EEOC v. Joe's Stone Crabs, Inc.

[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
AUGUST 4, 2000
No. 98-5367
THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 93-1082-CV-DTKH
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiff-Appellant,
versus
JOE’S STONE CRAB, INC.,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(August 4, 2000)
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
2
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
3
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.
4
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
1
The EEOC filed its original complaint on June 8, 1993. Joe’s filed a motion for a more definite
statement. In response, the EEOC amended its complaint on September 20, 1993.
5
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
2
In 1986, the daytime maitre d’, Raymond Damiano, was responsible for interviewing and hiring
new food servers, with occasional assistance from dinner maitre d’ Roy Garret.
Beginning in 1987, Anthony Arneson became the daytime maitre d’ and was given sole
responsibility for hiring new food servers, although various staff members occasionally assisted him
in the interview process. Specifically, Arneson testified that from 1987 to 1990, Night Captain
Dennis Sutton, Night Captain George Silas, Lunch Captain Kevin Murphy, and Maitre d’ Roy
Garrett all sat in on the interview process at various times and offered him their opinions on the
prospective servers interviewed.
3
After the charge was filed in 1991, management directed Arneson to conduct interviews with
a panel composed of Night Captain Dennis Sutton and General Manager Robert Moorehead. Id. at
733. In subsequent years, both male and female employees served on the panel.
6
“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:
7
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. . . . 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 . . . .
8
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.
Id. at 732 (emphasis added).4 Finally, the district court referred to the testimony of
Joe’s own restaurant industry expert, Karen McNeil, for a historical explanation of
the “male-only” server tradition.
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 after them. I
don’t think anybody thought about it. They said, well,
men did it there. It tended to be men here, too, who had
those skill sets, and so men were [sic] automatically
became the labor pool.
4
Similarly, Anthony Arneson, the maitre d’ in charge of hiring beginning in 1987, testified that
gender was never mentioned by Joe’s managers or employees because of a “perception that people
didn’t even think about . . . that many fine dining establishments throughout the world have an all
male staff.”
9
Id. The district court added that “Joe’s [had] sought to emulate Old World
traditions by creating an ambience in which tuxedo-clad men served its distinctive
menu.” Id.
With this historical background in place, the district court then focused on
Joe’s female hiring statistics for the relevant pre- and post-charge periods. For the
pre-charge period of 1986-1990, the number of female food server applicants at
Joe’s annual hiring roll calls was minuscule. While there is little available
evidence as to the actual numbers of female applicants at these roll calls (because
Joe’s historically did not retain any employment data from its roll calls), the
district court determined, and both parties agreed, that during this period, no more
than two or three women per year (or, at most, 3% of the overall applicant class)
actually attended the roll calls. See id. at 733. In that same period, 108 new male
food servers were hired while zero women were hired. See id. During the post-
charge period (from 1991 to 1995), many more women (in all, 22% of the actual
applicant pool) applied for food server positions. Of Joe’s 88 new food server
hires during this period, 19 were women. These post-charge figures translate into a
female hiring percentage of 21.7%-- a percentage almost exactly proportional to
the percentage of females in the actual applicant pool. See id. at 733-34. Joe’s
10
female applicant flow data for the post-charge period breaks down the following
way:
Season Women applicants Women hired
1991-92 15.1% 20.0%
1992-93 21.9% 22.7%
1993-94 23.0% 10.5%
1994-95 26.8% 35.3%
Oct.--Dec.1995 23.3% 20.0%
-------------------------------------------------------
Average 22.02% 21.7%
Id. at 734.
However, in making its findings, the district court found this actual applicant
flow data “unreliable because it is skewed.” Id. at 734. Relying on hearsay trial
testimony from local female food servers, the district court found that Joe’s public
reputation for not hiring women encouraged women to self-select out of the
11
hiring process-- thereby skewing the actual applicant flow.5 See id. at 733-34. The
district court explained:
In the preceding findings, the court held that Joe’s
reputation in the community, which reflected the
restaurant’s historical hiring practice, led potential female
applicants not to apply for server positions. Joe’s
reputation, therefore, was largely responsible for the
5
At the liability trial, thirteen witnesses testified that Joe’s had a reputation in the Miami server
community for hiring only men as servers. For example, Catherine Stratford testified that she
moved from New Jersey to Miami Beach to attend Joe’s “roll call” in 1990. After her move, she did
not apply because her roommate told her that Joe’s did not hire female servers. In addition, Barbara
Mommsen testified that “it was common knowledge that they [Joe’s] didn’t hire women at the time”
and that “Joe’s had a reputation of being one of the best restaurant jobs to get if you were a man.
As far as being a woman, you need not apply.” The district court later concluded:
As the court detailed in its findings of fact, Joe’s has been a ‘male
server type’ establishment for the better part of this century. While
women have predominated among Joe’s owner/managers, as well as
among the laundry, cashiering, and take away staff, women have
systematically been excluded from the most lucrative entry level
position, that of server. So accepted was this practice that Joe’s
general manager, Robert Moorehead, candidly admitted that it never
occurred to him that something might be wrong when 108 positions
were filled sequentially with male applicants between 1986 and 1990.
Many witnesses testified that, as a result of this known practice, Joe’s
created a reputation for not hiring women servers and thereby
induced qualified women to self-select out of the applicant pool at
roll call. As a result, the roll call became skewed and remains skewed
to the present day.
By failing to address its entrenched reputation and the resulting effect
on the roll call, Joe’s leaves undisturbed a significant factor causing
the ongoing exclusion of women from server positions. Unless and
until Joe’s takes reasonable steps to confront the reputation it has
created, it will continue to experience skewed applicant pools at its
annual roll call.
Id. at 740.
12
gender skew in the pool of applicants at the annual roll
call. It is well-settled that an employer’s reputation for
discriminatory hiring practices can lead to a self-selected
applicant pool not reflective of the actually available
labor pool. Quite irrespective of the intentions of the
employer, a rational qualified female candidate is likely
to self-select out of the application process, declining to
make what she considers a ‘futile gesture.’ Thus, the
existence of such a reputation is highly relevant to
whether Joe's actual applicant flow data reflects the
available labor pool. Put more narrowly, evidence of
Joe’s reputation in the food serving community was
admitted as highly relevant to whether, how, and why
would-be applicants were chilled from applying for
traditionally male jobs. While Joe’s vehemently
contested the admissibility of this reputation evidence, its
objections fall wide of the mark. They presuppose that
evidence of Joe’s reputation was offered as proof of
conduct consistent with the reputation, as proof of Joe’s
hiring practices themselves, or as proof of bad character
or intent to discriminate. None of these is the case.
Evidence of Joe’s reputation was admitted solely to
establish the existence of the reputation, and not for any
other purpose.
Id. at 736 (internal citations omitted). Although the district court noted that female
food server applications to Joe’s dramatically increased as a result of publicity
about the EEOC charge, it still found Joe’s post-charge applicant pool data
(depicting a female applicant pool of 22%) unreliable after comparing it with
13
hiring rates, between 30% and 40% female, for other area seafood restaurants.6
See id. at 734.
Having found the actual applicant pool data wholly unreliable, the district
court discarded it and then set about selecting alternative non-applicant labor
market data. The EEOC’s expert witness, a labor economist, suggested a qualified
female labor pool of 44.1% based on 1990 census data for female food servers
living and/or working in the Miami Beach area (a labor pool which included
cocktail and buffet servers). See id. at 734-35. Not surprisingly, the district court
rejected this figure in part because there was no demonstration that this female
labor pool necessarily was qualified to work at Joe’s. Instead, the district court
“refined” the relevant labor pool to include all female servers who lived or worked
on Miami Beach and earned between $25,000 and $50,000-- thereby “using past
earning capacity as a proxy for experience, and by extension, experience as a proxy
for qualification.” Id. at 735. Solely based on this alternative methodology, the
district court was able to find “that at all relevant times, 31.9% of the available
labor pool has been female.” Id.
6
Specifically, the district court found that, as of 1991, the Rusty Pelican had a 35.9% female wait
staff; the 94th Aerosquadron had a 42.1% female wait staff; and Southpointe Seafood had a 29.5%
female wait staff. We note, however, that unlike Joe’s, two of these restaurants, the Rusty Pelican
and the 94th Aerosquadron, are not located on Miami Beach.
14
With these findings in place, the district court then drew two pertinent
conclusions of law. First, the district court summarily rejected the EEOC’s
disparate treatment claims without analysis, stating only that “the court finds that
the EEOC has not met its burden of proof under disparate treatment analysis.” Id.
at 735. The only other mention of the disparate treatment claims is found in the
introduction of the district court’s opinion. There, the district court unambiguously
states: “[b]ased on an evaluation of the evidence, the court finds that the EEOC has
not proven intentional discrimination.” Id. at 730. Second, however, the district
court determined that Joe’s was liable for disparate impact discrimination. 7 See id.
Specifically, the district court found that “the challenged employment practice in
this case. . ., [Joe’s] undirected and undisciplined delegation of hiring authority to
subordinate staff,” id. at 738, was responsible for the statistical disparity between
the 31.9% female “available” labor pool and Joe’s female hiring rates in the pre-
charge (0%) and post-charge (21.7%) periods, id. at 739-40. The district court
then entered a partial judgment of liability in favor of the EEOC.
7
Although not originally included in the amended complaint, at the conclusion of the trial, the
EEOC moved to amend its complaint to include an allegation that the subjective interviewing
process had an adverse effect on women. The district court granted the motion and denied Joe’s
corresponding motion to strike this claim. Joe’s has not specifically challenged these rulings on
appeal.
15
On April 15, 1998, a bench trial was held on the remedies portion. The
EEOC presented five female plaintiffs who unsuccessfully applied for food server
positions at Joe’s in the 1990's. They testified that they would have applied to
Joe’s at an earlier juncture but for the fact that they knew applying was futile based
on Joe’s male-only reputation. The district court awarded four of them backpay
relief plus prejudgment interest. The district court also ordered extensive
injunctive relief through the year 2001 that required Joe’s to adopt a statement of
non-discrimination in the hiring of food servers, comply with the district court’s
monitoring of Joe’s future hiring and recruiting practices (including its public
advertising of hiring roll-calls), allow the supervision of each roll-call by a court-
appointed monitor, permit the introduction of a standardized tray test at the roll-
call, and provide mandatory training sessions with an industrial psychologist for
all of Joe’s hiring decisionmakers.
II.
The first and central issue in this appeal is whether the district court erred in
finding that the EEOC had established disparate impact discrimination.8 We
8
Defendant Joe’s raises thirteen separate issues on appeal. These issues can be divided into three
broad categories: (1) whether the district court erred in failing to dismiss this action or limit the
scope of the judgment based upon procedural defects; (2) whether the district court erred in finding
for the plaintiff EEOC on the merits of its disparate impact claims; and (3) whether the district court
16
review the district court’s conclusions of law de novo, and its factual findings for
clear error. See Central State Transit & Leasing Corp. v. Jones Boat Yard, Inc.,
206 F.3d 1373, 1376 (11th Cir. 2000); Hill v. Seaboard Coast Line R.R. Co., 885
F.2d 804, 812 (11th Cir. 1989) (citing Eastland v. Tennessee Valley Auth., 704
F.2d 613, 620 (11th Cir.1983)). In this case, where the bulk of the evidence came
in the form of conflicting witness testimony, we allot even greater deference to the
factfinder who is in a better position to assess the credibility of the witnesses. See
Stano v. Butterworth, 51 F.3d 942, 944 (11th Cir. 1995) (citing Anderson v. City
of Bessemer City, 470 U.S. 564, 575, 105 S. Ct. 1504, 1512, 84 L. Ed. 2d 518
(1985)).
That said, we have struggled on appeal to find the proper resolution of this
case. As we explain in detail, we believe that the district court’s factual findings
simply do not support a legal conclusion that Joe’s is liable for disparate impact
discrimination. Based on the district court’s findings, no specific facially-neutral
employment practice of Joe’s can be causally connected to the statistical disparity
between the percentage of women in the qualified labor pool and the percentage of
women hired as food servers by Joe’s.
erred in its calculation of damages and prejudgment interest. We find that Joe’s procedural
arguments clearly lack merit. Because we conclude that the district court erred in finding Joe’s
liable on the merits of its disparate impact claims, we need not address Joe’s damages arguments.
