By LISA  JENNINGS

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PASADENA, Calif. (Nov. 16, 2009 ) —When the Tam O’Shanter Inn opened in Los Angeles in 1922, the company that later gave birth to the Lawry’s The Prime Rib and Five Crowns restaurants began a tradition of hiring women to serve food—a bold move given the role was more typically held by men at such high-end restaurants of the era.

Ironically, now seven decades later, the same concept-defining tradition snagged the Pasadena, Calif.-based multiconcept operator in a discrimination lawsuit with the U.S. Equal Employment Opportunity Commission.

Tradition, attorneys say, can sometimes get restaurant operators in trouble.

Over the past few years, chains such as The Palm, which avoided an EEOC lawsuit by instituting proactive policies, Dallas-based Razoo’s, and a Hooters franchisee in Texas have faced discrimination charges based on traditions of hiring by gender.

Though EEOC lawsuits against restaurant companies are rare for such hiring practices, attorneys say other restaurant companies with longtime traditions should take note.

Discrimination in the name of tradition is “never going to work as an argument for the EEOC,” said Anna Park, EEOC regional attorney who argued the Lawry’s case.

“It’s not enough to say this is the way we’ve always done it,” Park said. “Sometimes there are traditions or practices that are so ingrained in the company’s identity that it’s difficult to step back and say this may be wrong. But you may want to examine those traditions and practices.”

The parent company of Lawry’s The Prime Rib earlier this month agreed to pay more than $1 million to settle the lawsuit in which the EEOC alleged that the company’s tradition of hiring only women as servers was discriminatory.

For decades, the company at its four-unit Lawry’s The Prime Rib chain and one-off Tam O’Shanter and Five Crowns restaurants hired women as servers. They dressed in prim outfits with frilly aprons and hats meant to evoke the “Harvey Girls” of the early West, women hired to work in Fred Harvey restaurants that once served the region’s rail lines.

The practice also suited the Five Crowns concept, with its old-time English-country theme, as well as the Tam O’Shanter, designed to evoke a Scottish manor house. All the restaurants are known for tableside service, which at Lawry’s includes “carvers” who slice prime rib from chrome-domed carts, a role traditionally held by men.

However, the company stopped the female-servers practice in 2004, and women also can become carvers. Men now make up about 21 percent of the company’s server workforce—38 of the company’s 182 servers are men, said Rich Cope, director of marketing for Lawry’s Restaurants Inc.

“We have exceptionally low turnover, with some people who have worked for the company for 20 to 30 years,” Cope said. “Change is a slow process, and a lot of it is ahead of us.”

However, simply hiring some men wasn’t enough for the government lawyers. The settlement agreement calls for Lawry’s to send a clearer message to potential future employees—and to those who hire them—that traditions have changed.

The settlement at press time had yet to be approved by a federal district court judge in Los Angeles, but under the consent decree, Lawry’s agreed to pay $500,000 to an unknown number of men deemed to have been denied a server position between 2003 and 2006.Parks said potentially hundreds of plaintiffs may be allowed to join in the class action.

The company has agreed to devote another $225,000 toward training to ensure compliance, as well as another $300,000 for advertising the fact that men are welcome to apply for server jobs.

By LISA  JENNINGS

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The company also agreed to hire an Equal Employment Opportunity Compliance Officer, who will report directly to the chief executive, who will ensure practices and policies are in compliance, records are kept and the company maintains a hiring rate of about 37 percent to 40 percent men in server positions.

“We wanted to be sure there were things in place to change the perception that men could not apply,” Park said.

Gender discrimination is not a new issue for the restaurant industry.

According to EEOC’s preliminary statistics for fiscal 2009, there were 21 discrimination lawsuits filed against restaurant companies for hiring practices based on gender, nine of which were filed by men and 12 by women. Across all industries, there were 5,447 such cases filed in 2009.

Over the past 10 years, there were 255 gender-based discrimination lawsuits filed against restaurants in the United States. Across all industries, such complaints totaled 58,636.

David Grinberg, a spokesman for the EEOC in Washington, noted that many complaints probably go unreported because a man might not consider it discrimination when a potential employer says women usually are hired for a specific job.

“The bottom line is that the restaurant industry needs to make employment decisions based on merit and ability to do the job,” Grinberg said.

Other examples of men claiming gender discrimination include an EEOC lawsuit that was settled last year by the 11-unit Razoo’s chain. The company agreed to pay more than $1 million to settle charges that Razoo’s refused to hire or promote men as bartenders.

In 2004, the parent of the Louisville, Ky.-based Jillian’s chain also settled a similar EEOC suit, agreeing to pay $360,000 and injunctive relief and institute practices to recruit more men to the role of server.

Hooters of America Inc., based in Atlanta, the operator and franchisor of about 450 Hooters locations, also has faced charges of discrimination in private lawsuits filed by men who complained they were denied server jobs.

In the early 1990s, the EEOC investigated claims that men were discriminated against, the company says on its website, but the government never filed suit. The company said it has settled private lawsuits, however.

One recent case was reportedly settled in April. Plaintiff Nikolai Grushevski sued a Texas franchisee of Hooters because the restaurant only hired women as servers, or what the company calls “Hooters Girls.”

The restaurant chain has argued that the position was a “bona-fide occupational qualification,” a legal term for certain jobs in which gender is integral to the position. It’s OK for a retail store to decline to hire men to work in a women’s dressing room, for example.

Women also often raise the discrimination flag within the restaurant industry.

In 2003, the EEOC ended an investigation into hiring practices that favored male servers at The Palm restaurant chain after that company agreed to alter recruitment practices to bring in more women, establish a diversity program—and pay $500,000 to a class fund, avoiding the lawsuit altogether.

In 2007, the Le Parker Meridien Palm Springs hotel agreed to pay $70,000 to settle another EEOC lawsuit charging the hotel with exclusively hiring men in server positions at a high-end steakhouse there.

“In the past, a common practice among high-end restaurants has been to hire all-male waitstaff, perhaps thinking this projects a sophisticated, ‘Old World’ ambiance,” Park said of the Palm Springs hotel case. “This practice, of course, is flagrantly discriminatory and, sadly, continues in some restaurants to this day.”—ljenning@nrn.com