Following an incident in Philadelphia involving two African American men arrested after an employee called the police because they didn’t order anything, Starbucks closed over 8,000 stores for three hours for racial bias training. The charges were later dropped.
Firms are not required to conduct a racial or implicit bias training. It’s a company-by-company decision to provide the training, as the federal government doesn’t mandate anti-discrimination training of any employer. Is it unusual for a business as large as Starbucks to shut down to conduct a non-mandatory training? Michelle Swan, partner at Radix Law, says yes.
“I haven’t seen this particular training module, but my understanding is that for the past month they’ve been working on it with the NAACP and other groups,” Swann says. “I’m curious to see what the training module is, given that there is so much skepticism about whether this training works.”
The social science surrounding implicit bias is mixed, Swann says. It’s a fifty-fifty chance a judge will allow an implicit bias expert to testify, because the science is unreliable.
While bias training isn’t a common tool, there are methods that are popular among employers to prevent bias. Many employers will remove the name of an applicant before reviewing their application because it’s easy to assume someone’s gender and ethnicity from a name. Swann says those methods that are already in place have been shown to work effectively.
When a customer or employee claims racial bias against a company, then what happens? Swann says the most important step is to open an investigation. There’s an obligation from the employer to keep their employees and customers safe, and there are times when those two sides come into conflict.
“You need to find out why [they’re making this claim],” Swann says. “What is the basis of this person’s complaint? Identify any witnesses and get to the bottom of what happened so you have protection against yourself.”
Starbucks is also going over its policy that states their restrooms are permitted only to paying customers. Swann says there isn’t a law about such a rule in Arizona, rather it’s a policy adopted by a business.
“I think what Starbucks is doing is certainly on the right path,” Swann says. “I don’t see any harm that could come out of this. I understand they’re paying people who won’t be working, but I don’t see how there’s any sort of damage to the employer. I do think it needs to be realistic, because they’re going to have quite a turnover.”
TED SIMONS: STARBUCKS CLOSED ITS 8,000-PLUS COMPANY-OWNED STORES FOR THREE HOURS TODAY SO THE EMPLOYEES COULD TAKE PART IN RACIAL BIAS TRAINING. HERE NOW TO TALK ABOUT RACIAL BUYS AND TRAINING IS MICHELLE SWAN, A PARTNER AT RADEKLAW. SO WHAT HAPPENED HERE.
MICHELLE SWAN: SO TWO GENTLEMEN WENT TO THE STARBUCKS AND WERE WAITING FOR THEIR FRIEND OR BUSINESS ASSOCIATE TO COME IN, AND FROM THE ACCOUNTS I HAVE SEEN, THE TWO CUSTOMERS WHO WERE WAITING, WEREN'T BEING DISRUPTIVE. IT SEEMS TO HAVE SNOWBALLED VERY QUICKLY.
TED SIMONS: AT WHAT POINT DOES STARBUCKS START TALKING TO ANYONE WHO HASN'T ORDERED ANYTHING. IT SEEMS LIKE A LOT OF FOLKS ARE GOING TO SIT THERE READING OR NOT ORDERING ANYTHING.
MICHELLE SWAN: YEAH, IT'S A COFFEE SHOP.
TED SIMONS: THAT'S WHAT PEOPLE DO.
MICHELLE SWAN: RIGHT.
TED SIMONS: SO THERE WAS NO TRESPASSING BUT THEY DIDN'T ORDER, AND THEY WERE ARRESTED.
MICHELLE SWAN: CORRECT.
TED SIMONS: AND THE CHARGES WERE DROPPED. ARE FIRMS REQUIRED TO DO RACIAL BIAS TRAINING?
MICHELLE SWAN: NO, SO ACTUALLY, WE'RE TALKING ABOUT IMPLICIT BIAS TRAINING. THERE'S NO REQUIREMENT TO THAT. THERE'S ALSO NO REQUIREMENT FOR EXPLICIT BIAS TRAINING. THE FEDERAL GOVERNMENT DOESN'T MANDATE ANY KIND OF DISCRIMINATION-BASED TRAINING OF ANY EMPLOYER.
TED SIMONS: SO IS THIS UNUSUAL FOR A COMPANY-WIDE SHUTDOWN FOR THIS KIND OF THING.
MICHELLE SWAN: YES, I HAVEN'T HEARD OF ANYTHING LIKE THIS – BECAUSE YOU HAVE GOT -- YOU KNOW, FIRST OF ALL IT'S NOT TRAINING THAT IS EVEN REQUIRED, AND YOU HAVE BASICALLY THE ENTIRE SYSTEM SHUTTING DOWN FOR A COUPLE OF HOURS, SO I THINK THIS IS VERY UNUSUAL.
