Equal Employment Opportunity Commission v. Joe's Stone Crab, Inc.

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellee,

v.

JOE'S STONE CRAB, INC., Defendant-Appellant.

No. 98-5367.

United States Court of Appeals,

Eleventh Circuit.

Aug. 4, 2000.

Appeal from the United States District Court for the Southern District of Florida.(No. 93-01082-CIV-DTKH),
Daniel T.K. Hurley, Judge.

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 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

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

2
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. 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 servers. Upon successful completion of the program, they then become

permanent hires. See id.

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.

3
 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

"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

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.

4
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:

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 .... 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.

5
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.

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

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."

6
applicant pool. See id. at 733-34. Joe's 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

7
of the 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 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.

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.

8
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 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.

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

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.

9
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.

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 review the district court's conclusions of law de novo,

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.
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 erred in its calculation of

10
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.

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

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.
9
The features of these two intentional discrimination claims are outlined in detail in Part II, Section B.

11
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 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 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),

12
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 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

13
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).

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 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

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.
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)).

14
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.

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 Wards 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.

Id., 490 U.S., at 656-57, 109 S.Ct. 2115 (internal citation omitted) (emphasis added); see also MacPherson,

922 F.2d at 771.

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.

15
 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 Albemarle Paper Co. v. Moody, 422 U.S. 405, 449, 95 S.Ct. 2362, 45

L.Ed.2d 280 (1975) (Blackmun, J., concurring)); Furnco Construction Corp. 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). 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

16
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

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 testimony from the expert witnesses of both parties, the district

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. 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

17
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 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

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).

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.

18
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).

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. 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 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

19
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 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

20
positions and the 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. 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

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.

21
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 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 somehow illegitimate or

22
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").

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.

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).

23
 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, Int'l Assoc., 463

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 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.

24
 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 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

25
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.

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. 1843, 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 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.

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 Castaneda 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).

26
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.

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 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)).

27
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 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. at 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. at 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

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.

28
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 & 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
the Supreme Court. Price Waterhouse, 490 U.S. at 250-52, 109 S.Ct. 1775 (plurality opinion); id.
at 259, 490 U.S. 228, 109 S.Ct. 1775, 104 L.Ed.2d 268 (White, J., concurring in the judgment); id.

29
 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 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

at 261, 272, 277-78, 490 U.S. 228, 109 S.Ct. 1775, 104 L.Ed.2d 268 (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).

30
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 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, 95 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").

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

31
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. 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);

21
In Reeves v. Sanderson Plumbing Products, Inc., --- U.S. ----, 120 S.Ct. 2097, 2108-09, --- L.Ed.2d ----
(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."

32
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 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 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

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).

33
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

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.

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

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 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.

34
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 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 labor pool and the

proportion of women hired"; (2) must "identify the specific employment practice alleged to cause such

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, 108 S.Ct. 2777, 101 L.Ed.2d 827
(1988), and Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971)).

35
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, 969

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,
97 S.Ct. 2720, 53 L.Ed.2d 786 (1977)); see Hazelwood Sch. Dist. v. United States, 433 U.S. 299, 308 n. 13,
97 S.Ct. 2736, 53 L.Ed.2d 768 (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 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, 109 S.Ct. 2115, 104 L.Ed.2d 733 (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., 635 F.2d 497,

36
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.

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

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. Stockham 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).
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, 104 L.Ed.2d 733
(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, 108 S.Ct. 2777.

37
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 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 staff, while

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.

38
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 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

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.

39
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 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

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.

40
district court did not err because it is well settled that past 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 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

9
See Fisher v. Procter & Gamble Mfg. Co., 613 F.2d 527, 540 n. 25 (5th Cir.1980) (citing United Air
Lines, Inc. v. Evans, 431 U.S. 553, 97 S.Ct. 1885, 52 L.Ed.2d 571 (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.").

41
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, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971) (making 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); 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.

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.

42
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 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.

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

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 (11th 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).

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").

43
 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 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.

44
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 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

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.
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).

45
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 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 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

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.

46
"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 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."

47
 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 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 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.

48
 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."

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.

49