E.E.O.C. v. Joe's Stone Crab, Inc.

• Decision Date: 03 July 1997
• Docket Number: No. 93-1082-CIV.,93-1082-CIV.
• Citation: 969 F.Supp. 727
• Parties: EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff, v. JOE'S STONE CRAB, INC., Defendant.
• Court: U.S. District Court — Southern District of Florida

969 F.Supp. 727

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff, v. JOE'S STONE CRAB, INC., Defendant.

No. 93-1082-CIV.

United States District Court, S.D. Florida.

July 3, 1997.

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Gedety Serralta, Donald Tyler, Miami District Office, EEOC, Miami, FL, for Plaintiff.

Robert D. Soloff, Donald M. Papy, Kim L. Picasio, Fort Lauderdale, FL, for Defendant.

PARTIAL FINAL JUDGMENT FINDING JOE'S STONE CRAB, INC. GUILTY OF SEX DISCRIMINATION

HURLEY, District Judge.

THIS CASE, tried to the court, involves allegations of sex discrimination in the hiring of food servers at a Miami Beach restaurant. The plaintiff, Equal Employment Opportunity Commission (EEOC), contends that the defendant, Joe's Stone Crab, Inc., the owner and operator of Joe's Stone Crab Restaurant (Joe's or "the restaurant"), intentionally discriminates against women by refusing to hire them for food server positions in violation of § 703 of Title VII of the Civil Rights Act of 1964, as amended. Alternatively, the EEOC contends that Joe's violates Title VII by using hiring practices that have a disproportionate and adverse impact upon women. Based on an evaluation of the evidence, the court finds that the EEOC has not proved intentional discrimination. It has established, however, that Joe's uses employment practices that have an illegal disproportionate impact on women. Since the law treats such disproportionate impact to be the functional equivalent of intentional discrimination, the court grants partial final judgment on liability in favor of the plaintiff EEOC. The court also reserves jurisdiction to conduct a separate trial on damages and other affirmative and injunctive relief at a future setting.

FINDINGS OF FACT

A. General Historical Background

1. Joe's Stone Crab Restaurant is a landmark on Miami Beach. Founded in 1913, two years before the incorporation of the City of Miami Beach, Joe's opened in a small wooden bungalow where customers were served on the front porch. Today, still at the same site, Joe's occupies an enlarged facility that seats approximately 440 patrons. It consists of several dining rooms and bar areas, a kitchen, a take-out section, an office, a laundry and a multi-story parking garage. The restaurant serves up to 1450 dinners each mid-week evening during the stone crab season, which lasts from October to May. Between 1500 and 1800 dinners are served on busy weekend nights. Long lines and waiting periods are commonplace. Indeed, Joe's is so popular that patrons have been known to come directly from the airport with luggage in hand.

2. Joe's is owned by and has been under the continuous management of the same family (now the fourth generation) since the restaurant opened. From the first years, when it was literally a "mom-and-pop" operation, the restaurant gradually added staff, first with relatives and then others. By the late 1970s and early 1980s, Joe's had become a large, thriving enterprise, and consequently, the owners delegated hiring decisions to department heads. In 1985, Grace Weiss and Jesse Weiss, the daughter-in-law and son of the founders, respectively, retired and passed the managerial reins to their daughter Jo Ann. She embarked on an ambitious program of updating the menu, expanding the restaurant and refurbishing the physical plant. Despite what she described as an "all-encompassing role," she continued the policy of delegating hiring decisions to department heads. The head waiter or maitre d' continued to have complete authority over the hiring of food servers.

3. Today, Joe's employs between 230 and 260 employees, most of whom work in departments unconnected with this litigation, e.g., kitchen, laundry, shipping, take-away and cashiering. For many years, the food serving staff numbered about thirty. This figure increased to seventy when Joe's added a luncheon shift in 1979. Throughout its history, Joe's has experienced extraordinary employee loyalty and longevity. This is due, in part, to a generous benefits package which includes individual and family health coverage, dental benefits and profit sharing. Several employees compared the working atmosphere at Joe's to that of a large, caring family, and cited examples of the owners' generosity to employees in need. Grace Weiss, the former owner and manager for many years, testified that "people have worked for us for twenty, thirty, forty years — their whole work experience." For example, Calvin Keel, the head of the kitchen department, has been at Joe's for over thirty-eight years. An expert in restaurant management testified that "[v]ery few restaurants have as low a turnover as Joe's."

