Lowe’s, The Rights Of Racist Customers, And Why Lawyers and Doctors Aren’t Like Deliverymen

Now, if Lowe's drivers had law degree's, this would be a different story....

Now, if Lowe’s drivers had law degree’s, this would be a different story….

A fascinating story unearthed by master ethics sleuth Fred:

In Danville, Va., a customer specifically asked that a Lowe’s delivery be administered by delivery personnel who was not an African American. Marcus Bradley, the black driver assigned to the delivery, was called back to the store, and replaced. When the woman who made the request was interviewed, she said, “I got a right to have whatever I want and that’s it…No, I don’t feel bad about nothing.”

For hiss part, Bradley said that he was surprised that the store didn’t stand up for him, but that he would stay in his job. “I mean I gotta work. I’m going to keep going to work like I’ve always done. But I would think Lowe’s would take it into consideration to think about what they’re doing next time,” he said.

Lowe’s corporate office, when informed about the incident, released a statement that said in part… last week, and they said they’d look into it. Wednesday, we received this statement:

“The situation brought to our attention was troubling and an investigation was immediately undertaken. Under no circumstances should a discriminatory delivery request be honored as it is inconsistent with our diversity and inclusion core values and the request should have been refused. The investigation has concluded and the individuals involved [ that is, the manager who pulled Bradley off the delivery] are no longer with company.”

This is obviously the correct response. This awful woman can refuse to admit anyone into her house she chooses, but she can’t make a company discriminate on her behalf.

Delivery men and hardware chains are different from doctors, lawyer, hospitals and law firms, however. The AMA has held, for example, that where a patient’s irrational racial or ethnic bias against a doctor undermines his trust in his treatment, it is not unethical for the hospital to acceded to his wishes, and may ne unethical for it to force medical personnel on him that might make his recovery less certain. Then there is this, a hypothetical that I have given for years to D.C. lawyers:

Lon is a partner in a large D.C. law firm. He has been given the key job of closing the deal to represent the irascible Horrible old man Bob Gogmagog, founder of Gogmagog’s Grog. If Lon fails, the firm almost certainly will go under.

“Get this client, whatever it takes!” commanded Tina Turner, the senior partner. “He’ll want to make a deal on the spot, so you settle the terms… don’t come running back to us, it will just foul the deal.”

From the moment Gogmagog walked in the door, Lon smelled trouble. “I expect to pay a lot of money, that’s fine,” said the horrible old man. “But I want a lawyer I can relate to, get it? Do you have a good female environmental law specialist?”

“Why, yes,” stuttered Lon. “Minnie Cooper, one of our partners, is the best…”

“Don’t want her!” shouted Gogmagog. “Women have no damn business being lawyers anyway! Besides, don’t think I could trust myself with her, if she’s a looker, if you get my drift. Har! Har! Got any men who can do the job?”

“Well, certainly, uh…I have a background in environmental law, and…”

“GOOD!” yelled Gogmagog. “You’re my man! “

QUESTION : Can Lon accede to Gogmagog’s insistence on a male lawyer?

1. Yes…DC Rule 1.2 requires the attorney to consult the client regarding means.
2. Yes. The client can hire whoever he wants to.
3. No. Not without getting Minnie Cooper’s consent.
4. No. DC Rules forbid it.
5. He can, but he shouldn’t.

The most chosen answers are 2. and 5, and they are both correct. Nothing in the ethics rules requires a firm or a lawyer to accept a client it finds repulsive, though the traditions of the profession dictate that lawyers don’t judge their clients or their objectives. Lawyers exist to provide skilful access to the law, and the client’s objectives, beliefs, motives and attitudes need not be in agreement with the lawyer’s in any way. [ ABA Model Rule 1.2 b: (b) A lawyer’s representation of a client, including representation by appointment, does not constitute an endorsement of the client’s political, economic, social or moral views or activities.] Thus the better answer is that a firm can accept the client and provide the client with a lawyer or lawyers that he will feel comfortable working with to achieve his legal objectives. The client’s  biases are still his own, and if he doesn’t want a young lawyer, a black lawyer, an old lawyer or a female lawyer and the firm can accommodate him without harming the lawyers he doesn’t want while still serving his needs competently and zealously, then the firm breaches no ethics principles, and no laws, by acceding to the client’s sexist, in this case, demands.

Why is allowing a bigoted or sexist client to reject a qualified minority or female attorney within the scope of legal ethics, and yet Lowe’s doing so justifies firing with cause? The distinction is this: professions in the formal sense exist, selflessly and entirely, to serve the essential needs of human beings as those human beings see them. This even extends, in some cases, to indulging bigotry. If a dying Catholic wanted an Irish priest to deliver last rights, the Church would be unethical, placing the needs and beliefs of others over those of the human being in need, to refuse. In the case of law firm clients, they must work closely with their lawyers, and the firm cannot ethically force them to work with a lawyer they can’t and won’t trust. The lack of a good working relationship may have tangible harm to the client.

