When we posted this headline in early February that seemed to be the defense to an EEOC systemic age discrimination lawsuit against the 500-outlet chain of steakhouses which was then in its 4th week of a jury trial in Boston, according to an article by Peter Gosselin.

“Y’all don’t think we’d do that, do ya?”

The EEOC claimed that, among other things, job applicants had their files yellow-stickered with comments such as “Old ‘N Chubby,” and “‘OLD,’ ‘little older lady,’ and ‘middle age … Doesn’t really fit our image.’”

A “Look Policy?”

“Doesn’t really fit our image” – we’ve seen that before.   Recall the Disney and Abercrombie & Fitch “look policy,” the latter adopted to make sure that every employee sport a “preppy” brand image but which was ultimately struck down.  A Muslim woman whose religion required her to wear a hijab, or head scarf, challenged the policy.

“Old ‘N Chubby”: another new ageist comment!

 

The (Mis)Trial

The company’s lawyers “sought to portray the company and its CEO-founder, W. Kent Taylor, as so folksy and plain-spoken it would be hard to imagine either committing systematic discrimination.”

The jury was presented “statistics showing that, of the almost 200,000 people Texas Roadhouse hired over the years for so-called front-of-the-house jobs, fewer than 3,000 were over 40 — a disparity so great the government’s expert witness estimated the odds of it happening absent discrimination at one in 781 billion.”

The company denied the allegations, challenged the statistics, and claimed that the EEOC had no authority to commence or maintain such systemic suits.

The EEOC “countered that the anti-discrimination language that Texas Roadhouse distributed to employees was undercut by photographs that the firm used to illustrate who fit its ‘image’ and ideal of ‘legendary service.’ Virtually all were of young people, according to the EEOC. ‘The recipe for ‘legendary service’ is this: Hire young. …”

Settled!

After a four week trial, because of a hung jury a mistrial was declared, and a retrial was scheduled for May 15, 2017.  The parties were ordered to sit down and mediate and voila!

Case settled for $12 million and a consent decree entered.

Takeaway:  The EEOC’s co-lead trial attorney said “Applicants rarely know that they have been denied a job because of their age. When the Commission uncovers such evidence, it will act aggressively and doggedly to remedy the violation.”