very average, if not poor, Mandarin. But I get away with it with, I guess, maybe the bit of New York confidence or something. So my Chinese is not bad. For the amount of time I've been studying, it's pretty good. But it's by no means eloquently fluent.

As part of the TV show that Des Bishop was making in China for Irish TV, he took a job as a greeter in a Chinese restaurant. Not a host, just a greeter. A host actually sits people. I literally just had to greet people. That's all you did? Why would they hire someone to do that? That's a job. I mean, that's a job. That's like a real job in China. A yin bing yuan is literally a welcomer. That's their job. So you would literally say hello to people as they came in and say goodbye when they

left and thank you? Yeah. And you have to say it very loudly and kind of, it's a Chinese thing. When you're in China, you know, it's like you walk in and they're like, guan yin, guan yin, really loudly. And I guess people feel it gives them face or whatever. The job was in Hugong, a city of about a million people, relatively small as Chinese cities go. Bishop lived with the other employees in staff housing.

The restaurant fed him, paid him about $300 a month. And just tell me a little bit, just because I have no idea, I'm curious to know, is going out to eat in a restaurant like this, in a city like this, is it kind of a special deal? Or is it more like a once a week thing that families will do? Is it more for celebration? Is it more, you know, adults or families or even teenagers? Just tell me a little bit about that. Mostly adults and families. I mean, the speciality of this restaurant is it's all rooms there's no actual there's there was no actual like you know

like canteen part it was all like private rooms uh but but you know eating out has become affordable in china i mean food prices are low and you know the economy is booming and people can go out to eat so it was largely always busy and uh it's just a middle level, just busy, busy restaurant with people just going out and having a nice time. What's the name of the restaurant? I actually can't even remember. That's what's so embarrassing. To be honest, my Chinese was so bad at the time. I don't even think I ever really registered the name of the restaurant, but I just knew how to get there. I knew how to point in the taxi. All right. You're a white guy and I'm guessing in a city this size, there aren't a lot of white guys around?

No, I'm the only white guy that's ever done this job, probably in the history of China, let alone the history of this small town. So every day customers would arrive, and I wouldn't really become a welcomer. I would become the guy that has the same conversation every day, all day. I would just like talk to customers, and they'd be like, why are you here? right so tell me okay so pretend i walk in greet me and then i would say you might say uh washing washing lee like my name is lee and then i might just look at the book and say uh falali all the rooms were named after expensive cars. So I would say, which is Ferrari. And so then I would,

but to be honest, that so rarely happened because my Chinese was bad. So like he would say, and like, it's easy for me to say it now. I can even see the character, but back then I couldn't,

you know? So really what I would say, sometimes I would get confident. I would say, like what room, sir? And they wouldn't even get confident. I would say, like, what room, sir? And they wouldn't even acknowledge me. They would just turn to a Chinese person, assuming that there is no way in the world I could have got them to the right room. And that, Des Bishop says, was the common response from restaurant customers in Hougang, China, seeing this American-Irish host in their Chinese restaurant.

This is the number one sound I would hear every day. Eh? It's just like that. What? Literally, because that's a sound Chinese people make. Eh? And then so 50% of the time they would talk to me, 50% they would just ignore me. You know, Chinese people, it's funny because we're very politically correct here nowadays

and we're kind of obsessed with it. And people here often think that the main issue that you would encounter is like how to work around the sensitivities of race in China. But there are no sensitivities around race. They're all Chinese, right? A few weeks into his greeter job, Bishop was starting to feel pretty comfortable. And then one night, he says, these three drunk guys came into the restaurant. Now, this town is in Dongbei.

It's in the northeast of China, which has a reputation for the people being a bit rough around the edges, a bit gregarious, right? So these three guys come in smoking with their man bags. They all have man bags. And I did my best huanying guanling,

and then one of them really loudly in front of all the staff, like in front of all the girls, because, by the way, it's also a girl's job that I'm doing. I'm like the only guy that's ever done it. That's why I'm so high-pitched when I say huan yin guan ling, because I learned it off of these women that were surrounding me.