The fact that the delivery man isn’t trusted by the racist customer, however, won’t stop the delivery or harm her receipt of what she purchased. She should have been told that her options were to admit the black employee, arrange delivery by another source, or get a refund and take her business elsewhere. Since the store’s duty to the client does not exceed its duty to its employees, the Lowe cannot tolerate discriminatory conduct. Zealous representation, however, means that a lawyer subordinates his or her own beliefs and needs to those of the client.

That’s one reason they are paid more than deliverymen.

________________________

Pointer: Fred

Facts: WSET

 

 

 

 

 

19 thoughts on “Lowe’s, The Rights Of Racist Customers, And Why Lawyers and Doctors Aren’t Like Deliverymen

  1. Took me a little, but I remember hearing this 20 years or so ago:
    ….
    In the mid 60’s a U.S. Navy cruiser put into port in Mississippi for a week’s shore leave. The Captain was more than a little surprised to receive the following letter from the wife of a wealthy plantation owner.
    Dear Captain,
    Thursday will be my daughter Melinda’s coming of age party. I would like you to send four well-mannered, handsome, unmarried officers to my home.
    They should arrive at 8:00 p.m. prepared for an evening of polite Southern conversation and dance with lovely young ladies. One last point: No Jews. We don’t like Jews Sure enough at 8:00pm on Thursday, the lady heard a rap on the door which she opened to find, in dress uniform, four exquisitely mannered, smiling BLACK officers. Her lower jaw hit the floor, but pulling herself together she stammered, “There must be some mistake.”

    “Madam,” said the first officer, “Captain Cohen doesn’t make mistakes!”

  2. Loews to its credit has a nondiscrimination policy — as far as I know it does not need to have one that pertains to discriminatory delivery requests. Similarly a law firm can (but need not) have a similar policy without offending legal ethics. Therefore, while lawyers have ethics rules and Loews does not, I don’t really see that big a difference.

    • But law firms are required not to discriminate in employment, which does not apply to their client’s choices of lawyers. Neither do firm nondiscrimination policies, at least the ones I’ve reviewed.

      • Agreed, but can’t a law firm have a policy that says “we will not honor client requests that exclude lawyers based on race, gender, etc.”? I don’t read the ethics rules as excluding this.

        • They don’t, but as an elderly black lawyer in Nashville once said after this hypo caused a male outbreak of horro9r and political correctness, “You men need to grow up. You give all clients the services they need, with lawyers they want to work with.”

          I’ll often respond to that policy argument, by saying–“So you have a firm that defends serial killers, Bernie Madoff, Jeffrey Dahmer, Ken Lay, Bill Cosby, white collar crooks and despoilers of the earth, but refuse to represent bigots who want a good lawyer to do something completely legal?”

  3. What about cab drivers? When I lived in the South end of Boston, many moons ago, it was common knowledge that white cab drivers didn’t pick up fares from Roxbury and black drivers didn’t pick up fares from Southie. I think it had less to do with the customer’s wishes than it did with the cabbies fearing for their own safety. The result, of course, was that if you were in Roxbury, for instance, you might have to wait longer because a black driver simply wasn’t available. (Any cabbie would pick up in the South End.) I don’t know if this has changed over the years, but I’d be interested in your thoughts.

  4. I don’t like this story. It’s like the only person who walked away happy was the racist. The deliveryman experienced just as much racism as he would have either way, the manager was fired, and she’s sitting on her couch eating Twinkies.

    And on that note…. Are we really applauding yet another job lost to internet mobs? Was that the appropriate measure? What was the lesson here: Oppose racism at any cost or face termination? How does that foster understanding? Build a culture other than one that walks on eggshells? How does that do anything but build more animosity and fear?

    • Oh, I think the local news exposure was enough here—the social media was frosting on a rotten cake. Lowe’s has a big white picket fence crowd to please in VA.—they knew they had to act hard and fast.

  5. Like Humble Talent my biggest problem is the firing of the Lowes Manager; assuming the action was taken to protect the company’s business and not because of any innate racism on the part of the manager. I do not support the Darth Vader school of management, and I speak from the perspective of a business owner.

    This manager should have been spoken to – call it disciplined or retrained if you like – and should have apologised to the employee concerned; but fired, not really.

    The correct response to the call is still take it or get your money back of course.

    • Paul, I agree that’s the best response, certainly, if the matter doesn’t get publicized. Once it is publicized, especially in a racially and politically diverse state live Virginia,corporate management would be taking an unreasonable risk not to act as if it’s a big deal. It’s not fair to the store manager or assistant manager, who made a bad call in a sensitive situation and should have had a second chance, but when everything is public second chances aren’t always good risks.