17
A. Disparate Impact
Under Title VII of the Civil Rights Act of 1964, an employer may be found
liable for unlawful sex discrimination under any one of three discrete theories:
pattern and practice discrimination, disparate treatment discrimination, or disparate
impact discrimination. Both pattern and practice and disparate treatment claims
require proof of discriminatory intent;9 disparate impact claims do not. See In Re
Employment Litig. Against the State of Ala., 198 F.3d 1305, 1310 n.8 (11th Cir.
1999). In order to show discriminatory intent, a plaintiff must demonstrate “‘that
the decisionmaker . . . selected or reaffirmed a particular course of action at least in
part ‘because of,’ not merely ‘in spite of,’ its adverse effects on an identifiable
group.’” Id. at 1321 (quoting Personnel Administrator of Mass. v. Feeney, 442
U.S. 256, 279, 99 S. Ct. 2282, 2296, 60 L. Ed. 2d 870 (1979)). Therefore, in a
disparate treatment case, the plaintiff bears the ultimate burden of proving that the
employment action at issue was taken because of the plaintiff’s sex. See Holifield
v. Reno, 115 F.3d 1555, 1564-65 (11th Cir. 1997). Likewise, in a pattern and
practice case, the plaintiff must prove, normally through a combination of statistics
and anecdotes, that discrimination is the company’s “standard operating
9
The features of these two intentional discrimination claims are outlined in detail in Part II,
Section B.
18
procedure.” International Brotherhood of Teamsters v. United States, 431 U.S.
324, 335-36, 97 S. Ct. 1843, 52 L. Ed. 2d 396 (1977); see also Mozee v. American
Commercial Marine Service Co., 940 F.2d 1036, 1051 (7th Cir. 1991).
In contrast, disparate impact theory prohibits neutral employment practices
which, while non-discriminatory on their face, visit an adverse, disproportionate
impact on a statutorily-protected group. See Griggs v. Duke Power Co., 401 U.S.
424, 431, 91 S. Ct. 849, 853, 28 L. Ed. 2d 158 (1971) (explaining that Title VII
“proscribes not only overt discrimination but also practices that are fair in form,
but discriminatory in operation”); see also In Re Employment,198 F.3d at 1311;
Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1117 (11th Cir. 1993). The doctrine
seeks the removal of employment obstacles, not required by business necessity,
which create “‘built-in headwinds’” and freeze out protected groups from job
opportunities and advancement. Griffin v. Carlin, 755 F.2d 1516, 1524 (11th Cir.
1985) (quoting Griggs, 401 U.S. at 431-32, 91 S. Ct. 849). As the district court
correctly identified, “[t]he premise of disparate impact theory is that some
employment practices, adopted without a deliberately discriminatory motive, may
be the functional equivalent of intentional discrimination.” Joe’s Stone Crab, 969
F. Supp. at 735. In essence, disparate impact theory is a doctrinal surrogate for
19
eliminating unprovable acts of intentional discrimination hidden innocuously
behind facially-neutral policies or practices.
The disparate impact framework under Title VII by now is well-settled.
“Since Griggs, Congress has codified the appropriate burdens of proof in a
disparate impact case in 42 U.S.C. § 2000e-2(k) (1994), and a settled jurisprudence
has arisen to implement the methodology.” In Re Employment, 198 F.3d at 1311.
As correctly identified by the district court, a plaintiff in a sex discrimination suit
must establish three elements: first, that there is a significant statistical disparity
between the proportion of women in the available labor pool and the proportion of
women hired; second, that there is a specific, facially-neutral, employment practice
which is the alleged cause of the disparity; and finally, and most critically in this
case, that a causal nexus exists between the specific employment practice identified
and the statistical disparity shown. Joe’s Stone Crab, 969 F. Supp. at 735. See
generally MacPherson v. University of Montevallo, 922 F.2d 766, 771 (11th Cir.
1991) (citing Wards Cove Packing Co. v. Atonio, 490 U.S. 642, 655-56, 109 S. Ct.
2115, 2124, 104 L. Ed. 2d 733 (1989); Watson v. Fort Worth Bank & Trust, 487
U.S. 977, 994-95, 108 S. Ct. 2777, 2789, 101 L.Ed.2d. 827 (1988)).
According to Title VII, “[i]n the first stage of a disparate impact case, the
‘complaining party [must] demonstrate [] that a respondent uses a particular
20
employment practice that causes a disparate impact on the basis of race, color,
religion,
sex, or national origin.’” In Re Employment, 198 F.3d at 1311 (quoting 42 U.S.C.
§ 2000e-2(k)(1)(A)(i)). “To ‘demonstrate’ means to ‘meet[ ] the burdens of
production and persuasion.’” Id. (quoting 42 U.S.C. § 2000e(m) (1994)). “In
other words, in order to surmount the first hurdle in a disparate impact race
discrimination case, the plaintiff must make out a prima facie case ‘that [a] facially
neutral employment practice ha[s] a significantly discriminatory impact.’” Id.
(quoting Connecticut v. Teal, 457 U.S. 440, 446, 102 S. Ct. 2525, 2530, 73 L. Ed. 2d
130 (1982)). As the Supreme Court explained in Watson, “the plaintiff must offer
statistical evidence of a kind and degree sufficient to show that the practice in
question has caused the exclusion of applicants for jobs or promotions because of
their membership in a protected group.” Watson, 487 U.S. at 994, 108 S. Ct. 2777
(emphasis added); see also Edwards v. Wallace Community College, 49 F.3d 1517,
1520 (11th Cir. 1995) (observing that “[a] plaintiff must identify a specific
employment practice that leads to the disparate impact”); MacPherson, 922 F.2d at
771(noting that “‘a plaintiff must demonstrate that it is the application of a specific
or particular employment practice that has created the disparate impact under
attack’”) (internal citation omitted).
21
Once each of these three elements are shown, a plaintiff has established a
prima facie case of disparate impact discrimination. See Fitzpatrick, 2 F.3d at
1117; MacPherson, 922 F.2d at 771. The burden of production then shifts to the
defendant to establish that the challenged employment practice serves a legitimate,
non-discriminatory business objective. See Fitzpatrick, 2 F.3d at 1117. However,
even if the defendant satisfies this burden, a plaintiff may still prevail by proving
that an alternative, non-discriminatory practice would have served the defendant’s
stated objective equally as well. See id. at 1118.
As for the first prong of the analysis, it is critical to observe that no
statistically-significant disparity exists between the percentage of women who
actually applied to Joe’s and the percentage of women who were hired as servers
by Joe’s. The record indicates that for the pre-charge period (October 1986 to June
1991) very few female food servers applied to Joe’s, “perhaps 3% of [all]
applicants,” Joe’s Stone Crab, 969 F. Supp. at 734, out of an actual applicant pool
of between 80 and 120 people a year.10 In this five-year time period, 108 male
food servers were hired and no women were hired. Despite the fact that no women
10
The only real evidence on this point comes from Joe’s Chief Financial Officer, Arnold
Meyerson, who estimated that between one and three women applied each year out of a total
applicant pool ranging from 80 to 120 people a year. At trial, both sides stipulated to this figure and
the district court relied on this stipulation for its findings on actual applicant flow data. See Joe’s
Stone Crab, 969 F. Supp. at 734.
22
were hired during this period, Joe’s pre-charge hiring rate demonstrated no
significant statistical disparity because so few women actually applied for food
server positions.11 For the post-charge period (July 1991 to December 1995), the
district court found that, on average, 22.02% of Joe’s food server applicants were
women and that Joe’s hired roughly 21.7% women for these positions. Both
parties admit (as they must) that, based on this record, there is no statistically-
significant hiring disparity when the actual number of female applicants is
compared to the actual number of female hires for either period.12 In other words,
Joe’s hiring system did not produce a significant statistical disparity between the
actual percentage of women who applied to Joe’s for server positions and the
percentage of women actually hired for these positions.
11
While it is true that during this period Joe’s hired 108 men and zero women, this zero hiring
percentage is deceptive. So few women applied to Joe’s during this time period (perhaps one to
three a year or, at most, fifteen in total as compared to 80 to 120 men or, at most, 600 men in total)
that Joe’s zero hiring rate is not significantly deviant from what Joe’s female hiring rate ought to be
according to laws of random probability (around 1.5% at best). “The mere absence of minority
employees in [] [particular] positions does not suffice to prove a prima facie case of discrimination
. . . .” Carter v. Ball, 33 F.3d 450, 456 (4th Cir. 1994) (citing Moore v. Hughes Helicopters, Inc., 708
F.2d 475, 484 (9th Cir. 1983)).
12
While we adopt a flexible approach for determining whether a particular statistical deviation
is “significant” for disparate impact analysis in light of all the facts and circumstances, see Kilgo
v. Bowman Transp. Inc., 789 F.2d 859, 872-73 (11th Cir. 1986), on appeal, the EEOC concedes that
there is no legally significant statistical disparity in either relevant time period when actual applicant
flow data is used. Both parties’ statistical experts agreed that women needed to comprise five
percent of the actual applicant class (they comprised between one and three percent) to have
generated a significant disparate impact in Joe’s pre-charge actual hiring pool.
23
This insight is important for disparate impact analysis because the mere fact
that Joe’s hired no women in the pre-charge period is not, alone, sufficient to
impose upon Joe’s Title VII liability. To hold otherwise would be to impose
liability upon Joe’s based on “bottom line” reasoning which the Supreme Court has
expressly forbade. In Watson, the Supreme Court made clear that Title VII
liability could not be based solely on “bottom line” statistical imbalances in an
employer’s workforce. See Watson, 487 U.S. at 992, 108 S. Ct. 2777 (explaining
that it is “unrealistic to suppose that employers can eliminate, or discover and
explain, the myriad of innocent causes that may lead to statistical imbalances in the
composition of their workforces”). The Supreme Court then further explained in
Ward’s Cove:
Just as an employer cannot escape liability under Title
VII by demonstrating that, ‘at the bottom line,’ his work
force is racially balanced (where particular hiring
practices may operate to deprive minorities of
employment opportunities), a Title VII plaintiff does not
make out a case of disparate impact simply by showing
that, ‘at the bottom line,’ there is racial imbalance in the
work force. As a general matter, a plaintiff must
demonstrate that it is the application of a specific or
particular employment practice that has created the
disparate impact under attack. Such a showing is an
integral part of the plaintiff's prima facie case in a
disparate-impact suit under Title VII.
24
Id., 490 U.S., at 656-57, 109 S. Ct. 2115 (internal citation omitted) (emphasis
added); see also MacPherson, 922 F.2d at 771.
This disdain for “bottom line” reasoning reflects the belief that holding
employers liable for statistical imbalances per se is inconsistent with Title VII’s
plain language and statutory purpose. Section 703(j) of Title VII, 42 U.S.C.
2000e-2(j), in fact, explicitly rejects the notion that employers must adopt
numerical hiring quotas or “grant preferential treatment . . . on account of an
imbalance which may exist with respect to the total number or percentage of
persons . . . in comparison with the total number or percentage . . . in any
community.” Based on this statutory language, the Supreme Court has interpreted
this provision of Title VII to mean that employers possess no affirmative duty to
redress workforce imbalances not attributable to their own corporate conduct. See
Watson, 487 U.S. at 993, 108 S. Ct. 2777 (finding that employers have no duty
under Title VII to ameliorate uncaused workforce imbalances because such a legal
rule is “‘far from the intent of Title VII’”) (quoting Albermale Paper Co. v.
Moody, 442 U.S. 405, 449, 95 S. Ct. 2362, 45 L. Ed. 2d 280 (1975) (Blackmun, J.,
concurring)); Furnco Construction Co. v. Waters, 438 U.S. 567, 577-78, 98 S. Ct.
2943, 2950, 57 L.Ed.2d. 957 (1978) (finding that employers are under no
affirmative duty to impose hiring quotas to reflect demographic percentages).
25
Indeed, if employers could be held liable for an unlawful disparate impact on
account of statistical workforce imbalances per se, then they would be forced to
use numerical quotas and other forms of preferential treatment in their hiring and
promotion policies, in express contravention of Title VII, in order to insulate
themselves from the potential legal liability that would arise if their workforce
demographics did not closely mirror the demographics of their surrounding
community or local competitors. As a result, a plaintiff must do more than simply
identify a workforce imbalance to establish a prima facie disparate impact case; it
must causally connect a facially-neutral employment practice to the identified
disparity.
