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Jewish World Review / August 18, 1998 / 26 Menachem-Av, 5758

Cal Thomas

Big government's
crab grab

A FEDERAL JUDGE IN MIAMI has declared Joe's Stone Crab restaurant guilty of sex discrimination for not hiring an arbitrary number of female servers dictated by the Equal Employment Opportunity Commission. Four women, only one of whom formally applied for a job at the upscale, 85-year-old family-owned (and female-run) eatery, will split $154,205 in "back wages'' and benefits. The EEOC had sought more than $905,000.

Judge Daniel T.K. Hurley ruled that the women did not seek employment at Joe's because they had "heard'' the restaurant refused to hire females. Hurley said that is enough to "prove'' discrimination under EEOC regulations. He dismissed evidence of nondiscrimination that included the growth of the server staff to 22 percent female since 1992 when the EEOC targeted Joe's and sought to make an example of the place. This is government group-think: You do not have to present evidence of personal injury; the government must only conclude that an injury has occurred.

As if this were not outrageous enough, Judge Hurley appointed himself overseer of Joe's hiring practices through 2001. Not only will the court supervise hiring, Joe's must pay for the services of an industrial psychologist who will participate in training sessions "which will last a minimum of four hours'' for the purpose of sensitizing the interview panel that will receive job applications and conduct interviews. It must also pay for advertising virtually written by the court and other expenses related to carrying out the court's dictatorial mandate.

Judge Hurley declared Joe's "guilt'' based on the usual government standards that can find injuries to certain protected classes or groups without regard to whether harm to an individual has been proved. His "reasoning'' included language that three of the women "intended to apply'' for jobs at Joe's but were dissuaded because they had "heard'' of the restaurant's "reputation'' for not hiring female servers. And what is the evidence that these women are telling the truth? Judge Hurley claimed it is ``based upon the court's ability to observe the demeanor of the witnesses and to consider other criteria for judging their credibility.'' This is a practice fit for a fortuneteller, not the law.

Judge Hurley noted that following a court order last October, when Joe's instituted formal training for members of the job interview panel and began utilizing a new server evaluation form, female and male servers started wearing black and yellow campaign-style buttons that said "JOE'S STAFF, I AM GOVERNMENT APPROVED.'' The EEOC obtained some of the offending buttons and gave them to the court, which determined this was an improper exercise of First Amendment rights, an indication of "management's insensitivity to the serious issues in this case'' and evidence of "its disdain for court-ordered remedial measures.''

Disdain is precisely what the EEOC and the court deserve. As Rep. Jay Dickey (R-Ark.) noted in an Aug. 5 speech on the House floor, Joe's has been owned by the same family for 85 years and practiced diversity in its hiring practices long before the law required it. Said Dickey: "(Joe's) has been targeted and victimized by the EEOC, not because there are too few female employees ... but (because) there are too few female servers, according to the EEOC. This is in contrast to what is happening with Hooters (which) has only female servers.'' Dickey chided the EEOC for conducting "a reign of terror'' against Joe's and said he opposes a requested $18.5 million increase in the agency's budget.

EEOC violated its own regulations that state a complaint must be filed within 300 days prior to any finding of discrimination. No individual filed a complaint. This was strictly an EEOC operation.

The ruling against Joe's, which owner Jo Ann Bass says she will appeal, is another example of big government attempting to crush a small business under the federal boot. Since the judge doesn't like the buttons Joe's female and male workers have been wearing, perhaps the restaurant should try another tactic. It should put a large barrel at the door along with highlighted copies of the judge's ludicrous ruling and invite patrons to "fight big government'' by contributing to a legal defense fund. The president has one. Why not Joe's?