When the Customer Is King: Employment Discrimination as Customer Service

Abstract

Employers profit from giving customers opportunities to discriminate against service workers. Employment discrimination law should not, but in many ways does, allow them to get away with it. Employers are driven by self-interest to please customers, whose satisfaction is critical to business success and survival. Pleasing customers often involves cultivating and catering to their discriminatory expectations with respect to customer service — including facilitating customers’ direct discrimination against workers. Current doctrine allows employers to escape responsibility for customers’ discrimination against workers because it takes an overly narrow view of the employment relationship, focusing on the formal lines of authority that run between two parties, the employer and employee. But in fact, the structure of service work relationships is triangular: Customers play a powerful role in determining the terms, conditions, and privileges of employment because of the characteristics of service work and the importance of customer satisfaction to the employer’s bottom line. By separating the employer from discrimination that originates outside the employer-employee dyad and overlooking the realities of the service work environment, the prevailing legal model accepts employers’ rhetoric casting practices that facilitate discrimination against workers as simply “good customer service.”This article argues that the law should not allow discrimination in employment to masquerade as customer service. It should hold employers accountable for the ways in which they facilitate and benefit from customers’ discrimination against service workers. To support this argument, the article draws on the sociology of service work to explain some familiar, problematic employment practices by illuminating how the triangular structure of relationships combines with the culture of “customer sovereignty” to promote discrimination in service work. The article then introduces another common practice that may be less well known to readers — the use of customer feedback to monitor and evaluate workers or “management by customers” — through which employers have drawn the customer directly into the management of employees, leaving workers vulnerable to customer discrimination that is processed through management decisions but may be hard to reach under current doctrine. The article argues that employment discrimination law should and can hold employers accountable when they base employment decisions on discriminatory customer feedback. More broadly, it argues that employment discrimination law needs a model of employer liability to reach discrimination that originates beyond the employer-employee dyad, in recognition of both the triangular structure of, and the power of the customer in, interactive service work.