In this case, the district court could create a statistically-significant disparity
only by first throwing out the actual applicant data as a point of comparison and
instead comparing the percentage of women hired for server positions at Joe’s with
the percentage of women in the “qualified” labor pool. The district court
recognized that the number of women who actually applied for server positions at
Joe’s was disproportionately low when compared with the number of women in the
Miami Beach area who were seemingly qualified for such positions. There was, in
fact, a significant statistical disparity between the percentage of female applicants
to Joe’s during the pre- and post- charge periods and the percentage of female
26
applicants to comparable area restaurants. Joe’s female applicant percentage of
3% and 22.02% for the pre-and post-charge periods respectively varied sharply
from the female applicant percentage of area restaurants which ranged from 29.5%
to 42.1%. See Joe’s Stone Crab, 969 F. Supp. at 734. As a result of these findings,
the district court found the actual applicant flow data to be “unreliable because it is
skewed.” See id. It concluded that the data was skewed because of the
pronounced self-selection of women out of Joe’s hiring process. See id. The
district court then expressly rejected the actual applicant flow data in favor of an
alternative labor pool consisting of those local food servers who were theoretically
“available” and “qualified” to work at Joe’s.13 After hearing
13
On appeal, Joe’s challenges the district court’s use of this alternative labor data as clear error.
See Kilgo, 789 F.2d at 869-70 & n.10 (suggesting that the decision to reject actual applicant market
data for alternative labor market data is necessarily fact-intensive and reviewed for clear error).
Joe’s contends that the district court improperly relied on hearsay reputation evidence in finding the
actual applicant flow data unreliable. Joe’s also argues that the district court erred in using “refined”
census data to define the relevant labor market for Miami Beach food servers qualified to work at
Joe’s. The district court narrowed the labor pool to those Miami Beach food servers who made
between $25,000 and $50,000--a salary range comparable to what Joe’s food servers earn. Joe’s
claims that the district court’s methodology of using income as a proxy for job qualifications in no
way assures that the labor pool actually consists only of those food servers who have the special
food-serving skills requisite to work at Joe’s. In the disparate impact context, we have explained
that the “[d]efinition of a qualified applicant pool will shift with the nature of the job or job benefit,
and the nature of the challenged employment practice at issue.” In Re Employment, 198 F.3d at
1312. We also have observed that”’[w]hen special qualifications are required to fill particular
jobs,’” the use of certain statistics such as general population figures “becomes troublesome.” Id.
at 1313 (quoting Hazelwood, 433 U.S. at 308 n.13, 97 S. Ct. 2736); see also Alexander v. Fulton
County, Ga., 207 F.3d 1303, 1327-28 (11th Cir. 2000) (noting that class-based disparate treatment
statistics showing that a given minority is underrepresented in the work force by comparison with
the general population is generally useful only for claims involving jobs with low skill levels where
the applicant pool can be considered roughly coextensive with the general population); Peightal v.
27
testimony from the expert witnesses of both parties, the district court arrived at an
“eligible” labor pool, based on 1990 census data refined for
qualification/experience on the basis of past earning capacity, which was 31.9%
female. The district court then used this alternative labor data and compared it to
Joe’s actual hire statistics. By comparing Joe’s pre-charge female hiring
percentage (0%) with the percentage of women in the qualified labor market
(31.9%), the district court created a legally-cognizable statistical disparity.14
Assuming this substitution of data was appropriate, in order to establish
disparate impact discrimination, the EEOC still was required to show a causal link
between some facially-neutral employment practice of Joe’s and the statistical
Metropolitan Dade County, 26 F.3d 1545, 1554 (11th Cir. 1994) (stating that “for positions requiring
minimal training or for certain entry level positions, statistical comparison to the racial composition
of the relevant population suffices, whereas positions requiring special skills necessitate a
determination of the number of minorities qualified to undertake the particular task”). We have had
no prior occasion to determine specifically whether salary is an adequate proxy for food server job
qualifications at a fine dining establishment. Because we conclude infra that the district court erred
in finding that the EEOC established disparate impact discrimination, even if we accept the
alternative labor pool data, we need not address whether the alternative labor pool selected by the
district court was comprised of “qualified” potential applicants.
14
When this same 31.9% figure was applied to Joe’s post-charge hiring statistics, a slight
disparity, bordering on the significant, was found. The statistical variation was between 1.96 to 2.07
under “standard deviation” analysis. However, no particular numerical deviation is required to
establish a prima facie case; instead courts employ a case-by-case approach dependent on the
particularized case facts. See Watson, 487 U.S. at 995 n.3, 108 S. Ct. 2777. In addition, our caselaw
has recognized that post-charge hiring behavior is less probative than pre-charge conduct because
a business may be improving its hiring practices to avoid liability or large damages in their pending
discrimination case. See James v. Stockham Valves & Fittings Co., 559 F.2d 310, 325 n.18 (5th Cir.
1977); Rowe v. General Motors Corp., 457 F.2d 348, 359 (5th Cir. 1972).
28
disparity.15 In other words, the EEOC was required to prove that at least one
facially neutral employment practice proximately caused the disparity. This
finding is essential to avoid the potential conflation of disparate treatment and
disparate impact claims. As we have noted, the central difference between
disparate treatment and disparate impact claims is that disparate treatment requires
a showing of discriminatory intent and disparate impact does not. See In Re
Employment, 198 F.3d at 1310 n.8. In fact, the judicial doctrine of disparate
impact was created in Griggs specifically to redress facially-neutral policies or
practices which visited disproportionate effects on groups protected by Title VII.
The Supreme Court has explained that, “[u]nder the act, practices, procedures, or
tests neutral on their face, and even neutral in terms of intent, cannot be maintained
if they operate to ‘freeze’ the status quo of prior discriminatory employment
practices.” Griggs, 401 U.S. at 430, 91 S. Ct. 849 (emphasis added).
15
In addition, because of the district court’s own causation reasoning we must focus our inquiry
on the alleged causes of the gender disparity in both Joe’s applicant and hire pool. According to the
district court, both disparities necessarily share the same cause since it was the disparity in Joe’s
applicant pool which directly led to the disparity in Joe’s hire pool. Under the district court’s
factual findings, Joe’s public reputation as a sex discriminator caused (1) a gender disparity in Joe’s
applicant pool which, in turn, created (2) a gender disparity in Joe’s hire pool because there were
so few women who actually applied to Joe’s as a food server. Therefore, in order to understand the
causes of Joe’s hiring pool disparity, it is essential to determine the causes of Joe’s applicant pool
disparity.
29
Since Griggs, we are aware of no case in which a facially-discriminatory
practice has been challenged successfully under a disparate impact theory. Simply
put, disparate impact theory is available for the challenge of facially-neutral
employment practices. See, e.g., Lanning v. Southeastern Pennsylvania Transp.
Auth., 181 F.3d 478, 485 (3rd Cir. 1999) (finding that “plaintiffs establish a prima
facie case of disparate impact by demonstrating that application of a facially
neutral standard has resulted in a significantly discriminatory hiring pattern”)
(emphasis added). Indeed, the district court properly recognized that “[s]ex
discrimination under the theory of disparate impact occurs when a facially neutral
rule or practice of the employer has a disproportionate impact on one sex. . . . To
establish a prima facie case of disparate impact sex discrimination, the plaintiff
must show that a facially neutral practice of the employer has a disproportionate
impact on one sex.” Joe’s, 969 F. Supp. 2d at 735 (emphasis added).
The central problem in this case, however, is that the district court has
identified no facially-neutral employment practice responsible for the gender
disparity in Joe’s food server population, and we can find none. The EEOC and
the district court have identified, at most, two neutral employment practices on
which to ground a disparate impact analysis: first, Joe’s word of mouth recruiting,
and second, Joe’s “undirected and undisciplined delegation of hiring authority to
30
subordinate staff,” Joe’s Stone Crab, 969 F. Supp. at 738, resulting in its subjective
“roll call” hiring process. Disparate impact analysis fails in this case because
neither neutral practice can be causally connected to the gender disparity.
First, there is no evidence that Joe’s word of mouth recruiting method
caused any disparity between the percentage of women in the qualified labor pool
and the percentage of women actually hired by Joe’s as servers. Notably, this is
not a case where Joe’s formal recruiting practices or its informal word-of-mouth
recruiting network kept women from learning about available jobs at Joe’s.
Compare United States v. Georgia Power Co., 474 F.2d 906, 925 (5th Cir. 1973)
(finding that word-of-mouth recruiting system can operate as a “‘built-in
headwind’” isolating blacks from “web of information” relating to job openings).
Rather, the district court specifically found quite the opposite, namely that local
female food servers knew about the availability of positions at Joe’s and the
logistical details of Joe’s hiring roll calls. Indeed, it observed that although the
hiring roll calls were “rarely advertised,” they were “widely known [about]
throughout the local food server community.” Joe’s Stone Crab, 969 F. Supp. at
733. No woman testified that she failed to apply for a position at Joe’s because she
was unaware of Joe’s roll call method for filling openings. Plainly, the disparity
between the percentage of women in the qualified labor pool and the percentage of
31
women actually hired as servers by Joe’s cannot be causally linked to Joe’s word-
of-mouth recruiting process because this practice in no way prevented women from
applying to or being hired by Joe’s.
Nor is there any evidence that Joe’s facially-neutral, albeit undisciplined and
subjective, hiring practices caused the disparity the district court found between the
percentage of women in the qualified labor pool and the percentage of women
actually hired as servers by Joe’s. There is no evidence that Joe’s subjective hiring
criteria either caused women not to apply to Joe’s or caused those who applied not
to be hired. Joe’s hiring roll call decisions were made through a subjective hiring
process in which Joe’s hiring maitre d’ relied on short applicant interviews to
assess an applicant’s qualification based on a range of subjective factors, including
“appearance, attitude, articulation, and experience.” Joe’s Stone Crab, 969 F. Supp.
at 733. No witnesses testified and no evidence was presented into the record
indicating that any women failed to apply to Joe’s because its hiring criteria
included specific judgments about an applicant’s appearance, attitude, articulation,
or experience. Nor was any evidence presented showing that women who did
apply for server positions at Joe’s were disadvantaged by these specific hiring
criteria. Indeed, as we have stated previously, there is in fact no disparity between
the percentage of women who actually applied to Joe’s for server positions and the
32
percentage of women hired. Plainly, therefore, the subjective hiring criteria did not
harm women once they entered the application process.16
The district court, recognizing that it could not causally connect Joe’s
neutral, albeit subjective, recruiting and hiring practices with the disparity between
the percentage of women in the qualified labor pool and the percentage of women
actually hired as servers by Joe’s, identified Joe’s reputation as a discriminator
against women as the causal agent for the disparity. See Joe’s Stone Crab, 969 F.
Supp. at 740. For the district court, Joe’s reputation for not hiring female food
servers acted as the essential bridge connecting the neutral practices to the
statistical disparity. In other words, according to the district court’s own
reasoning, it was not Joe’s neutral recruiting or hiring practices that caused the
disparity, but rather Joe’s reputation as a discriminator against women. Because of
Joe’s reputation for discriminating, the district court essentially found, women did
not apply to Joe’s and therefore were not hired as servers.
We conclude that the district court’s use of reputation was, on the face of
this record, both problematic and inadequate for several independent reasons.
16
This case differs significantly from the paradigmatic disparate impact case in which the
plaintiffs show direct causation between an objective hiring requirement and the statistical disparity
at issue. In Griggs, for example, the plaintiffs showed that the objective and facially neutral
requirements of possessing a high school diploma and passing a general intelligence test in order
to be hired or transferred to the company’s more desirable departments had a disproportionate effect
on white and black applicants. See Griggs, 401 U.S. at 430-431, 91 S. Ct. 849.
33
First, reputation itself is neither a specific act or a practice. It is far more
amorphous. Reputation is “‘a prevalent or common belief, a general name, the
opinion of a number of persons.’” United States v. North Carolina Nat’l Bank, 336
F.2d 248, 253 (4th Cir. 1964) (quoting United States v. C.I.T. Corp., 93 F.2d 469,
471 (2nd Cir. 1937)). Reputation is the community “picture” of an individual or
corporate entity formed over a number of years. See generally Michelson v.