So I said huan yin guan ling, and then one of them really loudly in front of everybody goes, huan yin guan ling, and does an impersonation of my bad Chinese, you know, like a really sort of voice of making fun of me. And I remember thinking like,

you cannot, this is not acceptable. I'm the only white guy in this town that is definitely racist. Now I know that people say there's no such thing as reverse racism, but I definitely felt for the first time in my life, just like more of an other than I'd ever felt before. Did it bother you or did you, did you just say that's the way? Of course it bothered me because

I thought, hey listen buddy, if I was in New York and I walked into a restaurant and the welcome was like, oh you're very welcome. And I went oh, you're very welcome. Oh, welcome to all Western world. You want to find wise? Well, I'd be arrested. But I immediately, I mean it was immediate. Sometimes you just have a moment

of immediacy when it comes to material. I immediately said, thank you, a-hole, because that is definitely a routine. I cannot wait to tell that story in comedy clubs in the West, because I just knew that it was like absolutely true, but an absolutely winning moment. So if the American Irish Des Bishop was not authentic enough as a Mandarin-speaking greeter in China, where all the customers were Chinese, would he be any more authentic as an English-speaking host at maybe a Chinese restaurant in New York or California or Salt Lake City? Or, to ask the question we really want to answer, is the practice of hiring restaurant workers who match the cuisine fair? Yeah, there are a couple of different ways to answer that question. That's the legal expert we promised you.

John Donahue teaches at Stanford Law School. He's an economist as well as a lawyer, and he's an expert on employment discrimination. One is if fairness is defined by the employment discrimination laws, it probably isn't fair or legal to do this. And there are some caveats there. But as a general matter, hiring decisions are not supposed to be made on the basis of ethnicity with some caveats. Donahue says this goes back to a certain piece of landmark American legislation. The 1964 Civil Rights Act, which was the federal law that prohibited discrimination on the basis of race, sex, gender, and so on and so forth, was one of the most important laws passed at the federal level

in this country in the last century. Title VII of that law protects against employment discrimination. But one caveat, Donahue tells us, is firm size. At the federal level, only firms with 15 or more employees are subject to this law, although in some states the number is less. Another potential caveat, Donahue says, is the job itself. There could be a situation where the discrimination is permitted if it's a bona fide occupational characteristic. Say that phrase again.

A bona fide occupational qualification. A bona fide occupational.. A bona fide occup... A BFOQ. Okay. That is a narrowly tailored term of art. And the idea behind the BFOQ defense is that you needed to hire in this otherwise discriminatory way because it's sort of an essential trait of the job. Ah, I see. That would explain Hooters, I guess, yes? That's why neither you nor I of the job. Ah, I see. That would explain Hooters, I guess, yes?

That's why neither you nor I could get a job at Hooters. Exactly. So Hooters wins out on that rationale. But the BFOQ defense is a tricky one. Hooters might argue that its customers don't want to see me or John Donahue in those bright orange short shorts and white tank tops. But how do they know? Maybe I could broaden their clientele and maximize their profits. Consider another industry that used to argue that

being a certain kind of female was an essential part of the job. It goes back to the early days of the 1964 civil rights laws application, where, for example, a number of the airlines initially tried to defend their practice of hiring attractive young women to be stewardesses on these airlines. And the reason they did that at the time in the 60s, it was largely a male business clientele that they were trying to appeal to. And they thought that they would find the fact of being served by a young and often required to be unmarried woman would be appealing to the customers. This began to change in the late 1960s with a lawsuit filed by the Equal Employment Opportunity Commission, or EEOC. That's the agency that enforces Title VII. And a man named Celio