TED SIMONS: HOW DO YOU TRAIN SOMEONE TO BE LESS BIASED?
MICHELLE SWAN: WELL, THE SOCIAL SCIENCE ON THIS IS MIXED. THERE HAVE BEEN A LOT OF COURT CASES WHERE PEOPLE HAVE SOUGHT TO INTRODUCE IMPLICIT BIAS
EXPERTS, AND, YOU KNOW, 50% OF THE TIME, THE COURTS ACTUALLY SAY, THE SCIENCE IS SO UNRELIABLE THAT WE'RE NOT GOING TO HAVE THEM COME IN AND
TESTIFY, BECAUSE IT WILL JUST CAUSE PROBLEMS WITH THE JURY. SO I HAVEN'T SEEN THIS PARTICULAR TRAINING MODULE, BUT MY UNDERSTANDING IS IT WAS -- IT
HAS BEEN -- YOU KNOW, FOR THE PAST MONTH, THEY HAVE BEEN WORKING ON IT -- YOU KNOW, WITH THE NAACP AND SOME OTHER GROUPS. SO I'M CURIOUS TO SEE WHAT THE TRAINING MODULE IS, GIVEN THAT THERE IS SO MUCH SCEPTICISM
ABOUT WHETHER THIS TRAINING WORKS -- HOW DO YOU TRAIN THIS OUT OF PEOPLE?
TED SIMONS: I WOULD THINK IF NOTHING ELSE YOU WOULD HAVE TO KNOW THE HISTORY OF DISCRIMINATION, AND UNDERSTAND THE BACKGROUND THERE TO KIND OF UNDERSTAND THE PRESENT.
MICHELLE SWAN: RIGHT. CORRECT. CORRECT. BUT THERE -- THERE ARE – THERE ARE METHODS THAT PEOPLE ARE USING -- THAT EMPLOYERS ARE USING RIGHT NOW. FOR EXAMPLE, A LOT OF EMPLOYERS WHEN THEY GET APPLICATIONS IN, THEY REMOVE THE NAME OF THE APPLICANT, BECAUSE THEY DON'T WANT SOMEBODY REVIEWING THAT APPLICATION TO SAY, OH, BASED ON THIS NAME, MICHELLE SWAN, CLEARLY A WOMAN --
TED SIMONS: RIGHT.
MICHELLE SWAN: OR, YOU KNOW, NAMES THAT SOUND ETHNICALLY DIFFERENT. SO THERE ARE THINGS THAT ARE ALREADY IN PLACE, AND THOSE HAVE SHOWN TO -- TO REALLY WORK IN A LOT OF CASES.
TED SIMONS: WHAT ABOUT, THOUGH, LET'S SAY YOU ARE AN EMPLOYER, AND YOU HAVE GOT A COMPANY, AND A CUSTOMER CLAIMS RACIAL BIAS AGAINST YOU AND YOUR COMPANY. WHAT ARE YOU REQUIRED TO DO?
MICHELLE SWAN: WELL, WHAT YOU NEED TO DO IS IMMEDIATELY SORT OF OPEN AN INVESTIGATION. AND I DON'T MEAN YOU HAVE TO CALL MICHELLE SWAN. YOU NEED TO FIND OUT WHY? YOU KNOW, WHAT IS THE BASIS OF THAT PERSON'S COMPLAINT. IDENTIFY ANY WITNESSES, AND REALLY TRY TO GET TO THE BOTTOM
OF WHAT HAPPENED, SO THAT YOU HAVE PROTECTION AGAINST YOURSELF, BECAUSE IF THAT INDIVIDUAL LATER GOES TO THE ATTORNEY GENERAL'S OFFICE, FOR EXAMPLE, AND FILES A COMPLAINT, YOU WANT TO BE ABLE TO SAY, I DIDN'T DISREGARD THIS, I TOOK IT SERIOUSLY, AND IMMEDIATELY STARTED INVESTIGATING, AND HERE IS WHAT I FOUND.
TED SIMONS: AND WHAT ABOUT IF AN EMPLOYEE CLAIMS RACIAL BIAS.
MICHELLE SWAN: IT'S EXACTLY THE SAME. EMPLOYERS HAVE AN OBLIGATION TO PROTECT THEIR EMPLOYEES AND THEIR CUSTOMERS. SOMETIMES THOSE THINGS CAN COME INTO CONFLICT. MEANING IF YOU HAVE AN EMPLOYEE WHO IS BEING HARASSED BY A CUSTOMER, THE OBLIGATION IS GOING TO GO TO PROTECT THAT EMPLOYEE.