United States, 335 U.S. 469, 477, 69 S. Ct. 213, 93 L. Ed. 168 (1948). Reputation
has never been used, as far as we can tell, as a facially-neutral employment act or
practice for disparate impact purposes. In the intentional discrimination context,
some cases have considered reputation evidence for the limited purpose of defining
the parameters of Title VII remedial relief where intentional discrimination either
has been conceded or proven and there is evidence that an employer’s
discriminatory practices prevented qualified applicants from applying for new jobs.
See Morrow v. Crisler, 491 F.2d 1053, 1055-57 (5th Cir. 1974) (en banc)
(instructing district court on remand to consider the role of Mississippi Highway
Patrol Department’s entrenched reputation for race discrimination--a reputation
based on their historical practice of intentional race discrimination--in discouraging
black applicants when shaping remedial recruiting policies for the Department);
see also EEOC v. Rath Packing Co., 787 F.2d 318, 337 (8th Cir. 1986) (explaining
34
that reputation evidence could be considered in determining the relevant labor
market for the computation of a Title VII class backpay award given the
employer’s well-known historical practice of intentional sex discrimination) (citing
Teamsters v. United States, 431 U.S. 324, 365, 97 S. Ct. 1843, 52 L. Ed. 2d 396
(1977)). We have been pointed to no case, however, and can find none that has
treated an employer’s reputation as a discriminator as itself an act or practice for
the purposes of establishing a prima facie case under a theory of disparate impact.
Indeed, no case has ever used reputation as a bridge connecting a neutral hiring
practice to a statistical disparity in order to establish disparate impact liability
where the neutral employment practices alone did not cause the disparity.
In addition, even if reputation could somehow be used in theory as a causal
bridge, in this case there is no logical or factual connection between any facially-
neutral component of Joe’s employment practices and Joe’s reputation as a
discriminator. Nothing in this record indicates that Joe’s recruitment by “word-of-
mouth” rather than through other recruiting mechanisms such as print or television
advertising contributed in any way to Joe’s reputation for discrimination. Nor is
there any evidence that the use of appearance, articulation, attitude, and experience
as hiring criteria contributed to Joe’s reputation for discrimination. Indeed, there
is no suggestion from either party that these hiring criteria are themselves
35
somehow illegitimate or discriminatory.17 Instead, the suggestion from the EEOC
is that these criteria are simply a cover or a smokescreen and do not reflect the real
bases for Joe’s hiring decisions. Rather than hiring on the bases of appearance,
articulation, attitude and experience, the EEOC contends, Joe’s really hired servers
on the basis of sex and it is this discriminatory hiring, rather than the use of
subjective hiring criteria, that arguably led to Joe’s reputation as a discriminator.
See Appellee Brief at 30-31. But, where Joe’s neutral hiring and recruiting
practices did not cause its reputation, we think it is wholly inappropriate to use
reputation as the causal bridge connecting neutral practices to a statistical disparity
for the purposes of establishing Joe’s disparate impact liability. See Lewis v.
Tobacco Workers’ Int’l Union, 577 F.2d 1135, 1143 (4th Cir. 1978) (holding that
an employer cannot be found liable under Title VII simply because potential
minority applicants subjectively believe the company will not hire them because of
their race where this belief is not attributable to the employer’s conduct); EEOC v.
Sheet Metal Workers, Int’l Assoc., 463 F. Supp. 388, 425 (D. Md. 1978) (finding
that an employer “must itself do something to violate Title VII; it does not violate
Title VII because someone else thinks it has violated Title VII”).
17
We have made clear that employment decisions may legitimately be based on subjective
criteria as long as the criteria are capable of objective evaluation and are stated with a sufficient
degree of particularity. See Conner v. Fort Gordon Bus Co., 761 F.2d 1495, 1500 (11th Cir. 1985);
Woody v. St. Clair County Comm’n, 885 F.2d 1557, 1562-63 (11th Cir. 1989).
36
Finally, we observe that the district court expressly admitted evidence of
Joe’s reputation as a discriminator not for the truth of the matter asserted but only
to show the state of mind of the women who failed to apply for server positions at
Joe’s. According to the district court, Joe’s reputation was not entered into
evidence “as proof of conduct consistent with the reputation, as proof of Joe’s
hiring practices themselves, or as proof of bad character or intent to discriminate”
but “was admitted solely to establish the existence of the reputation.” Joe’s Stone
Crab, 969 F. Supp at 736. The district court thereby expressly refused to find any
direct causal connection between any of Joe’s neutral employment practices and its
reputation as a discriminator.
While a company may be held liable for a discriminatory reputation if there
is evidence it caused or perpetuated that reputation through some intentional
affirmative act, see Morrow, 491 F.2d at 1055-57; Rath Packing, 787 F.2d at 337,
we know of no federal circuit that has found an employer liable under Title VII on
the basis of a reputation for discrimination it did not cause. See Lewis, 577 F.2d at
1143. Nor are we prepared to impose on an employer an affirmative duty under
Title VII to ameliorate a public reputation not attributable to its own employment
conduct. See id. (observing that “[w]e do not think a failure of the company to
announce innocence is a violation of Title VII”); see also Sheet Metal Workers,
37
Int’l Assoc., 413 F. Supp. at 425. In fact, we are unaware of any case that requires
a Title VII employer to affirmatively dispel a negative public image not of its own
making or else be subject to a finding of Title VII discrimination.
That said, the record extant and some of the district court’s findings of fact
can be read to support the alternate conclusion that Joe’s management intentionally
excluded women from food serving positions in order to provide its customers with
an “Old World,” fine-dining ambience. Thus, for example, the district court found
that “Joe’s management acquiesced in and gave silent approbation to the notion
that male food servers were preferable to female food servers.” Joe’s Stone Crab,
969 F. Supp. at 731. At another point in its findings, the district court observed
that “Joe’s sought to emulate Old World traditions by creating an ambience in
which tuxedo-clad men served its distinctive menu.” Id. at 732-33. Moreover, the
district court apparently also credited the testimony of one of Joe’s former hiring
maitre d’, Roy Garrett, who explained that Joe’s was “a male server type of job” by
tradition. Id. at 732. As a result, the district court said that “women have
systematically been excluded from the most lucrative entry level position, that of
server.” Id. at 740. Finally, the district court found that this historical practice of
hiring only men was responsible for Joe’s “male-only” reputation. The district
court held that “Joe’s reputation in the community, which reflected the restaurant’s
38
historical hiring practice, led potential female applicants not to apply for server
positions. Joe’s reputation, therefore, was largely responsible for the gender skew
in the pool of applicants at the annual roll call.” Id. at 736.
But, these factual findings do not mesh easily with a disparate impact theory
because they suggest that Joe’s hiring system was not in practice facially-neutral,
but rather was facially-discriminatory on the basis of gender. They suggest the
conclusion that in fact Joe’s had a desired preference for male servers and that this
preference influenced the hiring decisions of Joe’s decisionmakers, resulting in the
deliberate and systematic exclusion of women as food servers. If this were true,
Joe’s could be found liable for intentional discrimination in violation of Title VII.
We emphasize that this is not a case like Griggs, where there was a pronounced
history of intentional discrimination followed by a facially-neutral employment
practice which perpetuates the effects of an employer’s previous discrimination.
See also Rowe v. General Motors Corp., 457 F.2d 348, 356 (5th Cir. 1972)
(holding that GM’s promotion/transfer standards “freeze” into effect the racial
disparity in salaried jobs created by the company’s prior policy of explicit
discrimination); Senter v. General Motors Corp., 532 F.2d 511, 526, 530 (6th Cir.
1976) (affirming the district court’s finding that the employer’s subjective
promotions procedures had the effect of “locking” minorities into the hourly ranks
39
and out of the supervisory ranks). The district court’s findings and the record
evidence indicate that Joe’s hiring methodology and practices have remained
relatively constant throughout the relevant time periods. Therefore, if Joe’s was
guilty of intentionally discriminating against women in hiring servers, it would be
liable for intentional discrimination throughout the entire pre-charge period since
there is absolutely no evidence that Joe’s adopted new facially-neutral hiring
requirements until, at best, the post-charge period when it implemented an
objective tray test and started to use a three-person interview panel.
Having said all this, we reiterate that nothing in this record supports a
disparate impact theory of liability. Rather, much of the district court’s findings
(as well as the credited record evidence), may be read to support the conclusion
that Joe’s employment practices in hiring servers were really permeated with an
unlawful intention to discriminate. None of the district court’s findings support the
conclusion that a facially-neutral practice or policy of Joe’s caused its reputation,
and there is not a scintilla of evidence in the record to support this notion. In short,
under the district court’s findings, it is not the formal mechanics of Joe’s roll-call
system or the criteria embedded in its subjective hiring practices, nor its formal
delegation of hiring authority to its maitre d’s which kept women from applying to
and being hired by Joe’s during the pre- and post-charge periods.
40
At bottom then, this case really centers around the theory that women
refrained from making the “futile gesture,” Teamsters, 431 U.S. at 365-366, 97
S.Ct., of applying to Joe’s when they knew that Joe’s only hired men as food
servers. If Joe’s reputation came from anything causally attributable to the
restaurant, it emanated from Joe’s own purportedly discriminatory hiring practices,
not from the specific facially neutral practices identified by the district court.
While we agree that in some situations evidence of prior historical discrimination
may provide relevant background to a contemporary disparate impact challenge,18
the facts of this case may be read to suggest something quite different; i.e. that
Joe’s hiring decisionmakers systematically excluded female applicants from
consideration, that over time this male-only preference became common
knowledge, and that eventually most potential, qualified, female applicants self-
selected out of Joe’s hiring process precisely because of its reputation for
intentional sex discrimination. Indeed, the subsidiary factual findings in this case
could be read in simple syllogistic form: first, “Old World” fine-dining meant
18
For example in Griggs the Supreme Court made clear that Title VII prohibited an employer
from using neutral hiring and promotion practices to “freeze” in place a status quo achieved through
prior decades of intentional discrimination. See Griggs, 401 U.S. at 430, 91 S.Ct. at 853. In
Castenada v. Pickard, the former Fifth Circuit explained that it is appropriate to look beyond actual
data to labor force data in order to establish disparate impact liability where the employer has used
discriminatory recruiting practices which can “skew the ethnic composition of the applicant pool.”
Id., 648 F.2d 989, 1003 (5th Cir. Unit A 1981).
41
hiring only tuxedo-clad male servers; second, Joe’s sought to emulate “Old
World” fine-dining; and finally, Joe’s therefore only hired male servers. If this is
what the district court meant to find, it is indicative of something quite different
from the theory of disparate impact. But we cannot affirm a disparate impact
judgment where the case centers entirely around allegations and evidence of
intentional discrimination. The record does not support it, and to do so would
unwisely conflate the distinct theories of disparate impact and disparate treatment.
B. Remand
We are left then with two unattractive choices on appeal: first, we can affirm
the liability judgment on an alternate theory of Title VII liability such as disparate
treatment or pattern or practice discrimination, as the EEOC suggests, or we can
remand so that the district court may reconsider its factual findings and conclusions
of law. Although the district court’s findings may be read to suggest a pattern or
practice on the part of Joe’s to intentionally discriminate on the basis of sex in its
hiring of food servers, we are not prepared to draw this conclusion in the face of
the district court’s having expressly rejected this theory; rather we think a remand
to the district court is the wiser choice.
42
We reach this conclusion for three principal reasons. First, we are deeply
troubled by and unable to easily square the fundamental inconsistency between the
district court’s express rejection of the EEOC’s intentional discrimination claim
and several of its subsidiary factual findings that Joe’s hired male servers only in
order to create an “Old World” fine dining ambience. At trial, the EEOC primarily
argued an intentional discrimination theory of liability. However, as noted, the
district court summarily rejected this theory without analysis. It unambiguously
stated in the opening paragraph of its partial final judgment order that “[b]ased on
an evaluation of the evidence, the court finds that the EEOC has not proved
intentional discrimination.” Joe’s Stone Crab, 969 F. Supp. at 730. Later, in its
conclusion of law section, the district court reiterated this conclusion observing
that “[t]he court finds that the EEOC has not met its burden of proof under
disparate treatment analysis.” Id. at 735.
Second, after carefully reading the trial transcript, we believe the district
court’s conclusion that the EEOC has not met its burden of proving intentional
discrimination may have been based on an erroneous view of Title VII case law.
