UnderCover Waitress: EEOC

Tuesday, July 31, 2012


There is some talk about whether the servers who were recently demoted to SAs en masse might have some sort of class action claim against Darden Restaurants. I am not a lawyer (just another stupid waitress ;-)) but I will try to evaluate this possibility. If anybody wishes to follow through, please contact a lawyer knowledgable of employment and labor law in your area. I am not qualified to give legal advice.

Most employees in the states these days are at-will employees. The first time an employer explained what that meant, I almost laughed in his face. Employers like to tell you that since you are an at-will employee, you are not required to give two weeks notice if you don't want to. Wow, what an awesome benefit.

At-will employees do not have contracts. They can be fired any time for any reason or no reason, as long as it is not a protected reason. Having at-will employees gives the employer freedom and robs the employee of security.


Protected reasons are the things that you may not be fired for, such as skin color. Protected reasons are enforced by the Equal Employment Opportunity Commission. 

1963: The Equal Pay Act when into effect. Men and women may not be paid different amounts of money for performing the equal work in the same workplace. We are a long way away from true equality in salaries for men and women, but that is another blog post.

1964: Title VII of the Civil Rights Act was signed into law. Workers may not be discriminated against on the basis of race, color, national origin, gender, or religion.

At some point, Title VII was amended to protect pregnant women from discrimination.

1967: The Age Discrimination Act went into effect. Persons age 40 or older may not be discriminated against; for example, you may not be fired because you are older.

1990: Title I of the Americans with Disabilities Act protects disabled workers.

1991: Among other things, Title VII and the ADA were amended to permit jury trials and compensatory and punitive damage awards in intentional discrimination cases.

All of the above rules and laws include that the person may not be discriminated against or retaliated against for complaining about discrimination. So, let's say you treat me poorly because I am female, and I complain about it. You are in trouble. If you cut my hours because I complained, you are in even more trouble.

Class Action Lawsuit

According to the Legal Information Institute at Cornell University Law School,

A class action is a procedural device that permits one or more plaintiffs to file and prosecute a lawsuit on behalf of a larger group, or "class". Put simply, the device allows courts to manage lawsuits that would otherwise be unmanageable if each class member (individuals who have suffered the same wrong at the hands of the defendant) were required to be joined in the lawsuit as a named plaintiff.

In other words, when there many plaintiffs that have suffered the same wrong, it becomes cumbersome to have each one file as a plaintiff. A few plaintiffs represent the group, or "class" in a class action lawsuit.


Darden may very well have used a personality test as a smoke screen to demote or get rid of people who were older. It is not illegal to fire your better paid workers; being paid well is not a protected reason. It is illegal to fire somebody because he is older; age over 40 is protected.

My personal opinion at this time is that if all or a large majority of Darden's older servers were told they were being given an opportunity to make dirt wages for ninety days (>cough<) then perhaps it is actionable.

They would have to prove that age was the reason for the demotion. Younger people being demoted may weaken the argument; however, it doesn't mean that older people were not targeted. For example, 45 year old Joe got demoted because of his age. 20 year old Lucy got demoted because she is ADHD. Lucy's demotion does not change the reason for Joe's demotion. (Does that make sense?)

The bottom line is the plaintiffs would have to prove age discrimination. If that is possible and how to go about it must be discussed at length with a lawyer specializing in employment law.

Disparate Impact

Sometimes there is direct evidence of discrimination. For example, let's say Martha, 52 year of age, was a server at Red Lobster and heard a manager say, "We need a more youthful atmosphere around here." Later, Martha takes a personality test and is told she gets to work as an SA for a minimum of 90 days, maybe longer. The manager's comment in this scenario is direct evidence of age discrimination.

Not all discriminatory practices are direct. Disparate impact is when an employer's policies target a minority or protected group.

Wikipedia defines disparate impact as such:

"In United States employment law, the doctrine of disparate impact holds that employment practices may be considered discriminatory and illegal if they have a disproportionate "adverse impact" on members of a minority group. Under the doctrine, a violation of Title VII of the 1964 Civil Rights Act may be proven by showing that an employment practice or policy has a disproportionately adverse effect on members of the protected class as compared with non-members of the protected class.[1]

The doctrine entails that "A facially neutral employment practice is one that does not appear to be discriminatory on its face; rather it is one that is discriminatory in its application or effect."[2] Where a disparate impact is shown, the plaintiff can prevail without the necessity of showing intentional discrimination unless the defendant employer demonstrates that the practice or policy in question has a demonstrable relationship to the requirements of the job in question.[3] This is the so-called "business necessity" defense.[1]

Disparate impact contrasts with disparate treatment. A disparate impact is unintentional, whereas a disparate treatment is an intentional decision to treat people differently based on their race or other protected characteristics." 

Maybe the new policies at Darden Restaurants ended up having a disparate impact on older servers. The second paragraph in the quote declares that the employer may be found of guilty of disparate impact discrimination even if the discrimination was unintentional. Therefore, the servers may not have to prove intent, only that the result of the personality tests and other factors was that older servers lost their jobs and pay.

I'm not a lawyer. I am not trying to give anybody false hopes; I truly know nothing more than I have written. The best way to address the issues in this blog post is to discuss them, and any other issues you may have, with an employment lawyer who represents labor.

Best of luck, I'll be watching.


  1. I'm starting to think of Darden as an evil entity, for some reason....

    1. ROFL; I love your comments.

      And don't worry about it! Just drink some more Kool-Aid...

    2. Thank You with all my heart for caring enough to do that research for us!!! I had a horrible day that I posted about on the other page, and this- that you would do this-brought tears to my eyes..I'm sure Darden has their ass covered-but it means so much just to have someone take our pain seriously..

    3. You really will now..tonight I walked in on one of the ilegals in the kitchen holding out a slightly twitching green and rotting live lobster saying "too bad to cook" and the managers on duty nodding to GET ANOTHER ONE OUT OF THE SAME TANK!!!!I do not know if they saw me or not..I wanted to throw up-they actually left others in the tank!! I'm thinking E Coli and worse!! Am I nuts or what??Please reply anyone and everyone!


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