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On Wednesday, an 11-year legal battle over allegations of sexual discrimination in the hiring of servers at famed Joe’s Stone Crab restaurant in Miami Beach, Fla., played out for the second time in two years before a federal appeals court in Miami. Lawyers for Joe’s asked a three-judge panel of the 11th U.S. Circuit Court of Appeals to overturn a lower court ruling that the landmark eatery had engaged in intentional discrimination by hiring only men for its coveted server positions between 1986 and 1991. Joel Perwin, a partner at Podhurst, Orseck, Josefsberg, Eaton, Meadow, Olin & Perwin in Miami, argued that the U.S. Equal Employment Opportunity Commission, which filed the original suit in 1991 alleging civil rights violations, failed to provide direct evidence of discrimination. He contended that the claimants who won judgments totaling more than $150,000 in 1998 provided the court with only hearsay about Joe’s hiring practices which was insufficient to justify permitting the women to bring a claim for discrimination against Joe’s. The district court found that the reason they weren’t hired was that Joe’s sought to create an “Old World” feel by having only tuxedo-clad men as servers. The women who won the judgments, he argued, never actually applied for a job at Joe’s prior to the EEOC charge of discrimination. Instead, Perwin contended, they made their case based on Joe’s reputation as a restaurant that didn’t hire female servers. “Hearsay evidence of reputation is not enough” to prove an intentional discrimination claim, Perwin argued. The Miami Beach restaurant, which has been in the Weiss family’s hands for four generations, holds an annual employment roll call. Hundreds of people apply for the lucrative waiter jobs, but just a handful of new servers are hired each year. The male-only server policy is history. Currently, 30 percent of the servers at Joe’s are women, says the restaurant’s chief operating officer Stephen Sawitz. The EEOC contends that it was only after it stepped in that Joe’s began hiring female servers. In the first go-round on the lawsuit in 1997, U.S. District Judge Daniel T.K. Hurley in West Palm Beach found that while women had been excluded by Joe’s, the discrimination was “unintentional” in that the restaurant did not have an express policy of excluding women from server positions, but management gave silent approval to the notion that male food servers were preferred. He ordered Joe’s to pay more than $150,000 in damages to four named claimants. He based the award on the money they would have earned had they been hired. He also ordered a court-appointed monitor to oversee hiring at Joe’s until 2001, at Joe’s expense. Joe’s appealed to the 11th Circuit, which in August 2000 reversed Hurley’s ruling. But the appellate panel, concerned that Hurley applied the wrong standard of discrimination, sent the case back to the lower court, suggesting that Joe’s hiring practices could have been found to be intentionally discriminatory. In March 2001, Hurley reversed his 1997 ruling and found intentional disparate treatment discrimination. He reiterated his earlier findings that Joe’s did not have a written or verbal policy against hiring women as servers. But he ruled that there was an “ethos” that female food servers were not to be hired. His new ruling came without any new arguments from either side. Perwin assailed Hurley’s second decision. “The judge took the identical judgment for the same amount of money and for the same four people and just changed the label from disparate impact to disparate treatment and added a few generalizations,” he said in an interview. Not so, said Jennifer Goldstein, an EEOC lawyer who argued for upholding Hurley’s 2001 decision in favor of the plaintiffs. “The district court made extensive findings of fact,” she said. “The ethos was not to hire women,” she told the judges, who didn’t seem swayed by her reasoning. Judge Gerald Bard Tjoflat chided Goldstein. “You don’t have any direct evidence (of discrimination),” he said. “Do you know what direct evidence is? What you are telling me is you don’t have a case.” Goldstein also argued that all four named plaintiffs had extensive experience at upscale restaurants, while some of the men who were hired had little or no restaurant experience. “I think it was appropriate for [Judge Hurley] to infer that they would have been hired,” she said. Judge Myron Bright, a senior judge from the 8th Circuit, who was sitting as a visiting judge, appeared more sympathetic to the EEOC position. “Statistics speak louder than words,” he said, noting that in the five years prior to 1991, Joe’s hired 108 male servers and no females. “I don’t see how you can say there is no evidence to support the finding,” he said during Wednesday’s hearing. Perwin told the court even if there was evidence that Joe’s discriminated, by law the plaintiffs were required to offer at least one specific example of that discrimination within 300 days of the original filing of the original EEOC complaint. Since they didn’t offer any examples within that period, the lawsuit should have been dismissed by the lower court.

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