On a practice run before opening day at a new outlet in White Marsh, Md., it was also hard to spot anyone who didn’t look like they were any more than a few years out of high school. In fact, the only person in the dining room with any appreciable gray hair was a smiling hostess named Cathy Clary, 62, a retired teacher who also happens to be the general manager’s mother.
“Honestly, I believe that people in my age bracket would prefer daytime shifts,” said Clary, who doesn’t like to drive at night, explaining why more older people don’t apply to work there.
The Equal Employment Opportunity Commission, however, disagrees — it’s sued Texas Roadhouse for age discrimination, accusing the company of intentionally bypassing applicants over age 40 in favor of “young, fun, cute, and bubbly” servers.
The case is at the heart of an EEOC strategy to target systemic discrimination, opening investigations into broader employment practices at a time when the backlog of individual complaints is growing.
But what the EEOC says is an efficient way to use its scarce resources, businesses and Republican lawmakers decry as yet another instance of government bullying.
“It’s really not appropriate for a member of Congress to try to influence the outcome of what goes on in a courtroom. But public pressure influences where they decide to spend their money.”— Texas Roadhouse consultant Lanny Davis
The Texas Roadhouse case has raged in federal court for years, with a docket now in the thousands of pages. The agency has found dozens of people over age 40 who say they think they were discriminated against, and is now in the process of discovery, demanding all kinds of hiring records and training materials from the chain’s 451 locations.
Many companies seek to settle under such pressure, but Texas Roadhouse has mounted its own vigorous defense, filing its own Freedom of Information Act requests to learn how the case was initiated and how much it has cost (the requests were denied). The company has enlisted the help of Republican lawmakers to question EEOC officials about the case. And it’s hired Levick, a noted crisis-management firm, to tell every reporter who’ll listen about how Texas Roadhouse has been persecuted. (The EEOC also hit Darden Restaurants with an age discrimination suit earlier this year, but the much larger chain has not yet waged as high-profile a campaign against it.)
"We came in a year ago to get some media coverage of what we think is a case of government gone rogue,” says Levick’s Lanny Davis, a former White House special counsel for then-President Bill Clinton. “It’s really not appropriate for a member of Congress to try to influence the outcome of what goes on in a courtroom. But public pressure influences where they decide to spend their money.”
According to Texas Roadhouse spokesman Travis Doster, those efforts have already cost the company “millions and millions” of dollars, which might eventually exceed what it would have cost to simply settle the case. The resistance reflects a growing frustration with the EEOC’s increasing focus on investigations of bias throughout a whole business, rather than individual complaints — which, to a company like Texas Roadhouse, pose a much smaller risk.
The idea of proactively focusing on a pattern of discrimination, instead of simply putting out fires as they crop up, is hardly new at the EEOC.
The agency launched a program of “systemic” investigations back in the 1970s, and its focus on them has ebbed and flowed since. But a few things happened in the late 2000s to really kick them into gear.
First, the EEOC's budget shrank substantially when adjusted for inflation, limiting the number of investigators it was able to assign to the steadily growing mountain of individual complaints. High-profile litigation over across-the-board employment practices was seen as a more efficient use of funds, and in 2006 a task force encouraged the agency to do more of it.
“We're trying to use our resources strategically, to identify the problem and fix it,” says EEOC Chairwoman Jenny Yang. "Otherwise, we can get relief for one person, but we're going to have more coming down the pipeline.” The commission doubled down on its commitment to systemic investigations with its five-year strategic plan in 2012, and the probes now compose 25 percent of all charges the agency pursues.
The EEOC didn’t disappoint, and employers have taken notice. In recent years, the agency has gone after hundreds of companies for discrimination against their employees and prospective employees. Most of the time, the cases arise when an individual complaint is filed, and the commission decides it’s worth investigating on a larger scale. But once in a while — a few cases a year — investigators go after companies based on no accusations at all.
That’s what happened in the Texas Roadhouse situation. Individuals can find it hard to know if they have been a victim of hiring discrimination, based solely on their experience, which is why the EEOC might pursue a case on the basis of statistics, anecdotal evidence, or just observations.
“It’s very unusual for a manager to say, ‘You’re too old, I’m not giving you the job,’ ” says Raechel Adams, the EEOC’s supervisory trial attorney on the Texas Roadhouse case, while declining to elaborate on how exactly that target was chosen. “More commonly, they don’t get the job, and they don’t know why."
The fact that the EEOC has these enforcement powers — and has used them aggressively, winning multi-million dollar settlements from companies ranging from Verizon to Henry’s Turkey Service — can have a strong ripple effect, since companies seeking to mitigate their exposure will go to greater lengths to ensure all of their policies and practices are demonstrably bias-free.
“We know the EEOC is starting to focus there, because companies have not had a significant percentage of minorities,” says Barry Hartstein, who co-chairs the EEO practice group at the employer-side law firm Littler Mendelson. “An employer in any industry where minorities are underrepresented is going to be a potential target."
