Document Type

Article

Publication Date

2016

Abstract

Employers profit from giving customers opportunities to discriminate against service workers. Employment discrimination law should not, but in many ways does, allow them to get away with it. Employers are driven by self-interest to please customers, whose satisfaction is critical to business success and survival. Pleasing customers often involves cultivating and catering to their discriminatory expectations with respect to customer service — including facilitating customers’ direct discrimination against workers.

Current doctrine allows employers to escape responsibility for customers’ discrimination against workers because it takes an overly narrow view of the employment relationship. The doctrine focuses on the formal lines of authority that run between two parties: the employer and employee. In fact, the structure of service work relationships is triangular and not dyadic. Because of the characteristics of service work and the importance of customer satisfaction to the employer’s bottom line, customers play a powerful role in determining the terms, conditions, and privileges of employment.

This article argues that the law should acknowledge and hold employers accountable for the ways in which they facilitate, and benefit from, customers’ discrimination against service workers. To do so, employment discrimination law needs a model of employer liability to reach discrimination that originates beyond the employer-employee dyad, in recognition of both the triangular structure of, and the power of the customer in, interactive service work.

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