4. Low turnover and the widely-recognized potential to make "good money" combine to make food server positions at Joe's scarce and coveted. Employees whose wages are largely dependent on tips benefit from the moderate to expensive bill that follows a dinner of stone crabs or other entrees plus à la carte side dishes. Compensation is further enhanced by the busy pace at Joe's. In an industry where the norm is two and one-half table turnovers per night, Joe's regularly turns a table four to five times a night. Thus, from a food server's perspective, Joe's is a gold mine. One applicant offered this understated description: [Joe's is a] "good place to work, money's good, get summers off and you get benefits."

B. History of Male Server Tradition

5. Women have worked at Joe's throughout its history. In fact, women have predominated as owner/managers. Nonetheless, most of Joe's female employees have worked in positions traditionally viewed as "women's jobs," e.g., as cashiers or laundry workers. Food servers generally have been male. For a brief period during World War II, women worked as food servers, but for the most part these positions reverted to men at the conclusion of the war. From 1950 on, the food serving staff has been almost exclusively male. Indeed, one striking exception proves the rule. Dotty Malone worked as a food server at Joe's for seventeen years, and for most of this time she was the lone female on a serving staff that ranged between twenty-four and thirty-two.

6. The evidence presented at trial does not establish that Joe's management had an express policy of excluding women from food server positions. To the contrary, the evidence portrays owner/managers who have been courageous in opposing overt discrimination. For example, Joe's was picketed for two years when the owners insisted on hiring African-American employees who had been excluded from union members hip because of race. What the evidence in this case does prove is that Joe's management acquiesced in and gave silent approbation to the notion that male food servers were preferable to female food servers. Grace Weiss hinted as much when she said:

In spite of the fact that the restaurant has been run predominately by females (myself and my daughter) for the past 45 years, we have always had mostly male servers. We have a mixture of young and old, black white and Oriental waiters, and occasionally female servers. I cannot explain the predominance of male servers, but perhaps it has to do with the very heavy trays to be carried, the ambience of the restaurant and the extremely low turnover in servers. (Emphasis supplied.)

Recent experience at Joe's, gained when the restaurant hired several female food servers after the start of the EEOC's investigation, establishes beyond a doubt that women have the physical strength to carry serving trays. Witness after witness from Joe's senior staff, including Anthony Arneson, the daytime maître d' personally responsible for all wait staff hiring from 1987 to 1991, and night captain Dennis Sutton, who assisted him in that capacity after 1991, attested to the fact that women are capable of performing every aspect of a food server's job at Joe's.

7. With such evidence, low turnover does not explain the near total absence of women among new hires in this one sector of the restaurant's work force. Rather, Grace Weiss provided a clue to the true cause with her reference to the "ambience of the restaurant." Roy Garret, described by Joe's as its "legendary maître d'," provided more insight when he gave this testimony:

As I said before, we had very few female applicants over the years. It was sort of tradition.... It was always tradition from the time I arrived there that it was a male server type of job. And until just recently when we became aware that we had to do other things, ... originally it was traditionally a male place. We always had women that were qualified women.... Traditionally, I mean, it's just some restaurants, when you walk in, you know there are going to be women waitresses, other restaurants you know it is going to be male waiters.

In the same vein, Joe's general manager Robert Moorehead responded to a question about the lack of female food servers by admitting that it never struck him as odd that female food servers were not being hired. Clearly, what prevailed at Joe's, albeit not mandated by written policy or verbal direction, was the ethos that female food servers were not to be hired.

8. Karen McNeil, Joe's trial expert in restaurant management, provided this historical explanation:

It has been an attitude and standard, it comes from Europe. In all of Europe you will find in all of the grade three restaurants in Europe, there is an impression that service at that high level is the environment of men, and that it ought to be that way. And I think that that attitude a few decades ago came and was felt a little bit here in this country....

Those [European] opinions and those sensibilities, I think were in fact carried here by restauranteurs who hoped to create something serious. If you wanted to create a serious restaurant that would become known in the community, that would become one of the community's great restaurants, you did what they did in Europe, you modeled yourself...