TED SIMONS: WHAT ABOUT AN EMPLOYEE BEING HARASSED BY A FELLOW EMPLOYEE?
MICHELLE SWAN: THERE'S ALWAYS GOING TO BE THAT OBLIGATION.
TED SIMONS: SO THE OBLIGATION IS THERE IN ALL OF THOSE SCENARIOS.
MICHELLE SWAN: YES. YEAH.
TED SIMONS: WHAT IS THE LAW FOR USING A RESTROOM IN A RESTAURANT WITHOUT ORDERING ANYTHING?
MICHELLE SWAN: WELL IN ARIZONA THERE ISN'T ANY LAW ABOUT THAT. AND BY THAT I MEAN, YOU KNOW, JURISDICTION BY JURISDICTION IS GOING TO DETERMINE WHETHER YOU HAVE TO HAVE RESTROOM FACILITIES FOR EXAMPLE. RIGHT NOW THERE'S NO RULE IN ARIZONA THAT SAYS YOU HAVE TO BE A PAYING CUSTOMER. SO IT'S REALLY A POLICY THAT -- THAT -- THE PLACE OF PUBLIC ACCOMMODATION ADOPTS. SO THEY MIGHT SAY, YOU HAVE TO BUY SOMETHING UNLESS IT'S AN EMERGENCY, BUT REALLY, IT'S GOING TO BE UP TO THE BUSINESS TO DECIDE WHETHER THEY ARE GOING TO ALLOW OPEN USE OF THE FACILITY.
TED SIMONS: MOST DISTRICTS AND AREAS, SOMEWHAT SIMILAR TO THAT, DO YOU THINK?
MICHELLE SWAN: YES, I DO THINK SO. I KNOW THERE ARE THREE STATES THAT HAVE SORT OF MANDATED IT, YOU KNOW, ON A STATE-WIDE BASIS, BUT GENERALLY, THIS IS GOING TO FALL INTO THE AREA OF JUST PURELY LOCAL REGULATIONS.
TED SIMONS: AND STARBUCKS -- EVEN AT STARBUCKS, EVEN AFTER ALL OF THIS TRAINING, YOU STILL CAN'T DO INTO THE BATHROOM AND DO DRUGS OR DRINK OR SLEEP – THEY STILL HAVE RULES.
MICHELLE SWAN: CORRECT. STARBUCKS HAS AN OBLIGATION TO PROTECT ITS CUSTOMERS. SO THEY NEED TO PROTECT THEIR CUSTOMERS FROM THAT KIND OF BEHAVIOR. SO THEY ARE STILL GOING TO BE ABLE TO, EVEN IF YOU HAD A RULE THAT SAYS THAT YOU HAVE TO OPEN THE BATHROOMS UP TO EVERYBODY, YOU STILL HAVE THE SAME RULES. IF SOMEONE IS DISRUPTIVE, YOU CAN REMOVE THEM, OR SOMEBODY IS CAUSING A HAZARD, YOU CAN REMOVE THEM.
TED SIMONS: DO YOU BELIEVE THAT STARBUCKS IS ON THE RIGHT PATH TO CHANGE WITH WHAT THEY ARE DOING TODAY?
MICHELLE SWAN: I THINK WHAT STARBUCKS IS DOING IS CERTAINLY ON THE RIGHT PATH. SO I DON'T SEE ANY HARM THAT COULD COME OUT OF THIS. I UNDERSTAND THEY ARE PAYING PEOPLE WHO AREN'T GOING TO BE WORKING, BUT I DON'T SEE THAT THERE'S ANY SORT OF DAMAGE TO THE EMPLOYER. I DO THINK IT NEEDS TO BE VERY REALISTIC, BECAUSE THEY ARE GOING TO HAVE QUITE A TURNOVER. SO ARE THEY DOING THIS EVERY YEAR NOW? ARE THEY GOING TO HAVE ONLINE CLASSES THAT WHEN YOU FIRST SIGN UP, YOU HAVE TO TAKE THIS MODULE? I THINK THEY NEED TO THINK THROUGH THAT, BUT I CERTAINLY DONE SEE ANY HARM IN WHAT THEY
TED SIMONS: ALRIGHT MICHELLE SWAN RADEK LAW. GOOD TO HAVE YOU HERE. THANKS FOR JOINING US.
MICHELLE SWAN: THANK YOU.
TED SIMONS: AND COMING UP NEXT, HEAR FROM THE NEW BOSS AT SCOTTSDALE ARTS.
Michelle Swann: Partner, Radix Law