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Why Panera should settle lawsuit charging racism

COMMENTARY Scott Donatelli, a former Panera Bread manager is suing his former employer, saying he was terminated for violating a race-based directive from the franchise owner. The Washington Post reports

Earlier this year, Donatelli says, the district manager told him, "It's what [franchise owner Sam Covelli] wants and what our customers want. They would rather see pretty young girls" at the cash register. The district manager also "told Donatelli he did not want African Americans working where the public could see them because: 'it's what the customers want," according to the eight-page complaint filed late Tuesday in U.S. District Court in Pittsburgh.
Donatelli had also just returned from a medical leave and after being informed that he was being replaced as general manager, he decided he wasn't fully healed and needed another month off. So, Panera fired him. The franchise made the following statement:
"Our company treats all employees the same, regardless of their race, sex, or national origin," the statement said. "Mr. Donatelli's termination was based strictly on his inability to return to work within the time frame set forth by the law. We look forward to showing his allegations as baseless as this case moves forward."
The franchise owner is in for a world of hurt when this case goes to court (if they don't settle first).  Donatelli claims the district manager told him specifically to remove the black man from the register (regardless of his skill and abilities).  In addition, you can't just terminate someone for taking more than 12 weeks medical leave.

I realize that last statement is somewhat of a shocker, but recently the Americans With Disabilities Act has been expanded so that it can now be considered a "reasonable accommodation" to allow employees with medical problems to take more than the 12 weeks guaranteed by FMLA.  Which means, that even if they didn't have a racist policy, they still may have illegally terminated Donatelli.

Can an employer set rules that only allow employees of a specific gender/race/age to do a job if the customers really prefer it?  On the surface, that may make sense.  After all, you don't see overweight 75-year-old men modeling the latest in women's fashions.

Things like this fall under a Bona Fide Occupational Qualification

(BFOQ in HR Speak) which means that when you have a real reason that you need someone of a specific race, gender or religion, you can exclude others that don't fit this definition.  This is usually extremely limited in scope. (For instance, you can insist that your minister be a member of your actual religion or that Hollywood can do whatever it darn well pleases for "reality" reasons.  I think the last thing is incredibly stupid.  How many real housewives do you know that look like those desperate ones on TV?)

Additionally, would it even be possible to prove that customers prefer a pretty girl on the register?  I imagine that a place like Panera makes the sale before a customer walks in the door and as long as there isn't a grooming problem, you could have a space alien behind the counter and no one would care.  What they care about is getting their food correctly and quickly.

Race, gender, and age will never qualify as a BFOQ when it comes to a cashier job at a fast food restaurant.  If the allegations are true, they are evidence of an illegal and immoral and down right stupid policy.  If the allegations are not true, the firing of someone who probably should have received an additional month's leave under ADA will also result in a big payout. 

Lesson for the day?  Don't be a racist and consult your lawyers before terminating anyone with medical problems.

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