When “‘a district court has failed to make a finding because of an erroneous view
of the law, the usual rule is that there should be a remand for further proceedings to
permit the trial court to make the necessary findings.’” Perryman v. Johnson
43
Products Co., Inc., 698 F.2d 1138, 1144 n.11 (11th Cir. 1983) (quoting Pullman-
Standard v. Swint, 456 U.S. 273, 291, 102 S. Ct. 1781, 72 L. Ed. 2d 66 (1982)). In
light of the district court’s seemingly unambiguous findings that “Joe’s has been a
‘male server type’ establishment for the better part of the century” and that
“women have systematically been excluded from the most lucrative entry level
position, that of server,” Joe’s Stone Crab, 969 F. Supp. at 740, we emphasize that
a finding of disparate treatment requires no more than a finding that women were
intentionally treated differently by Joe’s because of or on account of their gender.
To prove the discriminatory intent necessary for a disparate treatment or pattern or
practice claim, a plaintiff need not prove that a defendant harbored some special
“animus” or “malice” towards the protected group to which she belongs.19 In the
race discrimination context, we recently have explained that “ill will, enmity, or
hostility are not prerequisites of intentional discrimination.” Ferrill v. Parker
Group, Inc., 168 F.3d 468, 473 n.7 (11th Cir. 1999). In Ferrill, for example, we
held a defendant, who acted without racial animus but consciously and
19
Several ambiguous phrases in the district court’s opinion suggest that the district court may
have been operating under this erroneous view. For instance, in finding that Joe’s did not have an
express policy of excluding women from food server positions, the district court observed that the
evidence only proved that “management acquiesced in and gave silent approbation to the notion that
male food servers were preferable to female food servers.” Joe’s Stone Crab, 969 F. Supp. at 731.
Of course, the district court’s summary dispatch of the EEOC’s intentional discrimination claims
precludes us from knowing for certain whether it thought the EEOC had to prove that Joe’s hiring
policies emanated from some special “animus” or “malice” towards women.
44
intentionally made job assignments based on racial stereotypes, liable for
intentional discrimination. See id. The Supreme Court reached a similar
conclusion in Goodman v. Lukens Steel Co., 482 U.S. 656, 107 S. Ct. 2617, 96
L. Ed. 2d 572 (1987). In Goodman, union members sued their union under 42
U.S.C. § 1981 for intentionally failing to assert race discrimination claims against
their employer. In its analysis, the Supreme Court explained that though “there
was no suggestion [ ] that the [defendant] held any racial animus against or
denigrated blacks generally,” id. at 668, 107 S. Ct. 2625, the union still could be
held liable for racial discrimination “‘regardless of whether, as a subjective matter,
its leaders were favorably disposed toward minorities.’” Goodman, 482 U.S. at
669, 107 S. Ct. 2625 (citing Goodman v. Lukens Steel Co., 580 F. Supp. 1114,
1160 (E.D. Pa. 1984)). Based on this reasoning, we stated in Ferrill, “[t]he
Goodman Court clearly held that liability for intentional discrimination under §
1981 requires only that decisions be premised on race, not that decisions be
motivated by invidious hostility or animus.” Id., 168 F.3d at 473. While Goodman
and Ferrill both involved § 1981 claims, there is no difference in the substantive
doctrine of intentional discrimination under Title VII and § 1981.
Simply put, Title VII prohibits “the entire spectrum of disparate treatment of
men and women resulting from sex stereotypes,” Los Angeles Dept. of Water &
45
Power v. Manhart, 435 U.S. 702, 708 n. 13, 98 S. Ct. 1370, 55 L. Ed. 2d 657 (1978)
(quoting Sprogis v. United Air Lines Inc., 444 F.2d 1194, 1198 (7th Cir. 1971),
even where the stereotypes are benign or not grounded in group animus.
Therefore, if Joe’s deliberately and systematically excluded women from food
server positions based on a sexual stereotype which simply associated “fine-dining
ambience” with all-male food service, it then could be found liable under Title VII
for intentional discrimination regardless of whether it also was motivated by ill-
will or malice toward women.20
20
Perhaps the seminal case in this context is Price Waterhouse v. Hopkins, 490 U.S. 228, 109
S. Ct. 1775, 104 L. Ed. 2d 268 (1989). In Price Waterhouse, the district court found that the employer,
an accounting firm, had discriminated against Ann Hopkins by permitting stereotypical attitudes
about women (Hopkins had been found “too acerbic” in her tone for a woman) to play a role in its
decision to deny her partnership in the firm. See Hopkins v. Price Waterhouse, 618 F. Supp. 1109,
1118-19 (D.D.C.1985). On appeal, the employer contended that it could not be liable for disparate
treatment because “Hopkins did not prove ‘intentional' discrimination on the part of the
[decision-making] Board, but only ‘unconscious’ sexual stereotyping by unidentified partners who
participated in the selection process.” Hopkins v. Price Waterhouse, 825 F.2d 458, 468 (D.C.
Cir.1987), aff’g in part and rev’g in part, Hopkins, 618 F. Supp. at 1113-21. This argument was
squarely rejected by the court of appeals:
In keeping with [Title VII’s remedial] purpose, the Supreme Court
has never applied the concept of intent so as to excuse an artificial,
gender-based employment barrier simply because the employer
involved did not harbor the requisite degree of ill-will towards the
person in question. As the evidentiary framework established in
McDonnell Douglas makes clear, the requirement [ ] of
discriminatory motive in disparate treatment cases does not function
as a ‘state of mind’ element, but as a method of ensuring that only
those arbitrary or artificial employment barriers that are related to an
employee or applicant’s race, sex, religion, or national origin are
eliminated.
Id. at 468-69 (footnotes omitted). This reasoning was affirmed on appeal by a plurality opinion of
46
Moreover, in light of the district court’s findings that “Joe’s management
acquiesced in and gave silent approbation to the notion that male food servers were
preferable to female food servers,” Joe’s Stone Crab, 969 F. Supp. at 731, and that
“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,” Id. at 732, we also
emphasize that under our controlling case law, either under a disparate treatment or
a pattern or practice theory, Plaintiff need not show that hiring decisions were
made pursuant to an express policy or directive from Joe’s owners. It is enough to
show in a disparate treatment case that a particular employment decision was made
because of sex and in a pattern or practice case that employment decisions were
generally made deliberately because of sex, regardless of whether in either context
a formal or express policy of discrimination existed from the employer. See
Teamsters, 431 U.S. at 336, 97 S. Ct. 1843; Harris v. Shelby County Bd. of Educ.,
99 F.3d 1078, 1083 (11th Cir. 1996).
the Supreme Court. Price Waterhouse, 490 U.S. at 250-52, 109 S. Ct. 1775 (plurality opinion); id.
at 259, 109 S. Ct. 1775 (White, J., concurring in the judgment); id. at 261, 272, 277-78, 109 S. Ct.
1775 (O'Connor, J., concurring in the judgment); see also Hopkins v. Price Waterhouse, 920 F.2d
967, 969 (D.C.Cir.1990) (affirming district court decision after remand from Supreme Court and
noting that this portion of Hopkins, 825 F.2d at 468-69, was upheld by the Supreme Court).
Notably, the Price Waterhouse plurality explained that “[i]n the specific context of sex stereotyping,
an employer who acts on the basis of a belief that a woman cannot be aggressive, or that she must
not be, has acted on the basis of gender,” and therefore has committed intentional discrimination
under Title VII. Price Waterhouse, 490 U.S. at 249, 109 S. Ct. 1775 (emphasis added).
47
The third reason favoring remand is that almost all of the evidence of
intentional discrimination came in the form of conflicting witness testimony
subject to lengthy cross-examination. It is clear from the trial record, for example,
that several plaintiff witnesses provided testimony, which if credited by the trial
court, could support a finding of intentional discrimination. Several witnesses
testified that Joe’s management actively discouraged women from applying.
Specifically, a former telephone clerk at Joe’s, Cathy Evans, testified that she was
told by General Manager Robert Moorehead, among others, to inform women who
called about server positions that the restaurant did not hire female servers. In
addition, former take-out cook Cassandra Williams testified that she was told by
management that the restaurant only hired women to work in the take-out section,
that she was told by a waiter that Joe’s did not hire female servers, and that she
overheard Roy Garret state that no women were hired to work in the main dining
room. Finally, Barbara Mommsen testified that when she applied for a server
position in 1987, she was told by owner Joanne Bass that Joe’s did not hire female
servers. It is equally clear from the trial record that Joe’s owners and key
management personnel, including Joanne Bass and Robert Moorehead, vigorously
denied these specific allegations at trial. The district court made no specific
findings on the credibility of these witnesses, and did not specifically resolve these
48
credibility conflicts. We are not in a position on appellate review to sort through
this conflicting witness testimony in regard to Plaintiff’s intentional discrimination
claims. Under our caselaw, we allot substantial deference to the factfinder, in this
case, the district court, in reaching credibility determinations with respect to
witness testimony. See Stano, 51 F.3d at 944 (holding that we defer even beyond
clear error review to trial court findings relating to witness credibility
determinations).
Since the state of this record is replete with conflicting witness testimony
and conflicting conclusions drawn by the district court, the wisest approach, we
think, is to remand the case to the factfinder for more detailed findings on the
EEOC’s intentional discrimination claims. Only in this way, can we be assured of
reaching an outcome truly consonant with the factfinder’s view of the evidence.
We therefore abide by the general rule of law that “‘a remand is the proper course
unless the record permits only one resolution of the factual issue.’”
Cooper-Houston v. Southern Ry. Co., 37 F.3d 603, 604 (11th Cir. 1994) (quoting
Kelley v. Southern Pacific Co., 419 U.S. 318, 331-32, S.Ct. 472, 42 L. Ed. 2d 498
(1974)); see also DeMarco v. United States, 415 U.S. 449, 450, 94 S. Ct. 1185, 39
L. Ed. 2d 501 (1974) (stating that “factfinding is the basic responsibility of district
courts, rather than appellate courts”).
49
Finally, before we remand, we take a moment to explicate in more detail
settled law concerning the requirements of Title VII liability based on a finding of
intentional discrimination. There are two theories of intentional discrimination
under Title VII: disparate treatment and pattern or practice discrimination.
Disparate treatment claims require proof of discriminatory intent either through
direct or circumstantial evidence. See Harris, 99 F.3d at 1083 (observing that a
“‘plaintiff must, by either direct or circumstantial evidence, demonstrate by a
preponderance of the evidence that the employer had a discriminatory intent’” to
prove a disparate treatment claim) (quoting Batey v. Stone, 24 F.3d 1330, 1334
(11th Cir.1994)). “Direct evidence is evidence that establishes the existence of
discriminatory intent behind the employment decision without any inference or
presumption.” Standard v. A.B.E.L. Servs., Inc., 161 F.3d 1318, 1330 (11th Cir.
1998) (citing Carter v. City of Miami, 870 F.2d 578, 580-81 (11th Cir.1989).
Absent direct evidence, a plaintiff may prove intentional discrimination through
the familiar McDonnell Douglas paradigm for circumstantial evidence claims. To
establish a prima facie case of disparate treatment under this rubric, a plaintiff
“must show: (1) she is a member of a protected class; (2) she was subjected to
adverse employment action; (3) her employer treated similarly situated male
employees more favorably; and (4) she was qualified to do the job.” Maniccia v.
50
Brown, 171 F.3d 1364, 1368 (11th Cir. 1999). Once these elements are
established, a defendant has the burden of producing “legitimate,
non-discriminatory reasons for its employment action.” Holifield v. Reno, 115
F.3d 1555, 1564 (11th Cir. 1997) (citing Texas Dep’t of Community Affairs v.
