Legal Analysis

Before Boycotting Starbucks, You May Want to Read This

Look, if you’re going to #BoycottStarbucks, do so for a good reason—like taking a stand against $6 coffee that always tastes burned, or combatting the pretentiousness of speaking Italian before breakfast. But boycotting Starbucks because one employee at one location did a bad thing is just stupid.

Let’s sort out what we know, what we don’t, and where the real wrongdoing lies.

The cops

There are times when police exercise bad judgment. This is not one of those times. Police are not finders of fact, they are enforcers of law. If a store manager calls the police to remove trespassers, the police have a duty to remove trespassers, not to start a civil rights inquiry in the middle of a coffee shop.

In order to arrest someone for trespass, the police would have needed “probable cause.” That does not mean that the police need to be certain that a crime has been committed, but rather, that there exist reasonable grounds for believing a trespass has occurred. The manager complained to police about trespassers, the police arrived, the alleged trespassers were on the premises and refused to leave. That’s enough to constitute probable cause. End of story. Let’s leave the cops out of this one.

The two men

Assuming that the story, as reported, is true, these guys did nothing wrong. They entered a Starbucks, they sat down, and they waited for their friend. Starbucks is known to be a chain in which visitors are welcome to enter, hook up to the free Wi-fi, and hang around as long as they like, or until the urge to consume a 5,000-calorie iced coffee becomes irresistible. I’ve never seen a sign posted indicating that seating is for “paying customers only,” nor have I witnessed any barista checking the uncomfortable seats to see who might overstaying their welcome. Starbucks’ brand hinges on the concept of coffee shop-as-town-square, and it would have been a reasonable assumption on the part of these two men that they had permission to occupy the premises, even without buying anything. Throw in the facts they’ve offered up—that they were waiting to meet a friend – then it’s reasonable to assume that they may have intended to become paying customers later, had they not been arrested. That friend, by the way, was Andrew Yaffe, a real estate developer, who told The Washington Post that he had been planning to meet with the two men to discuss investment opportunities.

The paying customer/non-paying guest distinction can be legally relevant in situations involving premises liability; generally (and depending on state law) a paying customer is owed a higher duty of care for things like negligently-maintained premises than would be a simple visitor. But that’s not the issue here. The two men didn’t slip and fall or choke on a frappuccino—they were thrown out.

Unless there are some pretty dramatic facts that haven’t yet surfaced, I see no wrongdoing on the part of the two men. They appear to have acted normally and lawfully. Melissa DePino, who was present during the event and shared what became a viral video of the arrest, told Philadelphia magazine that the men “never raised their voices,” and, “never did anything remotely aggressive.” None of that means that they were discriminated against based on race, but it does tend to prove that they hadn’t been criminally trespassing.

The manager

The manager of a public establishment, such as Starbucks, would have the legal right to ask any person to leave. While the public may have a license to enter and remain on the Starbucks property, that license can be revoked at any time, and for almost any reason. That’s just the way property law works, and in this regard, it’s no different for Starbucks than it is for you in your own home. Where things do become different is in the reasons for revoking a license. In places of public accommodation (like coffee shops, restaurants, stores, etc.) it is illegal to throw someone out based on someone’s race, color, sex, ancestry, national origin, religion, or disability.

If the manager threw these guys out because of their skin color, she has violated the law by doing so. If, on the other hand, she ejected them for some other non-discriminatory reason, that’s an entirely different story.

And here’s where the idea of fact-finding comes into play. Sure, it looks bad to see two black men forced out of a Starbucks when it seems they’ve done nothing wrong. Social media explodes, and racial tensions being what they are, it’s very easy to assume that this is just another sad example of the absurdly disparate treatment black Americans face every day, even in mundane aspects of their lives. If that was the backstory here, these two men can sue, and if the finder of fact believes the manager’s decision had been based on race, they will win. The Internet was won over almost immediately following this incident, so it’s not hard to a believe that a jury would follow suit.

On the other hand, perhaps there is more information yet to be revealed. Perhaps there was some non-racial reason the manager wished to eject the two men. After all, it seems a bit odd that the manager of a busy coffee shop in a bustling, diverse city like Philly would call the police at the first sighting of two black people.

In court, Starbucks would need to offer credible evidence about such an alternative rationale. Either way, though, we aren’t going to reveal what was in the manager’s head with viral videos or clever hashtags. Racism exists, and Pennsylvania juries know it. The law is set up to protect victims of discrimination, and if the facts are there, these men will find that the law will stand up for them even when a barista will not.

Starbucks as a company

In a lawsuit, Starbucks would be held responsible for legal wrongdoing of its employee under the theory of respondeat superior. That’s Latin for “when your employee screws up at work, you get stuck with the bill.” So if the Philadelphia manager really did discriminate based on race, Starbucks is going to have to make it right to the tune of several zeroes. The ordeal, the cost, and the terrible PR generated from this whole incident will likely motivate Starbucks to do some better training and make some feel-good public statements.

However, even if this particular manager were found to have been motivated by pure racism, it’s a stretch to blame the discrimination on Starbucks as a company. There are no facts to indicate that Starbucks has a company policy to discriminate on the basis of race. Absent some proof that Starbucks knew this particular manager to pose a problem, there is no reason to believe it could have predicted or prevented the event before it occurred.

Afterward, Starbucks CEO Kevin Johnson issued an immediate statement beginning with the following paragraph:

“I’m writing this evening to convey three things:

First, to once again express our deepest apologies to the two men who were arrested with a goal of doing whatever we can to make things right.  Second, to let you know of our plans to investigate the pertinent facts and make any necessary changes to our practices that would help prevent such an occurrence from ever happening again.  And third, to reassure you that Starbucks stands firmly against discrimination or racial profiling.”

The statement continued to call the incident, “not representative of our Starbucks Mission and Values,” and pledged that Johnson would “meet personally with the two men who were arrested to offer a face-to-face apology.”

The truth is that Starbucks has spent decades building up good credit with the public. It has put itself at the forefront of progressive corporate leadership, and has committed itself to diversity and inclusion. Starbucks has lead initiatives to hire thousands of military veterans and their spouses, has vowed to hire 10,000 refugees, and was one of the first American companies to offer comprehensive health coverage to a majority of employees. Starbucks is entitled to cash in now, and get the benefit of the doubt.

While we’re talking about Starbucks’ history, it’s probably a good idea to point out that #BoycottStarbucks didn’t originate with civil rights activists:

It actually originated with pro-Trump conservatives calling for a boycott based on Starbucks’ decision to hire refugees:

Kinda makes you wonder whether the social media outrage may have been orchestrated by someone (or many someones) who have a problem with Starbucks that has nothing to do with racial discrimination.

[Featured post image via via HAKINMHAN/Shutterstock]

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