Twenty-five year old Eli Pierre has only one full arm, but he says he’s never been told there was something he couldn’t do.
That is, until last month, when a San Diego, California Starbucks interviewed and then refused to hire him. Mr. Pierre is now suing the Seattle-based company in California state court alleging discrimination and wrongful failure to hire “despite his capable work history,” in violation of California’s Fair Employment and Housing Act (FEHA). He’s also claiming failure to prevent discrimination, to make reasonable accommodations, to engage in the interactive process in violation of FEHA, wrongful failure to hire in violation of public policy, and intentional infliction of emotional distress.
According to ABC News, Mr. Pierre, a former bartender, claims he wasn’t hired because he is missing half of his left arm, and that throughout his interview, he was told that he wouldn’t be able to work there – besides being teased about a previous job he’s held at Victoria’s Secret. (“Maybe he can help you find the right bra size”, the interviewer allegedly said to another Starbucks employee.)
A spokesperson for the coffeehouse chain contends that Mr. Pierre’s version of the interview is “vastly different” from what actually took place, and that he wasn’t hired because of his qualifications and answers to interview questions.
While ABC and the rest of the media provided plenty of information about Mr. Pierre’s lawsuit, it didn’t size up the strength of his claims. LASIS will.
ABC had what little law it did report, wrong. It stated that Mr. Pierre sued for discrimination in violation of the Federal Employment and Housing Act. Such a law doesn’t exist.
FEHA prohibits an employer from either refusing to hire or for firing someone based on a physical disability, defined in part as any anatomical loss that affects a body system and limits a major life activity. Not having an arm certainly qualifies as a physical disability, but it hasn’t stopped Mr. Pierre from working, a major life activity under the Act. A former boss even told ABC that Mr. Pierre “can carry more than somebody…with two arms.”
Even so, Mr. Pierre is clearly disabled and his discrimination argument seems pretty solid. Especially if what he said of the interview is true. In a 2002 California Court of Appeals case, a man with a prosthetic leg sued the Los Angeles Police Department when he wasn’t hired as a police officer. The court found no discrimination because the man didn’t meet the physical requirements of the job. And this makes sense. It would be ineffective for a police officer with a prosthetic leg to chase after a fleeing suspect by scaling fences and jumping over obstacles.
It’s harder for Starbucks to argue that it requires both arms to pour coffee. On the other hand, doing some field research I watched the baristas make my drink at a local Starbucks recently, and using two hands surely helped them work as quickly as they did.
But the crux of Mr. Pierre’s argument isn’t that Starbucks should have hired him on the spot, it’s that it didn’t engage in the “interactive process” of identifying reasonable accommodations that would allow him to work there.
In 2008, the California Court of Appeals said an employer is liable if the workplace could be modified to allow an employee to perform the essential functions of the job. For Starbucks, it wouldn’t take much. The interviewer had told Mr. Pierre it would never work out for him at Starbucks because he wouldn’t be able to reach certain syrups while making the drinks. Well, one place for Starbucks to start in trying to accommodate Mr. Pierre would be to move the syrups within reach.
Mr. Pierre also claims that when Starbucks didn’t give him the job or explore any potential accommodations, it violated public policy. The California Court of Appeals recognizes this as a separate claim, but as violations of FEHA are automatically violations of public policy, Mr. Pierre will likely succeed on this public policy argument, as his discrimination claims are rather robust.
Aside from the alleged FEHA violations, Mr. Pierre is suing for intentional infliction of emotional distress. To win on an emotional distress claim, Mr. Pierre would have to prove that Starbucks’ conduct was “outrageous” and exceeded “all bounds…tolerated by a decent society.” In 2006, the California Court of Appeals ruled that unlawful discrimination doesn’t necessarily lead to a successful emotional distress claim. That’s not to say a Starbucks interviewer should have treated Mr. Pierre as he did, but what happened during the interview doesn’t amount to the extreme behavior the court is probably looking for.
As a frequent Starbucks customer, I was disappointed when I heard of these accusations, especially as this isn’t the first time the company has been accused of discrimination. Last year, a Starbucks employee with dwarfism was fired after asking for a stool or stepladder because, the company said, “she could be a danger to customers and workers.” The Equal Employment Opportunity Commission sued the company for discrimination and Starbucks shelled out $75,000 to settle. I’ll keep going to Starbucks for now because I’m hooked. But if I hear of more offensive behavior like this, I might just try Dunkin’ Donuts instead.
This blog originally appeared in Legal as She is Spoke, a project of the Law and Journalism track at New York Law School, on March 5, 2012. Reprinted with permission.
About the Author: Leah Braukman (2L) is first and foremost a proud graduate of the University of Florida — Go Gators! While a “Gator” at heart, she is thrilled to be in New York City and studying law at New York Law School, and is equally excited about contributing to this blog. Leah is a member of Law Review, the Institute for Information Law and Policy, the Media Entertainment Fashion Law Association, and the Program in Law and Journalism.