McJobs, and Height as Bona Fide Employment Qualification
Questions of employment discrimination and of what counts as a “bona fide occupational qualification,” are always challenging.
See, for example, this story published yesterday in the Globe & Mail: Starbucks sued for firing dwarf from barista job
The U.S. government is suing Starbucks Corp. … saying the coffee company fired a barista in El Paso, Tex., because she is a dwarf.
When the employee asked for a stool or small stepladder to perform her job, Starbucks denied the request and fired her that same day, claiming that she could be a danger to customers and workers, according to the U.S. Equal Employment Opportunity Commission….
As several commenters on the Globe story point out, the space behind a Starbucks counter is not a great place for an employee to stand stationary on a stool. It’s a fast-paced workplace in which people work with hot coffee and scalding jets of steam. So, Starbucks is at least not being entirely unreasonable in suggesting that allowing their would-be employee to stand there on a stool. That, I take it, is the key legal question.
But it seems to me that there’s another issue here, which has to do with just how critical this particular job is to this particular person. How critical the job is reveals the extent to which the company’s refusal to accommodate counts as an impediment to the would-be employee’s interests. Consider a different kind of example. Consider a situation in which the job in question is a high-paid unionized job, in a town with few employers. In such a situation, having that job might be really, really important. Or consider an employee who is moving up a corporate ladder. Imagine that the job at the third rung of the ladder (but only that one) requires that the employee receive some form of accommodation. Here, accommodation is crucial not just for the job, but for the employee’s entire career trajectory.
So there are, arguably, jobs for which accommodation is exceptionally important. But (with all due respect to the nice people who make my grande no-whip mocha) most of us don’t think of a job at Starbucks that way. We think of a job as a barrista as basically just another McJob, one which pays maybe a little over minimum wage and which is interchangeable with lots of other kinds of jobs in similar industries.
On the other hand, Starbucks likely doesn’t see its jobs that way, and doesn’t want to. At least, that’s the impression one gets from visiting the company’s Career Centre. So even if it turns out that Starbucks isn’t legally required to accommodate this person, doing so might be consistent with the values they claim to embrace, and the kind of workplace image they want to project.
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Thanks to Dominic Martin for showing me this story.
The Business Ethics Blog 
Well, employment discrimination law has never focused on the question of how badly the employee needs the job. It’s merely a question of whether the employer can make “reasonable accommodations” to enable that employee to do the job (a legal rubric that comes out of the Americans with Disabilities Act – the anti-discrimination law regarding disabilities).
In order to justify denying equality in hiring, the employer has to demonstrate that the accommodations necessary are “unreasonable”, by any of various ill-defined standards. You’re right that an employer could choose to go beyond “reason” to make an accommodation, but in this case the employer is claiming that the necessary accommodation is unsafe. That would suggest that there is no way to make an accommodation that would not create even worse problems – not just for the employee but for co-workers as well, who have their own right to expect a safe workplace. If that’s true, it’s a strong argument.
Again, it has nothing to do with whether this is a good job or not. Any potential employee is entitled to equitable consideration for any job that they can do without unreasonable intervention, regardless of what that job is. But that does not guarantee that every job can be made accessible – especially if doing so makes things unsafe for others.
Kevin:
Agreed re the law: I’m definitely focusing on something beyond what law has traditionally focused on. The law currently takes into consideration just how burdensome accommodation would be for the employer. Only “reasonable” burdens are obligatory. I think it is also morally relevant to ask just how burdensome a failure to accommodate would be for the employee. I don’t necessarily advocate a particular conclusion re the present case — I agree actually that there’s probably nothing Starbucks could really do to make this particular job feasible for this particular person.
Chris
Chris wrote that “there’s probably nothing Starbucks could really do to make this particular job feasible for this particular person.” Really, Chris? Nothing? The person could not simply stand at the cash register take cash and swipe cards and possibly not be a danger to others? I am not being sarcastic – I just wanted to be sure I read your comment correctly because I did not read Kevin’s comment as saying that, originally.
Laura:
I didn’t mean to attribute that view to Kevin. And as for believing it myself, I only said “probably.” I think it depends a lot on the particular space in question. I suspect Starbucks wouldn’t have let this thing get this far if accommodation were easy. But I’m not really trying to reach a conclusion on this particular case.