Diaz Jr. He wanted to be a flight attendant, and he sued Pan American Airlines for discrimination. And they defended, they said, look, we're not doing anything discriminatory. We're just satisfying our customers' demands. And they brought in surveys that showed overwhelmingly their customers did want to be served by young, unmarried, and presumably attractive women. But the courts ruled that part of what the employment discrimination laws try to do is overcome discriminatory preferences and perhaps change those discriminatory preferences by opening up the job to everyone in a non-discriminatory fashion. But I wonder, you know, look, we just lived through a period where unemployment could be really crushing

for a lot of people. And there were a lot of people who were willing to take a lot of jobs that they might not have been willing to take five years earlier, 10 years earlier in a different economy. And I could imagine that there would be some people out there based on nothing more

than what their face looks like that said, you know, I would have loved to have a job waiting tables in a sushi restaurant or in a Mexican restaurant or in an Italian restaurant. But because I don't look Asian and I don't look Latino and I don't look Italian, then those were off limits to me. So could you imagine a time in the perhaps not too distant future where this kind of hiring practice is looked at as unacceptable and perhaps even illegal? It certainly could happen. And the statute is pretty clear. And if you're taking ethnicity into account without some of these other possible defenses being present, you are technically

subject to an employment discrimination lawsuit. I was wondering if we might care more if these were better paying jobs, right? I mean, if we were talking about software engineering or lawyering, for instance, where the stakes are financially higher, do you think we might have a different outlook on this kind of what seems to be just a, you know, kind of casual go along, get along racial profiling hiring practice in restaurants? Yeah, absolutely. The EEOC would care more, but even more to the point, Title VII gives a private right of action to anyone who's excluded, and they're able to bring lawsuits and win attorney's fees. So it's very easy to get a lawyer to take a case where there's going to be a lot of money at stake. But, you know, interestingly, we haven't seen much in the way've been describing it that, you know, let's say a Japanese restaurant owner hires relatives.

Then you could say, well, we're not discriminating on the basis of ethnicity. We're discriminating on the basis of, you know, familial relationship. And that might be a way around. But that doesn't get to the core question that we've been discussing, where you're not just hiring within your ethnicity, but in a sense doing a little bit of a bait-and-switch by hiring other ethnicities. I asked Steve Levitt the same question, whether the kind of hiring that restaurants do might pass under the radar because these are relatively low-paying jobs. What if, for instance, I'm starting an e-commerce site meant to appeal to Chinese customers and I decide I only want to hire Chinese programmers? Because I believe a lot in the power of firm culture and in the view that intangible things can dramatically affect productivity at companies.

But you've got to be super careful when you go down that path that the end result isn't to support some sort of massive subtext of discrimination, saying, well, we can't hire black people at this company because black people don't have the right culture for our company. I mean, that's the trade-off. But on the other hand, when I hire people, say, at The Greatest Good, I don't care at all about their gender or their ethnicity, but I care a whole lot about whether they're fun to be around and they smile a lot and they work hard. And I don't believe any of those characteristics are correlated with either gender or ethnicity. But on the other hand, I don't know. If you start out by hiring a bunch of rich white people, maybe you end up wanting to hire a bunch more rich white people, and that can be a problem. It's tricky, really hard issues.

The issue of discrimination is one of the trickiest ones when it comes to the courts and when it comes to markets and thinking about it. Because even the right definition of what it means to be discriminatory is subtle, and it depends on the context. How about the context of a retail clothing store? Maybe you caught this story recently about a discrimination case the EEOC won. Bit of breaking news now from the U.S. Supreme Court. Earlier today, they ruled in favor of a Muslim woman who filed a lawsuit after she was denied a job at an Abercrombie & Fitch clothing store because she wore a headscarf for religious reasons.

Eight to one vote this was. That lawsuit that just came down started when a 17-year-old teenager walked into one of our offices or called one of our offices and we took her case all the way through the lower court, the appeals court, and then to the Supreme Court. That is Justine Lisser. She's a lawyer who works as a spokesperson for the EEOC. And she says the agency has brought several suits against restaurants that hire along ethnic lines, as we've been talking about today.

