We all support the mission of the Equal Employment Opportunity Commission. Who could be opposed to the 50-year-old organization born in the civil rights movement and dedicated to eliminating discriminatory conduct in the workplace?
But, like a number of federal agencies, the EEOC has strayed from its mission, and in doing so has hurt the very core of its anti-discrimination legacy. We know this firsthand.
In 2011, the EEOC sued Texas Roadhouse for allegedly engaging in intentional, nationwide “systemic” discrimination in the hiring of individuals 40 years or older in the “front of the house.” This lawsuit was part of the EEOC’s stated objective of searching for and bringing “systemic” – national – lawsuits. Sort of like a sledgehammer in search of a nail.
What evidence did they have to go after Texas Roadhouse? They were comparing the percentage of front-of-house employees at our restaurants who were 40 or older to the population of allegedly “similar” workers in the census pool. The EEOC’s idea of “similar” is to compare our mostly part-time employees, who are required to wear T-shirts and jeans and often are required to line dance, with broad categories of foodservice workers, like cafeteria attendants in prisons and hospitals, and even room service staff in hotels. Talk about comparing apples to airplanes!
Just focus on one fact, or should I say, the absence of one fact: The EEOC admitted in court that it started the investigation into Texas Roadhouse without a single charge from anyone 40 years or over that had applied for a job and was denied because of age. Not one single person filed a complaint with the EEOC to prompt this investigation.
If nobody complained, then what led to the lawsuit?
We wish we knew. The EEOC refuses to tell us.
The commission has accused Texas Roadhouse of using a nationwide pattern and practice of age discrimination, and yet refuses to tell us how or why this investigation began.
In court, the judge asked the EEOC why they won’t tell us how this investigation started, and they replied, “We don’t need [to] — we don’t — and don’t have to tell them, and we don’t need to tell them. And it’s irrelevant.”
Really? No evidence? No complaints? That’s no problem for the EEOC.
What’s even more stunning? Texas Roadhouse, like most companies, does not ask applicants to identify their age on its application. This means that we never even knew the ages of the applicants the EEOC claims we intentionally excluded from employment because of their age. The EEOC must assume that we are clairvoyant. To say this lawsuit defies common sense is a great understatement.
What does this mean for the broader restaurant industry? Under the EEOC’s arbitrary enforcement process, every business that does not perfectly mirror broad census hiring levels is a potential target for the EEOC’s litigation team. Remember, the agency does not require a complaint, and will not bother to tell you why it picked your business in the first place. This is a troubling prospect.
We believe that the EEOC is using Texas Roadhouse to send a message to the restaurant industry. Like everyone in the foodservice industry, we face many challenges. The last thing this industry needs is a federal agency targeting companies on the basis of the agency’s version of “statistics,” especially when the EEOC’s own top lawyer, general counsel David Lopez, acknowledged during his recent confirmation proceedings that statistical disparities between groups in certain positions can be non-discriminatory.
The EEOC’s actions are especially egregious when you consider whose interests are not being served here. The EEOC has a backlog of more than 75,000 cases where actual complaints were filed, but have not yet been addressed. These are real people, with real concerns, whom the EEOC claims it can’t assist because of its “limited resources.”
Isn’t it time the EEOC gets back to its mission of investigating and resolving actual, legitimate concerns, rather than wasting its time and resources in bringing cases where no one has even complained?
Has your restaurant faced a lawsuit by the EEOC? If so, how have you handled it? Join the conversation in the comments below.