Burdine, 450 U.S. 248, 101 S. Ct. 1089, 67 L. Ed. 2d 207 (1981)). If such a reason
is produced, a plaintiff then has the ultimate burden of proving the reason to be a
pretext for unlawful discrimination. See Holifield, 115 F.3d at 1565.21
In contrast, a pattern and practice claim either may be brought by the EEOC
if there is “reasonable cause to believe that any person or group of persons is
engaged in a pattern or practice” of discrimination, 42 U.S.C. § 2000e-6(a) (1994);
see also In Re Employment, 198 F.3d at 1310 n.8, or by a class of private plaintiffs
under 42 U.S.C. § 2000e, et. seq., see Cox v. American Cast Iron Pipe Co., 784
F.2d 1546, 1549 (11th Cir. 1986). In such suits, the plaintiffs must establish “‘that
[sex] discrimination was the company’s standard operating procedure.’” Cox, 784
F.2d at 1559 (quoting Teamsters, 431 U.S. at 336, 97 S. Ct. 1843); see also Franks
v. Bowman Transportation Co., 424 U.S. 747, 772, 96 S. Ct. 1251, 47 L. Ed. 2d 444
(1976). To meet this burden of proof, a plaintiff must “prove more than the mere
21
In Reeves v. Sanderson Plumbing Products, Inc., --- U.S.---, --- S.Ct.---, --- L.Ed.2d ---, 2000
WL 743663 * 9 (June 12, 2000), the Supreme Court explained that “a plaintiff’s prima facie case,
combined with sufficient evidence to find that the employer’s asserted justification is false, may
permit the trier of fact to conclude that the employer unlawfully discriminated.”
51
occurrence of isolated or accidental or sporadic discriminatory acts. It ha[s] to
establish by a preponderance of the evidence that [] discrimination [is] the
company’s standard operating procedure-- the regular rather than unusual
practice.” Teamsters, 431 U.S. at 336, 97 S. Ct. 1843 (footnote and internal
quotation marks omitted). While “pattern or practice cases are a variant of the
disparate treatment theory and thus ‘[p]roof of discriminatory motive is critical,’”
statistical evidence often is used to establish the existence of a pattern or practice.
Lujan v. Franklin County Bd. of Educ.,766 F.2d 917, 929 (6th Cir. 1985) (quoting
Teamsters, 431 U.S. at 335 n. 15, 97 S.Ct.1843). A plaintiff may establish a
pattern or practice claim “through a combination of strong statistical evidence of
disparate impact coupled with anecdotal evidence of the employer’s intent to treat
the protected class unequally.” Mozee v. American Commercial Marine Service
Co., 940 F.2d 1036, 1051 (7th Cir. 1991) We also point out that “direct evidence
of an intent to discriminate” may be used to establish a pattern or practice claim.
Lujan, 766 F.2d at 929 n.15. Finally, we observe that in determining pattern or
practice liability, the government is not required to prove that any particular
52
employee was a victim of the pattern or practice; it need only establish a prima
facie case that such a policy existed.22
Having offered these observations about Title VII law, we remand to the
sound discretion of the district court, which has labored so long and diligently, so
that it may make such factual findings and draw such conclusions of law about the
EEOC’s intentional discrimination claims as it may deem appropriate. We have
struggled mightily to avoid a remand. We know full well that much time and
expense already has been spent on this case both before the district court and on
appeal. However, in the end, we believe that the most just result is to remand to
the district court for reconsideration in light of this opinion. In this way, the
district court, which has heard all of the witness testimony firsthand, may conduct
the relevant factfinding requisite for determining liability on the EEOC’s
intentional discrimination claims.23
22
Once this pattern or practice is established, the burden of proof then shifts to the employer to
demonstrate that the government’s showing of a pattern or practice of discrimination is either
inaccurate or insignificant. If the employer fails to rebut the government’s prima facie case, the
resulting finding of a discriminatory pattern or practice may give rise to an inference that all persons
subject to the policy were its victims and are entitled to appropriate remedies. As we have explained
previously, “once a pattern and practice of discrimination is established, a rebuttable presumption
that [the] plaintiff was discriminated against because of her sex and is entitled to recovery obtains.
The employer may overcome this presumption only with clear and convincing evidence that job
decisions made when the discriminatory policy was in force were not made in pursuit of that policy.”
Cox, 784 F.2d at 1559 (citing Teamsters, 431 U.S. at 362, 97 S. Ct. 1843).
23
We stress that our remand in no way obligates the district court to hear additional evidence or
argument in the case. Of course, the district court may choose to reopen trial proceedings for a
53
III.
Accordingly, we vacate the district court’s judgment of liability as to the
EEOC’s disparate impact claims, and we remand to the district court so that it may
reconsider its factual findings and conclusions of law on the EEOC’s intentional
discrimination claims in light of this opinion. Because of our holding, we have no
occasion to reach the various issues raised on appeal regarding the propriety of the
remedies awarded by the district court.
VACATED AND REMANDED.
limited purpose or conduct further evidentiary hearings if it feels such measures are necessary for
the resolution of the case. We leave these procedural decisions to the sound discretion of the district
court.
54
HULL, Circuit Judge, specially concurring in part and dissenting in part:
After a lengthy bench trial, the district court, as the fact-finder, entered
comprehensive findings of fact and conclusions of law. EEOC v. Joe’s Stone Crab,
Inc., 969 F. Supp. 727, 730-35 (S.D. Fla. 1997). The trial evidence amply supports
all of the district court’s factual findings, and the majority does not contend otherwise.
Thus, I concur in the majority opinion to this extent.
I also agree with the majority that disparate impact liability requires a showing
that facially-neutral employment practices caused the lack of female food servers at
Joe’s. I disagree, however, with the majority’s conclusion that the district court
“identified no facially-neutral practice responsible for the gender disparity in Joe’s
food server population and we can find none.” I disagree because the district court (1)
did single out certain employment practices that are facially-neutral and (2) did not
err in finding that these practices caused the gender disparity in Joe’s food servers.
In my view, the district court’s finding of disparate impact liability should be affirmed
in full.
Alternatively, even if, as the majority concludes, the district court’s subsidiary
factual findings suggest that facially-discriminatory practices at Joe’s actually caused
the gender disparity and thus its findings support only disparate treatment liability, we
should affirm on that alternate ground. A remand for more work by this trial court is
55
unnecessary. To demonstrate why the liability phase of this protracted case should
end here, I discuss first why the district court did not err in finding disparate impact
liability, and then why the district court’s subsidiary findings are amply sufficient for
us to affirm the district court’s liability decision on the alternate ground of disparate
treatment.
I. DISPARATE IMPACT LIABILITY
It is undisputed that from 1950 to 1986, Joe’s hired all male food servers with
one exception. The district court identified facially-neutral employment practices by
Joe’s that caused this historical gender disparity in its food servers to continue in the
pre-charge period—from 1986 to 1990—and the post-charge period—from 1991 to
1995. The district court even began its conclusions of law by acknowledging that
“[t]o establish a prima facie case of disparate impact sex discrimination, the plaintiff
must show that a facially neutral practice of the employer has a disproportionate
impact on one sex.” Id. at 735 (emphasis added).1 The district court then correctly
stated that, to prove a disparate impact claim, the EEOC: (1) must show a legally
significant statistical “disparity between the proportion of women in the available
1
The district court also properly pointed out that “[t]he premise of disparate impact theory is that
some employment practices, adopted without a deliberately discriminatory motive, may be the
functional equivalent of intentional discrimination. . . . Accordingly, discriminatory intent is not the
focus under this model.” Id. at 735 (citing Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 987
(1988), and Griggs v. Duke Power Co., 401 U.S. 424 (1971)).
56
labor pool and the proportion of women hired”; (2) must “identify the specific
employment practice alleged to cause such disparity”; and (3) must “show the causal
nexus between that employment practice and the disparity.” Joe’s Stone Crab, 969
F. Supp. at 735.2
The district court also correctly applied these legal principles to its factual
findings. The majority opinion only assumes that the district court properly found that
the EEOC demonstrated the required gender disparity between the available labor pool
and Joe’s actual hires. In my view, however, the EEOC clearly proved that the
available qualified labor pool of food servers was 31.9% women.3 Joe’s Stone Crab,
2
After finding that the EEOC established a prima facie case, the district court correctly
determined (a) that the burden of production shifts to the defendant Joe’s to show that the challenged
employment practices serve a legitimate, non-discriminatory business objective, and (b) that even
if Joe’s satisfies this burden, the EEOC may still prevail by establishing that an alternative, non-
discriminatory practice would have served the defendant’s stated objective equally as well. Id. at
735-36. The district court ultimately held that even if Joe’s hiring process serves a legitimate
business objective, alternative non-discriminatory practices would have served these objectives
equally as well. Id. at 740-41. Because the parties’ and majority’s main focus in this appeal is the
sufficiency of the EEOC’s prima facie case, I do not discuss why the district court correctly found
that “the EEOC’s prima facie case stands unrebutted.” Id. at 741.
3
We review the factual determination of the available qualified labor pool for clear error. See
Kilgo v. Bowman Transp., Inc., 789 F.2d 859, 869 (11th Cir. 1986) (holding that “the district court’s
rejection of Bowman’s applicant flow data is not clearly erroneous”). This Court has emphasized
that the Supreme Court “has rejected the requirement that a prima facie case of disparate impact
must be based on an analysis of the characteristics of actual applicants.” Kilgo, 789 F.2d at 868
(citing Dothard v. Rawlinson, 433 U.S. 321, 330 (1977)); see Hazelwood Sch. Dist. v. United States,
433 U.S. 299, 308 n.13 (1977); Forehand v. Florida State Hosp., 89 F.3d 1562, 1574 (11th Cir.
1996). This Court also has reaffirmed that different types of labor statistics are relevant to determine
the available labor pool and that actual-applicant data may not adequately reflect the potential labor
pool. See In re Employment Discrimination Litig. Against the State of Al., 198 F.3d 1305, 1313
(11th Cir. 1999) (stating “even actual applicant statistics may ‘not adequately reflect the actual
57
969 F. Supp. at 737. Thus, the proven statistical disparity—between 31.9% and 0%
in the pre-charge period and 31.9% and 21.7% in the post-charge period—is legally
significant.4
Because the evidence overwhelmingly showed a legally significant gender
disparity in Joe’s food servers, the majority opinion necessarily focuses on the second
and third prongs of a prima facie disparate impact case—whether the EEOC and the
district court identified facially-neutral employment practices as causing this gender
disparity. The majority concludes they did not. I conclude they did.
potential applicant pool, since otherwise qualified people might be discouraged from applying
because of a self-recognized inability to meet the very standards challenged as being
discriminatory.’ Dothard, 433 U.S. at 330, 97 S. Ct. at 2727; see also Wards Cove, 490 U.S. at 651
n.7, 109 S. Ct. at 2122 n.7; Kilgo, 789 F.2d at 868.”). And the Supreme Court has emphasized that
the proper approach is to focus on the qualified population in the relevant labor market. See Wards
Cove Packing Co. v. Atonio, 490 U.S. 642, 650-51 (1989).
Further, the district court did not err in finding the available qualified labor pool was 31.9%
women, and not the 0 to 3% or 21.9% actual applicants as claimed by Joe’s. The district court’s
findings were amply supported by evidence (a) that 30 to 40% of the food servers at nearby Miami
restaurants were female, (b) that the 1990 census data showed the available qualified labor pool of
servers being 44.1% women, and (c) the testimony of Dr. McClave, Joe’s own expert, who had
refined this 44.1% to 31.9% to reflect only experienced food servers in the higher income brackets
of Joe’s food servers. See Kilgo at 869-70 (concluding that the “determination of the relevant labor
market in [that case was] essentially a factual inquiry”); Markey v. Tenneco Oil Co., 523 F.2d 497,
499 (5th Cir. 1981) (stating that the trial court is afforded a great deal of discretion in determining
the relevant labor market). Finally, the waiter or server work force in Dade County, Florida, was
69.6% female. Thus, this 31.9% figure was substantially less and a conservative percentage given
the overall evidence.
4
The statistical disparity between 0% and 31.9% is stark. And, even when this 31.9% figure is
compared to the 21.7% hiring statistics in the post-charge period, the “standard deviation” is
between 1.96 and 2.07, which is a legally significant disparity under the case law. See Watson, 487
U.S. at 995 n.3, 108 S. Ct. 2777; Maddox v. Claytor, 764 F.2d 1539 (11th Cir. 1985); James v.
Stockhalm Valves & Fittings Co., 559 F.2d 310, 325 n.18 (5th Cir. 1977); Rowe v. General Motors
Corp., 457 F.2d 348, 349 (5th Cir. 1972).
