Saturday, April 21, 2018

The war on standards reaches coffee shops


The following article appeared in Powerline on April 20th

By Paul Mirengoff

Let’s start with the disclosure thing. As an attorney, I had the good fortune to represent Starbucks in various matters, including a case, a matter of public record, where race discrimination was alleged (but not found). Nothing in this post is based on any information obtained as an attorney representing the company more than six years ago.


What to make of the arrest of two black men at a Starbucks in Philadelphia and the controversy that followed? First, the Starbucks manager appears to have done nothing wrong. According to a company spokesperson, the company policy in her store was that “partners” must ask non-purchasers to leave and call the police if they refuse. I’ve seen no indication that this was not, in fact, store policy and practice. Absent any such evidence, the manager should not have faced any disciplinary action for her conduct.

Second, the policy makes perfect sense. A Starbucks store is not a public space. If you aren’t going to purchase anything, you have no business being in the store for an extended period of time. And if a non-purchaser refuses to comply with a request to leave, the best way to enforce the policy is to call the police. What’s the alternative, bouncers?

It’s a sad commentary that anyone would even contemplate using Starbucks as a free meeting-ground. When I meet people at Starbucks, I always purchase something even though I don’t drink coffee. It would never occur to me not to. Only a strong sense of entitlement, not to mention bad manners, would lead anyone to think he can occupy the store for an extended period of time without paying.

Third, recent statements of contrition by Starbucks and the Philadelphia police are problematic. The same company spokesperson who stated that the store manager followed store policy also said that “in this situation, the police never should have been called.”

What does she mean by “in this situation?” Perhaps she means that the two men were not “misbehaving,” a claim made by their attorney (inevitably, these entitled-feeling young men now have a lawyer). But the refusal to purchase anything was misbehavior — it violated reasonable store policy as well as propriety. Calling the police in these circumstances is the best way to handle a situation in which the only alternatives seem to be abandoning policy or engaging in self-help.

Would Starbucks find anything wrong with a store manager calling the police on two white non-purchasers who refused to leave a store? I doubt it.

Thus, when the company spokesperson says the police should not have been called “in this situation,” she probably means a situation involving black customers. The company’s decision in the aftermath of the incident to hold “unconscious bias” training for employees at 8,000 stores supports my inference.

The Philadelphia police chief made a similar comment. Initially, he said his officers “did absolutely nothing wrong.” But he later backed away from this statement, stating “I should have said the officers acted within the scope of the law, and not that they didn’t do anything wrong.” He added that if he has done anything to worsen race relations, “shame on me.”

Taken as a whole, this series of comments suggests that the conduct of the police was wrong because of its impact on race relations. Had two white men been taken into custody on this set of facts, or if there had been less pushback against the police over taking these two black men into custody, I doubt the police chief would have amended his initial statement that his officers did nothing wrong.

Starbucks says it’s working with the two non-purchasers to implement new policies on customer ejections and racial profiling. I’ve seen no evidence, though, that the ejection of the two blacks was an instance of racial profiling rather than a case of simple adherence to store rules. Unless the manager has previously permitted whites to gather in the store without buying anything, any inference that she engaged in racial profiling is baseless and offensive.

As for “customer ejection” policy (are non-purchasers really “customers”?), a company should always be willing to review controversial policies. But if Starbucks softens its prohibition against non-purchasers remaining in the store, or its enforcement of the prohibition, it will look very much like a case of abandoning sound business practice in response to an apparently baseless claim of race discrimination.

In other words, a lowering of standards for race-based reasons.

Starbucks may have little choice. Last night at a restaurant, I heard a black woman sitting next to me say that, although Starbucks is her favorite place to purchase coffee, she won’t go there from now on. She opined that the sort of thing that happened in Philadelphia must have happened “thousands of times” (though obviously not when she was present, or she would already have stopped going).

Starbucks can’t afford this image, baseless though it probably is. Thus, it was well worth it for the company to shut down stores for a day and have its workforce undergo “unconscious bias training.” (I take no position on whether or to what degree this decision was motivated by economic concerns, as opposed to a desire to do “the right thing,” as the company sees it).

Starbucks must operate in the real world. In today’s world, adhering to good practice in the face of unfounded charges of racism often carries more costs than a company should be expected to bear.

However, the cumulative effect of abandoning good practice under these circumstances carries more cost than I think society should be expected to bear.

I view this as a form of reparations. A more straightforward form, though I don’t favor it, might well be preferable.

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