Systemic investigations have proved increasingly irksome to employers, who feel they're impossible to guard against. And this year, they became the targets of hearings and legislation on Capitol Hill, where Sen. Lamar Alexander (R-Tenn.) took agency leaders to task for their pursuit of companies without an initial charge — and occasionally getting reversed on appeal by higher courts. He specifically called out the Texas Roadhouse case, saying the commission should instead be devoting resources to reducing its backlog of some 75,000 individual charges.
"We’re here today to find out why such an important agency with such a critical task has gotten so far afield of its mission,” Alexander said at the hearing.
And it’s not just sabre-rattling. Congress could actually curtail the EEOC’s power to pursue those systemic investigations, with a bill that would require the commission to individually approve every lawsuit involving more than one plaintiff. According to Michael Foreman, director of the civil rights appellate clinic at Penn State Law School, the threat is an attempt to chill the EEOC’s aggressive approach by introducing more red tape, and giving political appointees more control over enforcement.
"That’s clearly part of the business community’s assault. They can challenge these things in court, but they’re trying to do it in broader public opinion, and the political process,” says Foreman. “How many phone calls do you want to field from congressmen saying 'we think you’ve gone wild here?' It just causes you to think a little bit more the next time you’re doing that.”
Texas Roadhouse insists it is not discriminating. To prove it, the company invited a reporter to observe a hiring event for its new location in White Marsh back in August.
The hiring trailer had been decorated to convey a whiff of what the business is about: The rolling saddle chair that wheels guests around on their birthdays rests in one corner. The walls are covered with shiny stars, smiley faces, and peppy slogans drawn on posters (“Smiles!! :)"). A video about Texas Roadhouse culture plays on loop, featuring mostly younger servers, with older executives and managers.
The management team expected around 3,000 applications for just under 200 spots at that location.
A steady trickle of young people walked through the doors, in self-consciously formal interview clothing. They had already made it through the initial online screen, and were here to meet with a member of the management team, who ask a series of 10 questions — when they’re available, how they would react to certain situations — scoring them on each answer. A laminated sheet provides guidance on how to rate a prospect's responses, including mannerisms: Fidgeting is good, for example, as a sign of “internal energy.”
"I believe that the management team can train skill,” Clary says. "I want to make sure I’ve got 200 people who love their jobs and are passionate about what they represent.”
At no point are applicants asked their age — that’s illegal. And yet, it still seems that only young people walk through the doors. Clary thinks that might have to do with Texas Roadhouse’s reputation for servers who line dance every hour, which can be harder on 40-year-old joints, and a schedule that doesn’t lend itself to domestic life.
"People who are a little older tend to want to work that Monday through Friday daytime lunch shift, because they make decent money in not a crazy long period of time, it’s not crazy hours,” Clary says. "People know we’re dinner only, you’re not leaving till 10 or 10:30. So it’s what the business dictates."
To win its case, the EEOC will have to prove something more: That there’s an intentional strategy emanating from headquarters to dissuade the hiring of older workers. Its complaint alleges that applicants over 40 were asked whether they thought they would “fit in” with a younger crowd, or told outright that older people couldn’t keep up. Nationwide, the commission says that only 1.94 percent of Texas Roadhouse’s front-of-the-house staff is over 40, compared to 21.41 percent of similar positions nationally.
"People know we’re dinner only, you’re not leaving till 10 or 10:30. So it’s what the business dictates."— Texas Roadhouse General Manager Rob Clary
One reason to care about the disparity is that older people often need income from part-time jobs, to ease their way into retirement at a time when savings levels have dropped. Spells of unemployment can be much longer for workers over age 55, and recent research has shown that age discrimination is especially common against older women.
But Laurie McCann, senior attorney with the AARP Foundation, says it’s more about principle — and the law — than any measure of demand for food service jobs from older workers.
“Older applicants need to be treated the same,” McCann says. “So if even one worker applies and is eliminated from consideration because of their age, then that’s a problem.
The case won’t be resolved anytime soon: A trial date has been set for early 2017. If the EEOC wins, it could send a message to restaurants across the country, where youth and attractiveness are prized, that a uniformly 20-something workforce could land them in serious trouble.
As the litigation has dragged on, Texas Roadhouse has been gathering testimonials for the small percentage of its employees who are over 40, to demonstrate that older people are welcome as well. The enthusiasm of Hollie Goetzke, another one of the very few plausibly older people staffing the first day of service in White Marsh — she’s 39 —certainly suggests that plenty of people besides teenagers might want to work there.
"It didn’t make us feel old, it just made us feel special,” said Goetzke, on how the small handful of older employees felt about working with people far younger than them. Speaking in a small alcove out of the stream of activity from the tables to the kitchen and back, she seemed to revel in the level of noise around her. “I’m loud, and I knew this was a place that would fit with who I am.”