Chris.
sorry – read the “agree” wrong. Okay, C – I will let you off the hook, for now ;o)
Hi Chris,
As someone who has studied McDonald’s and its employment environment for some time, I would like to write in defense of that particular culture. Specifically, I know that McDonald’s has fought against the perception behind the ‘McJobs’ refrain and all that is meant when that term is used. Part of what is to be gained is what you intimate when you discuss the third rung concept above. McDonald’s has one of the most sophisticated and replicated Promotion from Within systems in the world. In fact, Jan Fields, COO of McDonald’s North America, began at McD’s as a CASHIER when she and her husband were living below the poverty line! McDonald’s represents opportunity in America and we should not demonize those choices in any manner.
Similarly, though I have read the comments on the Starbuck’s article and understand how individuals might see the standard Starbuck’s environment as past-paced and inappropriate for a stationary server, is there some reason why Starbucks could not accommodate a role for this individual in some form? This person certainly might be a marvelous barrista or cashier – who knows? And why must we even hold this person to some higher standard (they must be exemplary in order to warrant accommodation)? I know you readers are thinking that they can surely go find some other job but, hey, do we deny this person the job of their choice simply because they are shorter than others – when they could be accommodated? Well, maybe, but let’s at least have the conversation about it. It might lead to some clarity and new ideas.
Laura:
True — I’m being unfair to McDonald’s by using the term “McJob” in its usual, pop-culture, pejorative sense.
I’m just trying to carve out some space for the idea that not all jobs are equally burdensome to lose — but McDonald’s and Starbucks may not be good examples. Maybe 7-Eleven?
Chris.
Are you being funny or just trying to bait me? ;o))
Honestly, all of these positions in our economy are important and relevant to various individuals. Chris, truly, if Madam Cashier or stock person at your corner 7-Eleven were reading your comment right now, she would be flabbergasted. She is likely supporting her family (or trying to do so), or putting herself through school, or at least putting food on her table each night. She might not be able to afford a college degree, or a holiday vacation yet, but, heck, what if these jobs did NOT exist? where would you want her to work then?
Laura:
lol, no not baiting you at all! Just trying to test out the idea that some jobs are a greater loss than others. Think in particular of situations in which employees have made “firm-specific investments” in things like training. If you are uniquely trained to work in a particular job at a particular company, then losing an opportunity at THAT job is a greater loss than losing an opportunity for a random, interchangeable job. I’m not denying at all that a particular job (even a crummy one) might be really important to a particular candidate, given their circumstances.
Also, keep in mind that we’re talking about hiring, so we’re talking about job opportunities which (since they are in some way probabilistic) different in value from actual jobs.
Chris.
here’s what 7-eleven requires:
The Sales Associate position requires the following:
High school diploma or equivalent preferred
Must be able to communicate clearly and effectively with customers and coworkers
Desire to be part of a performance-driven team
Physical Requirements
The Sales Associate position requires constant standing, bending and reaching. Frequent lifting of one to five pounds and occasional lifting of up to 40-50 pounds are required.
I’m presuming this person was the same height when they applied for the job, when their application was considered, and when they were given the job.
At the time of hiring, the group that hired them would have had to realize that some accommodation for height was required so hiring them would at minimum be considered as an implicit agreement to accommodate.
Can anyone shed light on their hiring practices to help me understand how the above would not have been considered during the hiring process itself?
Tim:
The story sort of emplies that they were going to give her a kind of try-out, to see if it could work. That seems like a reasonable move.
Chris.
Chris:
“something beyond what law has traditionally focused on . . . is also morally relevant to ask just how burdensome [to the applicant] a failure to accommodate would be”
That’s an interesting question. You seem to be suggesting revising the “reasonable accommodation” standard to weigh the impact on both the employer and the applicant, rather than just the employer (presumably, such that employers would be required to make greater accommodations for applicants who have greater need).
That’s a perfectly reasonable utilitarian balancing type of argument. Procedurally, it seems like it could be a problem, and this case is a good example: making a significant accommodation for an employee with greater needs may run up against the point where it becomes counterproductive, all things considered – or, as (supposedly) in this case, actually unsafe. The result of demanding greater accommodations for certain employees may be that it winds up being unprofitable or unsafe for the employer to hire them in the first place; at least it would narrow the range between “good hire, with some attendant costs” to “costs outweigh the benefit of hiring”. But that’s merely a question of degree. In principle, your idea is not wrong.