We sued a Houston restaurant, which was supposed to be an upscale Mexican restaurant that fired already hired servers, one of whom was African-American, one of whom was Vietnamese, because they, quote, didn't speak Spanish. But it had an extremely diverse group of patrons. It certainly didn't have only a Spanish-speaking group of patrons. And the reason of not speaking Spanish was, we were alleging, was a pretext to make sure that all of their servers were Hispanic, again, to sort of fit in with the theme. And this is the legal phrase of art, job-related and consistent with business necessity. And in most instances, it is not

job-related and consistent with business necessity. Lisser says one reason there haven't been more cases like this is that the EEOC is a charge-driven agency. In other words, a restaurant worker would have to come to them. We don't go out looking for discrimination. We don't have the resources or our law doesn't really permit it. People come to us and file charges and we sort of take those charges and investigate them. and in some instances we file a lawsuit in federal court on them. And I want to make very clear that whether or not the EEOC has in fact sued anybody, we don't condone hiring solely on the basis of ethnicity. That is illegal.

You cannot decide we're a Chinese restaurant, we only want Chinese, or we're a Mexican restaurant, we only want Latinos. And maybe we need to step up our outreach to specific ethnic chambers of commerce, if they exist, or different organizations of restaurant owners, and let them know what is and is not against the law. Well, Bailey Hicken in Salt Lake City, Utah, thanks for the question about restaurant hiring. As you can see, there are a lot of answers, most of them not fully satisfactory. Personally, I'm kind of torn by what we learned today. If there's a labor market that has customarily organized itself pretty well, maybe with some self-selection, and it seems to be working okay for the firms,

the employees, and the customers, well, maybe we should just leave it alone. Who wants more lawyers involved? But on the other hand, if this custom, or whatever it is, is preventing people who need jobs from getting them based simply on the way they look, well, that's not cool. And it goes against the grain of what a restaurant is supposed to be, a place you can go when you're hungry, maybe tired, and sit down, maybe with your family or a bunch of friends, maybe even alone, and pay some money for the privilege of being served right then and there a nice warm meal. That's why I go to a place like Gabriela's, a nearby place you can walk to where you might run into other people you know. Here to take us home is Nat Milner.

We want to be the place where the neighborhood comes to celebrate. We're not trying to be the greatest restaurant in New York City. You only go to that restaurant on your birthday or anniversary. We want to be your favorite restaurant. We want to be the place you come home, take off your tie, kick off your high heels, come down, grab a margarita and some guacamole and relax. Whether you're celebrating Surviving Monday or some milestone event, we want to be the place

that the neighborhood comes to to hang out. We have these little rooms here that you can just grab. I don't know about your apartment, but we can't entertain in ours. It's full of kids and stuff. So whenever we get together with people, just like anyone else in the neighborhood, we grab a little room, have guests

over, have some fun. Celebrate. Cheers. To honesty. To honesty. Hey, podcast listeners. Did that episode make you hungry? If so, we have just the follow-up episode for you next week.

It's a replay of one of our favorite episodes of all time, in which the hot dog eating champion Takeru Kobayashi tells us more than we ever thought there was to know about the sport of competitive eating. They said that they took me to outer space and that some aliens had given the man two stomachs. Oh, he's taking muscle relaxers. You were doping, yeah. Did you take muscle relaxers? No. Do you have two stomachs? No. He thought about it. I had to think about it for a moment. Some limits are real and others are just in our mind. 50 hot dogs in 12 minutes? No problem. That's next time on Freakonomics Radio. Thank you. Merritt Jacob and Christopher Wirth. We had help this week from Rick Kwan. If you want more Freakonomics Radio,

you can subscribe to our podcast on iTunes or go to Freakonomics.com, where you'll find lots of radio, a blog, the books, and more. Thank you.