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

• Decision Date: 04 August 2000
• Docket Number: No. 98-5367,98-5367
• Citation: 220 F.3d 1263
• Parties: (11th Cir. 2000) EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, v. JOE'S STONE CRAB, INC., Defendant-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1263

220 F.3d 1263 (11th Cir. 2000)

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

No. 98-5367.

IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT.

August 4, 2000.

[Copyrighted Material Omitted]

[Copyrighted Material Omitted]

[Copyrighted Material Omitted] Appeal from the United States District Court for the Southern District of Florida D. C. Docket No. 93-1082-CV-DTKH

Before BLACK, HULL and MARCUS, Circuit Judges.

MARCUS, Circuit Judge:

This is the paradigmatic "hard" case, and we have labored for many months to reach the right result. On appeal, Defendant, Joe's Stone Crab, Inc. ("Joe's"), challenges the district court's entry of judgment in favor of Plaintiff, the Equal Employment Opportunity Commission (the "EEOC"), on its gender-based disparate impact claims under Title VII. Joe's is a landmark Miami Beach seafood restaurant which from 1986 to 1990 hired 108 male food servers and zero female food servers. After the EEOC filed its discrimination charge in June 1991, Joe's hired 88 food servers from 1991 to 1995, nineteen, or roughly 21.7%, of whom were female. The district court concluded that while Joe's was not liable for intentional discrimination, it was liable for disparate impact discrimination based on these statistical disparities. After thorough review, we vacate the district court judgment, and remand for reconsideration of the EEOC's intentional discrimination claim consistent with this opinion.

In our view, the facts of this case render a disparate impact finding inappropriate. A disparate impact claim requires the identification of a specific, facially-neutral, employment practice causally responsible for an identified statistical disparity. On this record, the district court has identified no facially-neutral practice responsible for the gender disparity in Joe's food server population and we can find none. However, some of the district court's subsidiary findings suggest that there may have been facially-discriminatory practices of Joe's that were responsible for the identified hiring disparity, although the district court expressly rejected the EEOC's intentional discrimination claim in summary fashion. Several powerful prudential considerations, including the fact that the record is replete with conflicting witness testimony permitting more than one resolution of this claim, and the fact that some of the district court's subsidiary factual findings are in apparent conflict with its conclusion that Joe's was not liable for intentional discrimination, persuade us that the wisest course is a remand to the district court so that it may consider further its factual findings and conclusions of law in light of this opinion.

I.

The facts of this case are reasonably straightforward and are fully outlined by the district court in EEOC v. Joe's Stone Crab, Inc., 969 F. Supp. 727 (S.D. Fla. 1997). Joe's Stone Crab, Inc. is a fourth-generation, family-owned seafood restaurant and Miami Beach landmark. During the stone crab season, which lasts from October to May, the restaurant is extremely busy-- serving up to 1450 patrons each weeknight and up to 1800 patrons each weekend night. Today, the restaurant employs between 230 and 260 employees; of those, approximately 70 are food servers. Throughout its history, Joe's has experienced extremely low food server turnover--a result of Joe's family ethos, generous salary and benefits package, and its seven-month employment season. From 1950 onward, however, the food servers have been almost exclusively male.

On June 25, 1991, the Equal Employment Opportunity Commission ("EEOC") filed a discrimination charge, under sections 706 and 707 of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et. seq., alleging that Joe's discriminated on the basis of sex in the hiring and recruiting of food servers. On April 17, 1992, the EEOC issued its Decision, finding a pattern and practice of intentional sex discrimination in Joe's hiring and recruiting practices. Specifically, the EEOC determined that a word-of-mouth recruiting system and Joe's reputation for hiring only male food servers resulted in almost no women actually applying for food server positions at Joe's. The EEOC also found that Joe's subjective hiring practices were responsible for the gross statistical disparity between the percentage of female food servers in the Miami Beach community and the percentage of female food servers working at Joe's. As required by Title VII, see 42 U.S.C. § 2000e-5(b), the EEOC and Joe's attempted to conciliate the Decision's findings but were unsuccessful.

On June 8, 1993, the EEOC filed a complaint in the Southern District of Florida alleging that Joe's violated Title VII through both intentional disparate treatment discrimination as well as unintentional disparate impact discrimination. The gravamen of the complaint centered around the EEOC's findings with respect to Joe's hiring and recruiting practices for food servers. The EEOC sought permanent injunctive relief, back pay, and prejudgment interest for qualified claimants.¹ Over fifteen days interspersed from August 1996 to December 1996, the district court held a liability bench trial. The analysis at trial focused on two discrete time periods: first, the pre-EEOC charge period from 1986 to 1990; and finally, the post-EEOC charge period from 1991 to 1995. On July 3, 1997, the district court issued a partial final judgment-- making a series of factual findings with respect to Joe's employment practices. See Joe's Stone Crab, 969 F. Supp. at 727-35.

To hire new food servers, Joe's conducts a "roll call" every year on the second Tuesday in October. Although Joe's rarely advertises, significantly, the district court found that the roll call is "widely known throughout the local food server community," and typically attracts over 100 applicants for only a limited number of slots. Joe's Stone Crab, 969 F. Supp. at 733. At a typical roll call, each applicant completes a written application and an individual interview. Selected applicants then enter a three-day training program where they shadow experienced servers. Upon successful completion of the program, they then become permanent hires. See id.

Until the EEOC's charge, roll call interviews and hiring selections were handled exclusively by the daytime maitre d' with occasional interview assistance from other staff members.² Hiring decisions were made by the daytime maitre d' on the basis of four subjective factors (appearance, articulation, attitude, and experience) and without upper management supervision or the benefit of instructive written or verbal policies. See id. After the EEOC's discrimination charge in 1991, Joe's changed its roll call format somewhat. All applicant interviews were conducted by three members of Joe's management.³ In addition, each applicant was required to take and pass a "tray test," which involved the lifting and carrying of a loaded serving tray, or else be automatically disqualified from a food server position. The district court found the tray test to be a "legitimate indicator of an individual's ability to perform an essential component of a food server's job at Joe's," id., and that "women have the physical strength to carry serving trays," id. at 732.

In addition to its description of Joe's hiring process, the district court also made several subsidiary findings relating to the historical operation of the roll call system. The district court observed that while "women have predominated as owner/managers," "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." Id. at 731. Although Joe's hired female food servers during World War II, most of these positions "reverted to men at the conclusion of the war." Id. Further, the district court found that, "[f]rom 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." Id.

In explaining this historical dearth of female food servers, the district court found that Joe's maintained an "Old World" European tradition, in which the highest level of food service is performed by men, in order to create an ambience of "fine dining" for its customers. Id. at 733. The district court elaborated:

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 membership 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.

Id. at 731. As evidence for this finding, the district court cited three pieces of witness testimony. First, the district court pointed to the testimony of Grace Weiss, Joe's owner, who stated, "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." Id. at 731-32 (emphasis added by the district court). Second, the district court highlighted the testimony of Roy Garrett, a longtime maitre d' of Joe's with hiring authority, who explained that Joe's had a "tradition" that food server positions were "a male server type of job":

As I said before, we had very few female applicants over the years. It was sort of a tradition. . . ....