Another problem with it, however, is that it requires changing the entire calculus of hiring and employment – in ways that possibly erode other historical drives for workplace equality.
First, it requires the employer to determine, and consider, the degree of the applicant’s need for the job in making their employment decisions. Traditionally, an employer hires someone because it serves the employer’s interests to do so – the applicant looks out for their own interests (by deciding whether or not to take the job). The ADA requires a “reasonable” sacrifice of the employer’s interests – accepting greater costs or lower productivity – in order to create access to the workplace for the disabled, but only to a very minimal degree; that degree is defined only by what the employer wants the employee to do, and how easy it is to satisfy the employer’s demands. The employer is not required to investigate or consider why the applicant wants the job or what it means to them to have it. If the degree of required accommodation were to be scaled to the degree of the applicant’s need, then employers would have to make employment decisions on the base of the applicants’ interests, not the interests of the employers or the company. This may sound like a good thing, but it surely changes the dynamic of the business environment considerably, and as such is much more than simply a revision to the standards of accommodation for employees.
Second, introducing a test of employee need undercuts the movement toward equitable-basis evaluations for promotions and hiring. At one time, employers gave consideration to favored types of applicants or employees, sometimes through malice (racial or gender discrimination), sometimes through systematic asymmetries that led to inequity (not hiring women because they would leave to have children), sometimes through well-intentioned but discriminatory values (giving raises to employees with children because they needed the money more). Strong pressure was created to isolate personal or circumstantial factors from job-performance evaluation criteria. Again, the ADA does reverse that perspective somewhat, but only to the point of making minor workplace changes that will allow the applicant to meet the requirements of the job; it does not give disabled applicants a greater claim on the job in the first place. Changing the standards for employment in such a way that non-job-related factors become an official determinant of hiring priority opens the door to re-introducing the other kinds of circumstantial factors that historically led to systematic discrimination against women and other disadvantaged groups.
However, the idea of greater consideration for those in greater need is obviously correct as a starting point, and there may be ways it could be introduced into workplace decisionmaking. I think it would require careful implementation, particularly in the case of all-or-nothing types of decisions such as hiring, and where we usually value as level a playing field as possible.
Kevin:
Thanks for that. Very useful. My intention was not to open up to needs-based hiring, though I can see that that might be a consequence of my proposal. I agree with you that that would be a consequence to worry about.
It’s also possible that, as a philosopher, I’m focusing on hypothetical cases that might not exist in reality. So I’m thinking, at the extreme, of situations in which an applicant is applying for a once-in-a-lifetime job, and comparing that to situations in which an applicant is applying for a dime-a-dozen job. Either a utilitarian or a rights-based approach could be used to suggest that employers have stronger obligations to accommodate in the former case than in the latter. (In fact, in a fictional example in which job openings are plentiful, I can even imagine a case for saying that no accommodation would be obligatory. If employer A doesn’t want you, you can after all just go to employer B.) Real job opportunities, of course, exist along that spectrum.
Chris.
Chris – The guiding principle in this is whether providing a physical accommodation is safe not only for the person who requests it but for the other persons in that work area.
I have worked in high-risk environments for companies that made accommodations work out for people who could not successfully work in the unmodified environment. But all of them drew the line at modifications that affected safety.
EXAMPLE: A chip-maker refused to allow a profoundly deaf person to work in a production area where toxic gases abound because it was possible to be somewhere (such as inside a machine doing maintenance) where the flashing lights were not visible and the only warning was loud sirens. On hearing those sirens, you drop what you are doing and bolt for the exit … no exceptions, because the gases are lethal. Expecting others to risk their own lives by delaying their exit long enough to find the deaf one and make sure they are leaving was not acceptable.
It’s less extreme, but the stool that allows the dwarf to reach the controls and spigots is below the field of vision of the workers, and is indistinguishable from a safety hazard such as a mop bucket. I’d hate to be working in a confined area where a stool is being moved around to suit the needs of one person. I could trip over the stool and seriously burn someone with flying hot coffee, or land awkwardly and break some bones.
I would not want to work in an restaurant environment with a person whose head is below my field of vision – I don’t want to swing around with a pot of coffee and say “oops” as I leave burns on their face.