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Restaurant Liable for Back Pay to Potential Applicants Deterred by Discriminatory Hiring Practices

The Eleventh Circuit Court of Appeals ordered back pay to two females who were deterred from applying for employment with a famous Miami Beach restaurant, Joe’s Stone Crabs, (“Joe’s”) because of the establishment’s all male staffing policy. EEOC v. Joe’s Stone Crabs Inc., 296 F.3d 1265 (11th Cir. 2002).

The case began in 1991, when the Equal Employment Opportunity Commission (“EEOC”) charged the restaurant with sex discrimination. A federal district court later held the restaurant’s well-known reputation for hiring only men from its annual applicant screening dissuaded qualified females from applying. Between 1986 and 1990, Joe’s filled 108 consecutive vacancies with men and very few women even applied. The court appointed monitors to oversee the establishment’s recruiting and hiring process and awarded damages.

The Eleventh Circuit upheld an approximately $80,000 back pay award for two of the individuals who established they would have applied for jobs in 1990, but were deterred by Joe’s discriminatory hiring practices. Although Joe’s had no express policy excluding women from employment, the court found a prevailing “men only” attitude existed.

The restaurant argued since none of the women actually applied, the EEOC failed to establish its case of sex discrimination. The court disagreed, holding the person deterred from applying must have a “justifiable belief” that applying would be a futile gesture in light of the employer’s past practices. In establishing a “justifiable belief,” the court found the two women demonstrated a “real and present interest” in obtaining the job.

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