You can require ‘Cultural authenticity’ in some circumstances

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in Discrimination and Harassment,Human Resources

Some retail and service establishments strive to create an authentic experience for their customers. That may mean they seek out employees who can best create that experience and reject some applicants if they aren’t a close enough fit. That “cultural authenticity” may be a bona fide occupational qualification, and rejecting applicants who don’t fit the mold may be legal.

But you can’t go overboard and eliminate everyone who doesn’t look or act authentic. Instead, make absolutely sure you establish reasonable qualification requirements that are completely blind to race, ethnicity and other protected classifications. That’s what the employer did in the following case.

Recent case: Anesh Gupta, who is not of Norwegian extraction and had spent only two days in Norway, neither speaks Norwegian nor knows much about Norse traditions and customs. Nevertheless, he applied for a job as a server at Restaurant Akershus, a Norwegian-themed eatery at Disney’s Epcot Center.

Disney requires its servers to speak the language of the country that they represent while serving customers, and to be very familiar with customs and life in the country they represent.

Disney rejected Gupta as a server, and he sued, alleging national origin and race discrimination.

But the 11th Circuit Court of Appeals refused to entertain his lawsuit, reasoning that he simply didn’t have the background to meet the legitimate job requirements.

It helped that Disney had hired servers who didn’t have Nordic blonde looks, but spoke Norwegian and understood the country’s culture well enough to provide an authentic experience. Disney, in fact, had hired another server of Asian descent for the restaurant. It also had hired applicants from the Middle East and African-Americans for its Canada Pavilion. (Gupta v. Walt Disney World Company, No. 07-11409, 11th Cir., 2007)

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