Restaurant fined $4,000 for refusing to hire a waiter because he wasn’t Asian

According to the department, the national origin clause means employers cannot treat potential workers differently because of their place of birth, their ancestry, native language, accent, or if, for any other reason, “they are perceived as looking or sounding ‘foreign.’” (Because the restaurant has between four and 14 employees, it was charged with violating an anti-discrimination provision in the Immigration and Nationality Act, and not the better-known Civil Rights Act of 1964, which applies to businesses with over 15 employees.)

Despite that law, and the potential illegality of ignoring it, the notion that the people serving your food should resemble the people who’ve historically made that food seems to endure, particularly in New York. Two years ago, for example, the city fined a kosher Indian restaurant $5,000 for seeking an “experienced Indian waiter or waitress” on Craigslist. Then there’s when keeping it real goes horribly wrong: Last year, one of New York’s most prominent sushi chefs, who is white, was fired for using a fake Japanese accent while serving customers.

If that kosher Indian restaurant, or even Ichiba, had tried to argue that they needed to hire a waiter of a specific national origin under a clause related to “bona fide occupational qualifications,” they might’ve stood a chance. Employers who demonstrate that the job truly requires an applicant to be of a certain gender, race, or national origin can hire more selectively. Hooter’s, for example, has famously argued that it cannot hire male servers at a restaurant whose specific allure is the, um, hooters.

But arguments of that kind haven’t held up in matters related to race, ethnicity, and nationality. As a government lawyer explained to Freakonomics, her office successfully sued a Mexican restaurant in Houston that had fired black and Vietnamese waitstaff because they couldn’t speak Spanish. The restaurant’s “diverse” clientele didn’t only speak Spanish, she said. Therefore, language skills weren’t a “business necessity.” Nor, presumably, were more subtle attributes of service work—like an appearance of authenticity.

Of course, there’s plenty of gray area. Many of us are used to eating in restaurants where employees seem to embody or visually represent the food that’s on the plate. Does that mean illegal discrimination actually occurred? Maybe job applicants are self-selecting. Maybe no one wants to take it upon themselves to complain, or knows who to complain to. And maybe the issue is just one of those icky things no one wants to talk about. Restaurants provide a kind of theatre, after all, and even if it’s unequal under the eyes of the law, there’s no fun in shattering the illusion.