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A federal judge has rebuffed a bid by the U.S. Equal Employment Opportunity Commission to press a pattern-and-practice claim against the owner of 350 Burger King restaurants in 13 states. The EEOC had compiled statements from 511 women who worked at the fast-food restaurants over an eight-year period, complaining that they had either been directly harassed or subject to a sexually hostile work environment. Northern District of New York Chief Judge Frederick J. Scullin Jr., who sits in Syracuse, found that 333 of the complaints made out potentially viable pattern-and-practice claims under a hostile work environment theory. But that number, when compared with the 90,835 women who worked at the Burger Kings from 1993 to 2001, was not sufficient to support a pattern-and-practice claim, Scullin ruled in Equal Employment Opportunity Commission v. Carrols Corp., 98-1772. To establish such a claim, the EEOC must demonstrate systemic, companywide discrimination, he said. A pattern-and-practice claim in a civil rights lawsuit is analogous to a class action claim in other contexts. Scullin, however, ruled that the EEOC could proceed with claims raised by individual women who had worked at the restaurants, which are owned by the Carrols Corp. The two sides sharply disagreed over the ruling’s ramifications. Michael Delikat, head of the employment law group at Orrick, Herrington & Sutcliffe, which represented Carrols Corp., said striking the pattern-and-practice claim limited the EEOC to individual claims brought within the statute of limitations and other requirements in civil rights cases. Application of those requirements, he said, would limit the number of triable claims to about 10. Elizabeth Grossman, the EEOC’s acting attorney in charge of the region covering New York state, said that while those limitations might affect cases being brought by individuals, they have no applicability to lawsuits brought by the agency. Grossman said Scullin had applied a “novel approach” in rejecting the pattern-and-practice claim, and the agency is considering an appeal. A better approach, Grossman suggested, would have been for the judge to let the pattern-and-practice claim go forward on the strength of the EEOC’s claims that women reported harassing incidents at 206 of the 350 restaurants owned by Carrols Corp. “If that’s not a pattern and practice, I don’t know what is,” she said. PRIOR CASES Delikat disagreed. Scullin’s approach, he said, is in line with that taken by other judges who have weighed EEOC pattern-and-practice claims. Those judges permitted the claims to proceed where about 25 percent of the female work force complained about harassment. Under Scullin’s analysis only .4 percent of the women who worked at Carrols-owned Burger Kings complained of harassment. The judge’s approach appropriately gauged the extent of the problem, Delikat added, noting that the EEOC complaint aggregated complaints made at 350 restaurants in 13 different states over an eight-year period. The EEOC’s claim was further weakened, Scullin wrote, because 103 of the 333 women with grievances had never complained to their supervisors. That shortcoming weakened the EEOC’s case in two respects, the judge wrote. First, the failure to take up complaints with supervisors “raises doubts about the existence and seriousness of the alleged harassment.” And, the lack of complaints weakens the EEOC’s claims that Carrols let a permissive workplace atmosphere develop because it never had an opportunity to intervene in many of the instances complained about. In any event, Scullin noted, Carrols reported having terminated 42 employees in response to 159 harassment complaints it investigated between 1990 and 2000. The company claimed that another 18 employees were suspended, two were demoted and 34 received written warnings. The EEOC was represented by staff attorneys Adela P. Santos and Sunu P. Chandy. John D. Giansello was the lead attorney at Orrick representing Carrols.

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