      • On the other hand, “rearing up on your hind legs” (from ‘The Virginian’) is not always the best way to go, either. As you said, may be an unreasonable risk if it has already become publicized.

    • The manager was screwed either way.

      1. If he didn’t accede to the customer’s request, that customer was likely to complain. She had no problem being publicly unapologetic on TV. Result: The manager’s being asked “WTF?” by his superiors.

      2. As we see from what DID happen when he DID accede to the request, he got fired.

      The company made the wrong call here. Maybe you re-train the manager, or demote him… but firing was way too harsh.

      • I was wondering about that as well. It is most likely that the manager wasn’t motivated by racism, but by fear of upsetting a customer, perhaps an important customer. I wonder what would have happened if he had paid the black driver for the delivery, then charged the woman double delivery for her ‘special’ request? I don’t think it as ethical as refusing, but I kind of like the idea of the ‘racism tax’.

  6. I accept your point there Jack.

    I’m looking at this from the opposite side of the world and so missed some of the nuances involved.

    It seems to me however that we are talking about ethics and we have just slipped into politics. To ‘counsel’ the manager, make a public apology and say this is where we stand on this situation, and have the manager apologise publicly is, to me, the ethical response, and good advertising. To sack the manager is a political response.

    The trouble with ethics is that there are just as many costs, possibly many more, with being ethical as being unethical! If you are going to act ethically sometimes you simply have to wear the consequences.

    At the risk of moving off topic I will give you two examples of where I have recently seen both types of behaviour, and the consequences. Delete if you wish.

    In our locale we had the CEO of an organisation – I’m obviously trying to not be too specific here – sack a repeat offender. This was the correct ethical decision in this case. Unfortunately this offender was immediately picked up by a competitor – Unethical behaviour by the competitor – and took a huge amount of business with him – unethical behaviour by the clients. The Board then sacked the CEO – Unethical behaviour by the board.

    The second example you may be familiar with.

    Jeremy Clarkson, lead presenter on the UK show Top Gear punched out another party at the work site. The BBC sacked Clarkson, effectively wiping out the program – ethical, at great cost. A competitor picked up Clarkson and has set up a new program to replace Top Gear – Unethical. Clarkson’s co-hosts have moved to the new program – Unethical. Undoubtedly advertisers will follow – unethical.

    in both these cases behaving ethically had great cost and behaving unethically has been greatly rewarded. I applaud those who acted ethically and will, for example, never once watch the Top Gear replacement, even though I loved Top Gear, or intentionally support anyone who advertises on it.

    • The Top Gear mess I wrote about, pretty much in sync with you. Still, the BBC had no other ethical choice (this is the King’s Pass, or Star syndrome, problem.) The former still is lousy management as long range conduct: an organization that allows rotters to stick around as long as they produce ends up corrupt and dysfunctional eventually.

      Firing the managers isn’t unethical, though, nor is it politics. It’s a fiduciary obligation: the health of the business comes before individual employees. Here in VA there’s a war between Home Depot and Lowe’s–all Lowe’s needs is a race controversy and it’s dead. It had no choice, just as the BBC had no choice.

      In your first story, however, firing the CEO is awful, and the company will either pay down the road, or change. High level performers who break rules destroy organizations.

      • I was about to jump in and suggest that in the Lowes case you were putting money – fiduciary obligation – above ethics but on (semi)mature reflection I see your point. On any grounds you might like to consider the company was required to do SOMETHING about the manager; from that point on it became a management decision rather than validly being described by my ethical vs political comparison.

        I guess at heart I am an hopeless romantic and consider that the best solution for the world, as opposed to just the company and individuals involved, would be one where; the company ‘publicly’ disciplines the managers; the managers publicly apologise to the employee and the employee responds by publicly accepting the apology and saying some nice stuff about the managers and the company. This would be a great lesson to the world on how we should live. Even better would be if the employee had gone straight to the managers and the entire thing was sorted out in house and privately. Like I said; a hopeless romantic!

        You may argue that that puts a huge burden on the victim, and it does. It would still be the appropriate way to respond however – assuming it is true.

        As an aside it appears the employee was somewhat critical of the company. This seems unfair since the look to have behaved appropriately. The criticism should have been directed exclusively at the managers.

        Too the BBC. You say: “the BBC had no other ethical choice”. Having thought about it more I believe that in reality they had no other choice in ANY practical sense. In this case you can drop the “Ethical”. They do nothing – they get their hip pocket and the adjacent anatomy sued off by the victim and have massive fallout to boot, then they either belatedly sack Clarkson or he goes on to punch out six other employees; or, they discipline Clarkson internally and he leaves anyway whilst they look as weak as dishwater. They didn’t have any other ethical choice, but they didn’t have any unethical choices that would have worked out either making the ethical part moot.

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