Since launching an initiative last week that encourages its employees to start conversations with customers about race in America, Starbucks has been roundly criticized for its attempt at tackling a societal issue.
But skeptical news articles and mocking posts on social media shouldn’t be the only concerns for companies that launch projects like the coffee chain’s “Race Together” campaign, several local employment attorneys said — businesses could also face legal trouble if employees experience harassment or discrimination while following company guidelines.
“Employers are liable for ensuring that the workplace in which employees have to work every day is not infected with remarks or conduct that could be discriminatory,” said Elizabeth Torphy-Donzella, an employment attorney with Shawe Rosenthal LLP. “They’re inviting customers to have a dialogue with employees about race — about topics that are by definition controversial, deeply held and make people angry on both sides. That is not typically going to end well.”
The Starbucks initiative originally called for baristas to write “Race Together” on the sides of coffee cups in an effort to engage customers in discussions about race. The company announced Sunday that it would end that practice, although the campaign will continue with other events and projects, including open forums for employees and newspaper inserts produced with USA Today.
“It puts their employees in a really uncomfortable spot, in this forced conversation,” said Neil Duke, an employment lawyer with Ober | Kaler. “They’re throwing their employees potentially to the proverbial wolves, to have these untrained, unsupervised and totally extemporaneous conversations.”
Although Starbucks said baristas who wrote on customers’ cups were participating in “Race Together” voluntarily, the campaign could still lead to allegations of harassment if employees feel confronted by customers, attorneys said.
“Ultimately, it can lead to employees feeling that they’ve been subjected to a hostile work environment if it’s a conversation they didn’t wish to be a part of and can’t get out of,” said Laura Rubenstein, an employment attorney with Offit Kurman.
Several attorneys, including Rubenstein, said they would advise Starbucks or other companies that wish to start a dialogue around sensitive issues to begin internally rather than asking employees to broach complicated topics with customers.
“Employers are really encouraged to give regular workplace trainings on workplace harassment and discrimination, so I think that tends to be a safer environment to discuss things,” Rubenstein said.
But even a discussion between baristas and management could turn hostile if lower-level employees can’t express their viewpoints without experiencing discrimination, Torphy-Donzella said.
“If you’ve got high-level officials within the company saying these things, you may not feel comfortable saying, ‘Stop.’ You have to be careful what you do as a person of power,” she said.
Idea vs. implementation
Despite the drawbacks of Starbucks’ program, Duke said the company should be commended for trying to bring an important issue into the spotlight.
However, he added, employers have to be mindful that some of their customers might prefer to provoke rather than to engage in an open-minded discussion.
“This is unfortunately a conversation that people come to not in the same place, and they don’t leave in the same place,” he said.
Going into Starbucks for a cup of coffee or a slice of pound cake only to be asked to share thoughts on police killings of unarmed black men, for example, is unlikely to yield a productive discussion, he said.
“At that point, I either decide not to get my pound cake or I become engaged in a debate with my barista over race relations in America,” Duke said.
“Plans are always two-fold: one is the idea itself and the other is the actual implementation. Kudos to Starbucks for having the courage to conceive this idea, but they are going to lose points as far as execution.”