58
The main facially-neutral employment practice identified by the district court
was management’s lack of any hiring guidelines and policies and the resultant
“undirected and undisciplined delegation of hiring authority to subordinate staff.”5
Joe’s Stone Crab, 969 F. Supp. at 738. Within the ambit of “undirected and
undisciplined delegation of hiring authority to subordinate staff,” the district court
included these facially-neutral practices: (1) management’s lack of any written or
even oral guidelines for its staff to follow in hiring; (2) the staff’s use of mainly a
subjective interview process and “subjective intuition” for hiring its servers; (3)
management’s sitting in on the roll call process but providing no input; and (4) lack
of any managerial oversight and lack of any standardization, as exemplified by
management’s failure to raise a question when the subordinate staff filled 108
consecutive vacancies with only male servers. Id. at 738-39. The majority states that
“the subjective hiring criteria did not harm women once they entered the application
process.” I disagree because the record evidence supports the district court’s findings
5
Joe’s did not have any objective guidelines for hiring food servers but utilized only subjective
hiring practices. Thus, the EEOC claimed that Joe’s subjective hiring practices had a disparate
impact on women. The Supreme Court has expressly held that disparate impact analysis may be
applied to subjective hiring practices. See Wards Cove Packing Co. v. Atonio, 490 U.S. 642, 648,
109 S. Ct. 2115, 2120 (1989) (citing Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 108 S. Ct.
2777, 101 L. Ed. 2d 827 (1988)). The Supreme Court has stated that the delegation of hiring
decisions can constitute an employment practice under disparate impact theory. See Watson, 487
U.S. at 990-92.
59
that it did. Many qualified women attended Joe’s roll calls and were interviewed, but
were not hired.6
The district court emphasized that the subjective criteria that Joe’s hiring staff
used, and the majority focuses on,—appearance, attitude, articulation, and
experience—were not defined in any way or standardized between interviewers. Id.
at 738. For example, the district court found that the criteria of experience was not
defined by management and varied among staff interviewers based upon their
subjective beliefs about what constituted experience. The district court also found that
some of Joe’s hiring staff believed that prior single service experience—as opposed
to team service experience—is required; others did not. As a result, the district court
found that some female candidates with decades of experience were rejected by Joe’s
6
For example, Catherine Stratford testified that she moved from New Jersey to Miami Beach to
attend Joe’s “roll call” in 1990. After her move, she did not apply because her roommate told her
that Joe’s did not hire female servers. In 1991, Ms. Stratford applied at Joe’s but was not hired.
Teresa Romanello testified that she was dissuaded from applying in 1987 by Joe’s reputation for
hiring only male servers. In 1993, however, Romanello applied unsuccessfully. Carol Coyle also
testified that she heard that Joe’s did not hire women. After the EEOC charge, Coyle attended the
roll call in 1991 but was not hired. Racquel Munoz testified that she would have applied for a server
position in 1989 but did not because of Joe’s reputation for not hiring women. After the EEOC
charge, Munoz applied unsuccessfully in 1991. In addition, Barbara Mommsen testified that “it was
common knowledge that they [Joe’s] didn’t hire women at the time” and that “Joe’s had a reputation
of being one of the best restaurant jobs to get if you were a man. As far as being a woman, you need
not apply.”
The above testimony is from the liability trial. At the subsequent damages trial, these
witnesses also testified about Joe’s 1997 roll call. For example, Stratford applied unsuccessfully in
1997. Romanello went to the first day of the 1997 roll call but left. Thereafter, she went back, was
interviewed, but was not hired. The district court entered a damages order on August 12, 1998, and
awarded back pay to Stratford from 1990-95, to Coyle from 1991-95, to Romanello from 1989-96,
and to Munoz from 1989-96.
60
staff, while other males without any experience were hired. Id. at 739.7 Likewise, the
district court found that Joe’s hiring staff differed as to what restaurants are “similar”
to Joe’s for purposes of experience. Id.
The district court also observed that after the EEOC’s charge, Joe’s
management directed the daytime Maitre d’ to interview with another Maitre d’ and
subsequently used a panel of three interviewers, later changed to include a woman.
The district court found, however, that “[w]hile management’s introduction of a panel
system for interviewing may dilute the subjective views of any one evaluator, it does
not overcome management’s failure to develop uniform, gender-neutral guidelines to
ensure that all interviewers interpret criteria in the same manner and apply them
consistently.” Id. The district court summarized Joe’s hiring decisions as being left
to each interviewer’s “own subjective intuition” and the interviewers’ judgment being
“informed largely by their own experience in the restaurant’s atmosphere of all-male
service.” Id. at 738.
Another major employment practice at Joe’s, which the district court identified
as causing the gender disparity, was Joe’s use of only a “word-of-mouth” roll call
system for recruiting new servers. The district court pointed out that year after year
7
As an example, Barbara Fitzpatrick, an applicant with twenty years of serving experience, was
not thought to merit invitation to even the probationary training period, while a male applicant
without any prior experience was hired and cited by Joe’s Maitre d’s, Roy Garret and Raymond
Damiano, as being a “one in a million” server.
61
only a few women came to the roll call due to Joe’s well-known historical practice of
hiring, and using, only tuxedo-clad men as servers. The district court emphasized that
Joe’s did not advertise in the newspaper or elsewhere that it was an equal opportunity
employer or that Joe’s hired both men and women as servers. Instead, Joe’s continued
recruiting through only the “word-of-mouth” roll call on the first Tuesday in
October—just as it had done for decades.
The majority stresses that the particular date of the roll call was widely known
in the Miami Beach community, and that no woman testified that she failed to apply
because she was unaware of the roll call. However, the district court found that Joe’s
historical practice of hiring only men as servers was also well known in that
community and caused women servers to self-select out and not come to Joe’s roll
call. Joe’s own conduct caused the dearth of women applicants. The district court,
in effect, found women refrained from making the futile gesture of attending the roll
call when they knew Joe’s hired only men as servers.
Although the undisciplined delegation of hiring, subjective interview process,
and the use of a roll call are facially-neutral employment practices, the district court
also referenced “Joe’s history of being an all-male server establishment.” Id. at 739.
Excluding women as servers—even if to create a fine dining ambience of tuxedo-clad
men—is a facially-discriminatory practice, as the majority notes. However, Joe’s past
62
discriminatory hiring is part of the factual background against which the district court
analyzed whether the above facially-neutral practices caused the gender disparity to
continue. The district court’s order raised the precise question of whether “Joe’s
undirected and undisciplined delegation of hiring authority cause[d] the disparity
between the number of women hired as servers and the number of women available,
or are forces outside the hiring process --- such as a deteriorating neighborhood, low
turnover, or the heavy lifting required of servers --- to blame?” Id.8
In short, the district court considered the above facially-neutral employment
practices, not in a vacuum, but in the context of Joe’s historical discriminatory
practice of excluding women as food servers. The district court properly considered
Joe’s historical discriminatory practices, and the “males-only” reputation Joe’s created
for itself, as relevant background evidence in examining whether Joe’s facially-neutral
employment practices caused and continued the gender disparity in Joe’s food servers.
In doing so, the district court did not err because it is well settled that past
8
Joe’s contends that the fact that during the 1980s, South Beach Miami was a high-crime area
explains the low pre-charge applicant numbers. In addition, Joe’s asserts that the area began to be
revitalized at almost the same time as the EEOC commenced its investigation, thus accounting for
the increase in female applicants during the post-charge period. Joe’s also presented evidence that
its server’s job involves carrying extremely heavy trays and a “frantic” pace. Joe’s evidence was
countered at trial, however, by the facts (1) that many of Joe’s other staff members were female, (2)
that there was security at Joe’s, and (3) that Southpointe Seafood, directly across the street, had a
wait staff that was 25% female. Further, the increase in female applicants at Joe’s after 1991 did
not correspond to any change in the strenuous nature of the server position.
63
discrimination is admissible to demonstrate that facially-neutral employment practices
continue to perpetuate the effects of past discrimination.9
Against this historical backdrop, then, the district court found that
management’s continued unguided and undisciplined delegation of hiring authority,
without any written or verbal policies or guidelines, allowed Joe’s subordinate staff
(a) to recruit servers by using only its “word-of-mouth” roll call system even though
that system had proved to recruit mostly male applicants, and (b) to continue to hire
all males as food servers based on their “gut feelings” regardless of the qualified
women who did apply. In this manner, the facially-neutral practices caused the gender
disparity. The district court further described how Joe’s delegation of hiring authority
to staff without any guidelines, and the use of solely the “word-of-mouth” roll call,
actually caused the statistical disparity, as follows:
When subordinate staff filled 108 sequential vacancies with
male servers, management never raised a question nor
voiced an objection. This silence signified approbation. Jo
Ann Bass confirmed the absolute nature of this delegation
9
See Fisher v. Proctor & Gamble Mfg. Co., 613 F.2d 527, 540 n.25 (5th Cir. 1980) (citing United
Airlines, Inc. v. Evans, 431 U.S. 553 (1977), for the proposition that discriminatory acts not made
the basis of a timely charge or occurring before the statute was passed may be considered as
background evidence regarding a current practice); Jepsen v. Florida Bd. of Regents, 610 F.2d 1379,
1383 (5th Cir. 1980) (stating that evidence of pre-Act discrimination is admissible to prove that
facially neutral practices have acted to perpetuate the effects of that past discrimination); see also
Walker v. Jefferson County Home, 726 F.2d 1554, 1557 (11th Cir. 1984) (“In a disparate impact
case, the court clearly may consider evidence of prior discriminatory acts if such evidence is relevant
to show independently actionable conduct occurring within the statutory period.”).
64
when she testified: “I have nothing to do with hiring or
firing. I give an overall view as to something that I see as
glaring.” Although she always sits in on the annual roll
call, Mrs. Bass has never instructed the hiring staff how to
select servers and does not set out guiding principles.
Thus, the subordinates are left to make decisions according
to their own subjective intuition. Moreover, their judgment
of what is appropriate is informed largely by their own
experience in the restaurant’s atmosphere of all-male
service.
Id. at 738.
Additionally, the district court correctly found that Joe’s facially-neutral
recruiting and hiring practices did not address the entrenched “male-only” hiring and
“male-only” reputation Joe’s created for itself and thereby further caused the gender
disparity to continue. The district court found that, at a minimum, Joe’s needed to
advertise that it now hired both men and women as servers. Instead, Joe’s continued
reliance on the facially-neutral “word-of-mouth” roll call caused the gender disparity
in its applicant pool and, in turn, its hires, to continue. Furthermore, as to the women
who did apply, the district court found that “without additional guidance and
structuring by management, there is no assurance that female applicants who [do]
attend roll call will be treated even-handedly.” Id. at 740.
The district court’s findings are akin to those in Griggs and other cases in which
neutral employment practices have been found to perpetuate historical discrimination.
See Griggs v. Duke Power Co., 401 U.S. 424, 430 (1971) (making clear that Title VII
65
prohibited an employer from using neutral hiring and promotion practices to “freeze”
in place a status quo achieved through prior decades of intentional discrimination);
Senter v. General Motors Corp., 532 F.2d 511 (6th Cir. 1976); Rowe v. General
Motors Corp., 457 F.2d 348 (5th Cir. 1972).10 In situations where a protected group
has been historically and systematically frozen out of certain employment positions,
a purely subjective recruiting and hiring system can act to perpetuate that problem.
As in Rowe, Joe’s had a historical practice of excluding a protected group. Nor
was any direction given to Joe’s hiring staff or potential applicants that an effort was
being made to change its longstanding historical practice of excluding women as food
servers. Indeed, just the opposite occurred. Joe’s hired 108 male servers between
1986 and 1990 but no women, without management voicing an objection to its staff.
Further, the hiring staff continued to use only the “word-of-mouth” roll call for
recruiting without objection, and was given little to no guidance in terms of how to
10
In Rowe, a group of black employees challenged the promotion and transfer procedures at an
Atlanta General Motors plant on the ground that they had a disparate impact upon blacks. These
procedures depended almost entirely upon a favorable recommendation from an employee’s
immediate foreman. In making these recommendations, the foremen at the plant were given no
written instructions as to qualifications to look for in making promotion decisions, and those
qualities that were typically used were vague and subjective. Further, there was no system for
informing hourly employees, who were largely black, of promotion opportunities or the
qualifications necessary to obtain these promotions. Finally, the evidence in Rowe showed that the
plant had a long history of pre-act discrimination and that there was a significant statistical disparity
between the number of blacks promoted or transferred through the above system and the number of
whites. Because the process described above provided no protection from the expressions of
prejudice by the foremen upon whose recommendations employees relied for promotion, the court
found that the promotion process had a disparate impact upon blacks. Id. at 358-59.
