By Michael E. Miller
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Jo Ann Bass, Joe's president from 1984 to 1995, testified for three hours with the confidence of a woman who has schmoozed with celebrities from prize fighters to presidents. Her words were as carefully chosen as the conservative brown suede pumps, the olive-green wool suit, and the brush of color on her cheeks that highlighted her dark, deep-set eyes. Her husband, Dr. Robert Bass, watched anxiously as she related her family's 83-year history of operating Miami Beach's landmark restaurant.
Bass's testimony came at the end of a showcase trial put on by the U.S. Equal Employment Opportunity Commission (EEOC), in which the agency alleged that Joe's Stone Crab Restaurant had systematically discriminated against women -- while Bass herself was in charge of the operation. (She has since retired but still keeps her hand in the business.) This was not a jury trial; the restaurateur had to make her case to federal judge Daniel Hurley, a twenty-year jurist who repeatedly questioned her, her lawyers, and the EEOC attorneys in a cordial but deliberate manner.
By going after Joe's, whose server positions are among the highest-paying in South Florida, the EEOC was hoping to persuade other quality-dining-room managers to give women the chance to advance from low-paying positions in the periphery of the restaurant business.
But Bass insisted that women already have ample opportunity at Joe's, and she did not hide her indignation about the government's lawsuit. In an emphatic tone, she recalled her reaction to a 1991 letter from the EEOC alleging gender bias. "I was shocked at the letter," she said, her voice rising. "I looked at [a manager] and said, 'We know these are not the facts.' When I got over the shock, I was damn well outraged."
The family has always opposed discrimination, Bass insisted. The Ku Klux Klan was "rampant" when her grandfather, Joe Weiss, opened the restaurant in 1913, and he abhorred the group's racist agenda. The restaurant was picketed in the 1960s for supporting black membership in the hotel and restaurant workers union, an affiliation that would have won health insurance and other benefits for these employees. Bass personally recruited black workers, and she has tried to boost the status of her female employees. "I've always tried to move women into all kinds of positions of authority," she said, noting that today females manage the laundry, the take-out restaurant, and the cash-register department. "It was a woman-owned restaurant. I have fought discrimination all my life."
Still, she admitted that women predominated in the sought-after server positions only during World War II, when there were few men available. From the 1950s to 1991, Bass and other witnesses said, they could remember only two women working in the fast-paced dining room. Between 1986 and 1991, the restaurant hired no women at all as servers, and though it did begin hiring them in 1991 -- the year the EEOC launched its investigation -- from 1991 to 1995 only 19 of 88 newly hired servers were women, an average of just 22 percent during that period, according to the EEOC's analysis.
The paucity of women servers in the early 1990s -- not only at Joe's but also at other high-quality restaurants around the nation -- prompted the EEOC to investigate. Normally the agency opens cases only after workers file discrimination complaints, but then-EEOC commissioner Evan J. Kemp, Jr., initiated lawsuits against a half-dozen selected swank restaurants, Joe's being the only one in Florida. "If we litigate a few of them, we demonstrate to other employers that they can't discriminate," explains Susan Oxford, an assistant to the EEOC's general counsel in Washington, D.C. "We want to make sure every case we litigate has some broader purpose."
After investigating Joe's for two years, EEOC officials decided that the restaurant's efforts to improve its hiring practices were inadequate. Using employment applications, the agency identified twelve alleged victims of discrimination and then filed a class-action lawsuit in 1993.
EEOC attorneys want Judge Hurley to order Joe's to change its allegedly discriminatory recruiting practices by advertising widely for jobs and by establishing objective, measurable criteria for hiring. Hurley is expected to issue a ruling early this year on whether the restaurant violated federal laws guaranteeing equal rights to employment. If the government prevails, Joe's may also have to pay damages for the twelve or more women the government believes were victimized.
Some judges have rejected the EEOC's assertions that a failure to hire women in tony restaurants constitutes prima facie discrimination. In 1995 a Texas judge dismissed a similar suit, based on a different legal theory, concluding that the commission's attorneys had failed to show a discriminatory practice or pattern in hiring at the Mansion on Turtle Creek, a renowned restaurant in Dallas, even though no women were hired in its main dining room from 1985 to 1992.
The Texas judge particularly criticized the EEOC's labor-market expert Elvira Sisolak, who also testified in the Joe's Stone Crab case. Sisolak asserted that roughly 44 percent of the serving staff at Joe's should be female because 1990 census figures show that 44 percent of all restaurant servers living in Miami Beach were women. Joe's own expert testified that only 31 percent of the top-level serving positions should be filled with women, based on his own analysis of the census data. He looked at the number of women in server positions earning $35,000 to $49,999 a year, because Joe's most experienced waiters reported earning that much. Judge Hurley openly questioned both analyses.
The government's case, however, did not rely solely on numbers. Four witnesses, all of them women who had either been fired or who had never been hired, testified that managers, waiters, and other staff freely discussed the restaurant's policy of hiring only men in the dining room during the 1980s.
Former telephone clerk Cathy Denise Evans testified that three different managers, including Jo Ann Bass herself, told her Joe's did not hire female servers. Another manager asked Evans to segregate women's job applications. "She asked me to look through them one day and take out the female applicants, and I did," Evans testified. "And when she came in the office, she looked through them, and she was saying, 'Waitress, waitress, waitress,' and those were going in the garbage."
Cassandra Williams, a cook in the restaurant's takeout kitchen during part of 1990, testified that a waiter told her women could not serve in the dining room. She also overheard a maitre d' telling a female job applicant she would not be hired as a server. "[The applicant] said she had heard that there were two positions open," Williams related. "He said that there were two positions available but they weren't available for women."
Before the lawsuit was filed, the restaurant hired only a small number of waiters each year, and those were recruited through word-of-mouth rather than mass-market advertising, said senior EEOC trial attorney Donald Tyler -- the theory allegedly being that male waiters would tell their male friends about the openings.
The restaurant began to advertise in local papers only after the EEOC initiated its investigation. At the same time, Joe's also instituted the dreaded "tray test," during which server candidates parade in front of a panel of managers while holding a serving tray stacked with heavy ceramic plates. The EEOC charged that the test is just a pretext -- an objective standard designed to exclude women. Two of the EEOC's witnesses claimed the trays were heavier than those used in normal operations. Bass countered by saying she instituted the policy out of concern. "There was one server, whenever he went out into the dining room my heart was in my throat," she recalled. "I worried that if that tray fell, we could have a lawsuit that would end Joe's."
The tray test was the first formal hiring procedure adopted by a family business that has traditionally avoided the strictures of larger companies, Bass said. The restaurant never needed to do much employee recruiting because its reputation -- and Bass's own influence among members of the news media -- has always guaranteed a large turnout of prospective servers just before Joe's traditional season opening in October. "The press, the media, they've always come to us," she said of the coverage in the late 1980s. "A friend was at that time executive editor of the Miami Herald. Many times when Janet Chusmir wanted to do a story about women in business, she would come to us -- a success story. She would do a story about my daughter or myself.