JoAnn Bass, owner of Joe's Stone Crab, would rather fight than admit to what she believes are unfair allegations that the restaurant is guilty of discrimination for its failure to hire women for its well-compensated staff of food servers during a four-year period examined by the EEOC.
In 1998, a Miami federal court judge found that although the restaurant was not guilty of intentional discrimination, it was liable for unintentional discrimination because its "word of mouth" recruiting system coupled with a reputation for having an all male serving staff led few women to apply and resulted in statistical disparities: The percentage of women food servers between 1986 and 1990 -- zero -- was not in proportion to the percentage of female food servers in the Miami Beach workforce.
The legal battle's most recent chapter is a good news/bad news federal appeals court ruling that threatens to make things even worse for the restaurant -- while offering the restaurant industry something to celebrate. "I have mixed feelings about it," admits the 200,000-member National Restaurant Association's general counsel, Peter Kilgore.
The good news, Kilgore says, comes in the three-judge appellate panel's decision to throw out the finding of unintentional discrimination. That ruling, says Kilgore, was based on a "very contorted type of reasoning" drawn from the hearsay testimony of local waitresses who said it was common knowledge that the restaurant only hired male food servers.
The restaurant association feared that the ruling set an impossible standard for restaurant owners, holding them liable for disparities between the number of women hires and the number of women in the workforce even in the absence of any discriminatory employment practices.
The appellate court agreed, ruling that the EEOC did not meet the burden of proving that the "employment action at issue was taken because of the plaintiff's sex."
But the appellate court -- which acknowledges having struggled with what it characterized as the "paradigmatic hard case" -- now suggests that the portion of the trial judge's ruling that rejected the theory of intentional discrimination was in error as well. That rejection does not square with many of the trial judge's own findings, the appellate court observes, citing, among other portions of the ruling, the trial judge's finding that "Joe's management acquiesced in and gave silent approbation to the notion that male food servers were preferable to female food servers."
In fact, the appellate court writes, "much of the district court's findings ... may be read to support the conclusion that Joe's employment practices were really permeated with an unlawful intention to discriminate."
The court has sent the matter back to the trial court with instructions to reconsider the question of intentional discrimination, a more difficult standard for the EEOC, but a more serious accusation for Joe's.
"In a sense, it is a good opinion, Kilgore says. "On the issue that was before the court, it was quite encouraging ... but you have to balance that with what the appellate court did to Joe's, which is appalling."
Miami appellate lawyer Joel Perwin, however, who represents Joe's, sees more to like than to fear. He believes the trial judge, having rejected the idea of intentional discrimination once, is unlikely to reverse himself.
In the meantime, all of the sanctions against Joe's levied on the unintentional discrimination charge have been reversed. Those included about $154,000 in damages and back pay to four women and a requirement that the EEOC oversee all hiring at the restaurant through 2001.
On the bright side, the restaurant reopens this month for its annual seven-month season -- an event awaited so desperately by devotees each year that many will wait for hours for a table.
Name-calling: Sibling Rivalry
Back in the days when Tampa lawyers Cody Fowler and Morris White still carried a briefcase, there were things that lawyers could agree to with a handshake.
In 1969, 30 years after going into practice together in downtown Tampa, Fowler White's two founders were able to negotiate the firm's amicable divorce without so much as a piece of paper. One group of lawyers formed the Miami-based firm Fowler, White, Humkey, Burnett, Hurley & Banick -- now Fowler White Burnett Hurley Banick & Strickroot. Another group remained in Tampa as Fowler, White, Gillen, Humkey and Kinney -- now Fowler White Gillen Boggs Villareal & Banker.
The two firms practiced independently and peacefully for nearly 30 years, referring work back and forth and sharing the work of their founding partners, who kept offices in both firms until their deaths. But what a verbal agreement achieved in 1969 has come unraveled with an exchange of lawsuits, four law firms and God knows how many billable hours 31 years later.
Fowler White in Miami fired the first volley in February, accusing its 150-lawyer Tampa cousin of unlawfully shortening its name to "Fowler White" in violation of what it termed a verbal agreement reached in 1969. The suit followed the Tampa firm's application for a federal copyright for the name, which it had begun using, along with a new "FW" logo late last year.
Tampa fired back with a countersuit claiming that since the 55-lawyer Miami firm was the "junior" of the two firms, it was in violation because it also uses the shorthand nickname of "Fowler White." According to the countersuit, the Tampa firm "allowed" Miami to use the nickname for a while but that such "implied license" has since ended.
Christopher Knight, a managing partner in the Miami office, still maintains that the relationship is cordial. "It looks like this is going to work itself out," he says, refusing to elaborate. One intriguing possibility: a merger between the two firms. Knight offers nothing in the way of confirmation or denial. "I'm sure that at times the thought is 'why not?' " he says. "Both firms are doing very well."