66
assess even those female applicants who did apply. As a result, Joe’s staff admittedly
relied upon vague “gut feelings.” The staff themselves testified that they viewed Joe’s
as a place for male servers.11 Without guidance from their superiors, this stereotype
undoubtedly guided their “gut” feelings as to whom to hire.
Because Joe’s delegated authority over both recruiting and hiring to staff who
admittedly felt that the restaurant was a male-server type of establishment and had
historically known it to be so, Joe’s staff was content to hire only men and to use a
“word-of-mouth” roll call system which recruited mostly men. Further, the
interviewers admitted bias for male servers went unchecked by guidance from
management.12 Given the historical context, the district court did not err in finding
that management’s continued lack of any guidance to its hiring staff, the staff’s
continued use of only the “word-of-mouth” roll call, and the use of a subjective
interview process caused the gender disparity to continue in both the attendance at the
roll call, from which Joe’s hired exclusively, and in the actual hires.
11
Maitre d’ Garrett testified that Joe’s always had qualified women but hired male food servers
because it was traditionally a male-server establishment. Similarly, Anthony Arneson, the Maitre
d’ in charge of hiring beginning in 1987, testified that gender was never mentioned by Joe’s
managers or employees because of a “perception that people didn’t even think about”— “that many
fine dining establishments throughout the world have an all male staff.”
12
See Maddox v. Claytor, 764 F.2d 1539, 1549 (5th Cir. 1985) (noting that it is possible for
employers to implement guidelines for interviewing officials that would render a subjective
interviewing process “a much less practicable mechanism for discrimination” without limiting the
officials’ authority).
67
Thus, I conclude that the district court’s findings—that Joe’s specific facially-
neutral recruiting and hiring practices caused the gender disparity in its serving
staff—are not clearly erroneous.13
II. DISPARATE TREATMENT
Alternatively, even if, as the majority concludes, the district court’s subsidiary
factual findings that Joe’s systematically excluded women as food servers show that
disparate treatment analysis is more appropriate in this case than disparate impact
analysis, I would affirm the district court’s liability finding on that basis.
The majority concedes that “some of the district court’s findings of fact can be
read to support the alternate conclusion that Joe’s management intentionally excluded
women from food-serving positions in order to provide its customers with an ‘Old
World,’ fine-dining ambience.” I would go further and hold that the district court’s
factual findings actually do support disparate treatment liability. Specifically, the
district court found that Joe’s was “traditionally a male place” and was “always a
13
Further, because the EEOC has proven that the specific hiring practices of Joe’s caused the
dearth of women servers, the district court’s finding does not, as Joe’s argues, require the restaurant
to hire in accordance with population percentages or implement quotas. Rather, it merely requires
Joe’s to prevent the perpetuation of hiring practices that have an adverse impact upon women. See
Craig v. Alabama State Univ., 804 F.2d 682, 688 (11th Cir. 1986) (noting that in light of prior
discriminatory practices, “the university had an obligation under Griggs to not utilize selection
criteria that maintain the status quo of its racially imbalanced workforce”).
68
tradition . . . that it was a male server type of job,” quoting Maitre d’ Garret’s
testimony to this effect:
As I said before, we had very few female applicants over
the years. It was sort of a 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.
Joe’s Stone Crab, 969 F. Supp. at 732 (alteration by district court) (emphasis added).14
The district court also found that Joe’s excluded women as servers because “Joe’s
14
In addition to Maitre d’ Garret’s admission, Maitre d’ Arneson, who was in charge of hiring
beginning in 1987, testified that gender was never mentioned by Joe’s managers or employees
because of a “perception that people didn’t even think about” — “that many fine dining
establishments throughout the world have an all male staff.”
The district court also quoted the testimony of owner Grace Weiss who explained that she
“cannot explain the predominance of male servers but perhaps it had to do with the very heavy trays
to be carried, the ambience of the restaurant and the extremely low turnover in servers.” Id. at 732.
The district court rejected Joe’s “heavy tray” and “low turnover” explanations, and found that the
true reason Joe’s had only male servers was it excluded women to create a fine-dining ambience
with tuxedo-clad male servers. Id. The district court found the evidence established that “women
have the physical strength to carry serving trays” and that Joe’s own witnesses, including Maitre d’
Arneson and Captain Sutton, had “attested to the fact that women are capable of performing every
aspect of a food server’s job at Joe’s.” Id. The district court also found the “low turnover” rate did
not explain the absence of women food servers. Id. Even with Joe’s “low turnover,” there were still
108 new food servers hired between 1986 and 1990, but none was female.
69
sought to emulate Old World traditions by creating an ambience in which tuxedo-clad
men served its distinctive menu.” Id. at 733.15
At another point, the district court found 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. The district court further found that “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.” Id. at 732. Later in its factual findings, the
district court twice repeated its description of Joe’s hiring as “Joe’s historical practice
of not hiring [women].” Id. at 733, 734. In its conclusions of law, the court similarly
15
The court’s order quoted expert Karen McNeill’s testimony in this regard:
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 the 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 after them. I don’t think anybody thought about it.
They said, well, men did it there. It tended to be men here, too, who
had those skill sets, and so men were [sic] automatically became the
labor pool.
Id. (alterations by the district court).
70
repeated its factual finding that historically Joe’s was a male-server establishment and
systematically excluded women from the server position, as follows:
As the court detailed in its findings of fact, Joe’s has been
a “male server type” establishment for the better part of this
century. While women have predominated among Joe’s
owner/managers, as well as among the laundry, cashiering,
and take away staff, women have systematically been
excluded from the most lucrative entry level position, that
of server.
Id. at 740 (emphasis added).
At trial, Joe’s asserted that it had no women servers because it “hired from an
open applicant pool and women simply did not apply.” Id. at 733. The district court
expressly rejected Joe’s contention. Instead, the district court found that Joe’s hired
only males as servers for half a century because it wanted to emulate the “Old World”
tradition of male servers to create an ambience of “fine dining.” The court also
specifically found that Joe’s all-male serving staff and its historical hiring practices
caused its “male-only” reputation, stating:
[T]he court finds that Joe’s historical practice of not hiring
women as food servers resulted in the commensurate
reputation. This reputation caused many eligible female
food servers not to attend the annual roll call, considering
it a waste of time. This is a significant finding, for Joe’s
argued at trial that it did not discriminate against women
because it hired from an open applicant pool and women
simply did not apply. The EEOC agreed that women rarely
attended roll calls, but contended this was due to Joe’s
historical practice and resulting reputation for not hiring
71
female food servers. The court concludes that the EEOC’s
analysis is correct.16
Id. at 733.
In summary, the district court expressly found that Joe’s systematically
excluded women as food servers, and that Joe’s longstanding practice of excluding
women as servers created its well known “male-only” reputation. Thus, Joe’s “male-
only” hiring practices and “male-only” reputation caused the dearth of female
applicants at its roll call and the lack of female food servers. As the majority opinion
acknowledges, “much of the district court’s findings (as well as the credited record
evidence), may be read to support the conclusion that Joe’s employment practices in
hiring servers were really permeated with an unlawful intention to discriminate.”
Thus, as the majority opinion appears to concede, the district court’s subsidiary
factual findings are sufficient to support disparate treatment liability. As the majority
states, “a finding of disparate treatment requires no more than a finding that women
were intentionally treated differently by Joe’s because of or on account of their
gender.” Furthermore, as the majority states, “[t]o prove the discriminatory intent
16
The majority questions the district court’s use of reputation evidence, but ultimately
acknowledges that “a company may be held liable for a discriminatory reputation if there is evidence
it caused or perpetuated that reputation through some intentional affirmative act, see Morrow, 491
F.2d at 1055-57; Rath Packing, 787 F.2d at 337.” Even assuming this is correct, there was extensive
evidence presented at trial that Joe’s discriminatory hiring conduct created its “male-only”
reputation.
72
necessary for a disparate treatment . . . claim, a plaintiff need not prove that a
defendant harbored some special ‘animus’ or ‘malice’ towards the protected group to
which she belongs.” Rather, as the majority observes, “[i]f Joe’s deliberately and
systematically excluded women from food server positions based on a sexual
stereotype which simply associated ‘fine-dining ambience’ with all-male food service,
it then could be found liable under Title VII for intentional discrimination regardless
of whether it also was motivated by ill-will or malice toward women.”
The majority does not go a step further and affirm on the alternate ground of
disparate treatment, however, because it is troubled by “an inconsistency” in the
district court’s order. As the majority opinion points out, the district court never
discusses or analyzes the EEOC’s disparate treatment claim, but instead gives only the
summary legal conclusion that “the EEOC has not proved intentional discrimination”
and “has not met its burden of proof under disparate treatment analysis.” Joe’s Stone
Crab, 969 F. Supp. at 730, 735. Despite the lack of analysis or discussion, the majority
opinion finds that this two sentence summary legal conclusion creates a “fundamental
inconsistency” with the district court’s factual findings, making remand the “wiser
choice.”
I would agree were it not for the fact that the district court made such extensive
and clear factual findings about Joe’s discriminatory hiring practices. The record
73
evidence overwhelmingly supports those factual findings, and those factual findings
clearly support disparate treatment liability. More importantly, any inconsistency
created by this two-sentence legal conclusion is easily reconciled from the face of the
district court’s order itself. A close analysis of the order reveals that the district court
was under the mistaken view that the intentional discrimination necessary for
disparate treatment required either (1) an express policy or directive from Joe’s
owners to exclude women or (2) some animus, ill-will, or malice toward women.
The district court viewed Joe’s discriminatory practice as one adopted by Joe’s
as the by-product of its “fine dining” tradition and therefore not a direct intentional
act of discrimination against women. Specifically, in the district court’s view, the
hiring of men was due to a desire to emulate a “fine dining” tradition, as opposed to
an animus toward, or a written policy excluding, women. As a result, the district court
viewed Joe’s practices as causing a disparate impact on women rather than intentional
discrimination against women. Id. at 731.
But as the majority aptly states, if Joe’s “excluded women from food server
positions based on a sexual stereotype which simply associated ‘fine dining’ ambience
with only all-male food service, it then could be found liable under Title VII for
intentional discrimination regardless of whether it had such a written policy or was
motivated by ill-will or malice.” Since the district court so clearly made repeated
74
findings that this is precisely what occurred at Joe’s, I would affirm on the alternative
ground of disparate treatment thus pretermitting any need for remand. As the majority
points out, this district court “has labored . . . long and diligently” and this “remand
in no way obligates the district court to hear additional evidence or argument in the
case.” Because the majority “remand[s] to the sound discretion of the district court,”
that court may consider whether to simply strike the two sentences the majority finds
create a “fundamental inconsistency” and to then reaffirm its decision on the alternate
ground that the EEOC proved disparate treatment of women food servers at Joe’s.
Lastly, the majority opinion favors remand because “almost all of the evidence
of intentional discrimination came in the form of conflicting witness testimony subject
to lengthy cross-examination.” The majority notes that witnesses Evans, Williams,
and Mommsen testified that Joe’s management told them that Joe’s did not hire
female servers and actively discouraged women from applying, but also notes that
Joe’s management witnesses Bass and Moorehead denied doing this. The majority
observes that the district court “made no specific findings on the credibility of these
witnesses, and did not specifically resolve these credibility conflicts,” and concludes
that “we are not in a position on appellate review to sort through this conflicting
witness testimony in regard to plaintiff’s intentional discrimination claims.”
75
I disagree. This analysis ignores that the district court did make clear and
extensive factual findings that Joe’s excluded women as food servers in order to
emulate an Old World fine dining experience and then cited certain evidence and
quoted at length certain admissions in the testimony by Joe’s management witnesses
that amply supported those factual findings. The district court was not required in its
order to review and make credibility findings regarding each part of the testimony of
each witness. Nor is the district court required to detail all of the other extensive trial
evidence that supported its factual findings regarding why Joe’s had all male servers.
Instead, our job on appeal is to review the entire record evidence in the light most
favorable to the EEOC, as we must, and to determine whether that evidence amply
supports the extensive factual findings the district court did make. The record
evidence clearly does. The findings that the district court actually did make are more
than sufficient to support liability on the alternative ground of disparate treatment.
Thus, it is unnecessary to remand this case for the district court to resolve further
credibility conflicts.
For all of these reasons, I would affirm the district court’s liability decision in
this case.
76