Old Sichuan Restaurant Case: BFOQ, or not?

perceptions or preferences, and prior court decisions have ruled out such perceptions or preferences as the basis for a BFOQ. Therefore, the essential functions of the job of chef at the Old Sichuan Restaurant do not require that the chef be from China or The Old Sichuan Restaurant in Buffalo, New York, has built its reputation and popularity around its traditional Sichuan Chinese cuisine. The original restaurant was opened by Chinese immigrant Wang Chao in 1983. Two additional locations were subsequently opened in 1991 and 2004. The restaurant now has a total of 54 employees. All locations have always had Chinese chefs. The restaurant's advertising has consistently played up the authenticity of both its menu and the ambience and dining experience it provides its customers.

Due to the retirement of the chef from the original restaurant, Old Sichuan began to advertise on its own website and on job search sites for a replacement chef. The requirements listed for this position included expertise in Sichuan cuisine and experience in preparing a wide range of Sichuan menu items, along with ability to speak and read Chinese. The requirements included "being from China or of Chinese origin."

Upon seeing the ad, Paul Wrobel thought that he was fully qualified, as he had training and expertise in preparing Sichuan cuisine and had worked for three years as a server and then for two years as a sous-chef at a well-known Chinese restaurant in Cleveland, Ohio. He had a basic facility with spoken and written Chinese. However, the listed requirement of being from China or of Chinese origin seemed questionable or possibly even illegal to Paul.

Researching the legality of race or national origin as a job qualification, Paul quickly realized that this was an area of employment law that was somewhat unsettled. In some cases, national origin or even race could be a permissible requirement, if it was truly a "bona fide occupational qualification" (BFOQ) for performing the "essential functions" of the job.

In the case of Old Sichuan, Paul knew that the restaurant made its reputation on authenticity, which would certainly be enhanced by having a visibly Chinese chef who grew up with the cuisine and who spoke Chinese fluently. However, was being from China or of Chinese origin necessary to perform the essential functions of the job? What were these "essential functions?" Was the restaurant engaging in discrimination on the basis of race or national origin, or could it defend its ad as legal on the basis of a BFOQ?

Your task

Your task is to analyze this case and argue both the pro and con sides, as summarized below. Make sure that you provide as strong a case as you can for each side, expanding on the points in the summary arguments. In doing so, make sure that you use the course readings and documents on BFOQs, as well as prior court decisions on BFOQs. After you have made the case for both sides, explain which side you think is stronger, and why. Which side would a court decision most likely support, and why?

1. Yes, national origin (being from China or of Chinese origin) is a BFOQ for the job of chef at the Old Sichuan Restaurant. The restaurant has built its reputation on the authenticity of its dishes and its dining experience. Customers have come to expect this authenticity, which is crucially represented by the visible presence of a Chinese chef. Even if a non-Chinese chef could prepare the dishes properly, his or her presence would clearly undermine the authenticity of the dining experience. Therefore, being from China or of Chinese origin is required to fulfill an essential function of the job.

2. No, national origin (being from China or of Chinese origin) is not a BFOQ for the job of chef at the Old Sichuan Restaurant. The essential functions of the job of chef at the Old Sichuan Restaurant are to have knowledge of Sichuan cuisine, be able to come up with a wide range of Sichuan menu items, and be able to speak and read Chinese. A chef does not have to be Chinese to be able to fulfill these functions. The ability to provide an authentic Sichuan dining experience is too vaguely defined to count as an essential function. In addition, "authenticity" depends on customers' of Chinese origin.