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Expansion of EEOC's Outback case denied

A judge rejects a move to let 150,000 women join in the lawsuit.

By SCOTT BARANCIK, Times Staff Writer
Published February 7, 2008


Federal lawyers who sued Outback Steakhouse in 2006 for allegedly discriminating against female workers have suffered a major setback.

Attorneys for the Equal Employment Opportunity Commission had hoped to bring a nationwide case against the Tampa restaurant chain. The plan, initially okayed by a magistrate judge, would have entitled more than 150,000 current or former female employees of Outback's 700-plus U.S. locations to join the suit.

But U.S. District Judge Edward Nottingham recently narrowed the potential class. Arguing that EEOC investigators had failed to give Outback adequate notice before the lawsuit of the case's national scope, the Denver judge restricted the suit's reach to a 20-store region across Colorado, Wyoming and Montana.

Mary Jo O'Neill, a regional EEOC attorney in Phoenix, admitted the agency was "disappointed." But she said Nottingham's ruling addressed a "technical" issue, not the fundamental question of whether Outback routinely discriminates against its female workers.

On that question, of course, the two sides disagree. The EEOC claims it has both statistical and anecdotal evidence of widespread bias. An expert the agency hired to examine promotion practices in Outback's "Region 47" concluded that the gender gap was "as large as any I have seen in my almost 35-year career."

Three dozen women interviewed by the agency claimed they were harassed, given inferior assignments, denied key training opportunities or passed over for promotions in favor of less-qualified men.

Outback general counsel Joe Kadow declined to comment on the case Wednesday. But in a recent court filing, lawyers for parent company OSI Restaurant Partners claimed the suit should be dismissed because the EEOC's evidence of bias falls "woefully short." Citing a statistical analysis, OSI's own hired experts concluded that the region's promotion process was gender-neutral.

The EEOC initially filed its bias suit after two Outback employees in Colorado complained of discrimination. Women from throughout Outback's 20-store region were invited to join because they shared the same regional manager, joint venture partner Tom Flanagan. About 200 past and present workers have signed on so far.

Despite the adverse ruling, EEOC attorney O'Neill said the agency hasn't necessarily given up on pursuing a national claim against Outback. One alternative would be to appeal the case after a judgment has been entered. Another simply would be to file a new suit on behalf of a new Outback plaintiff. "Absolutely, that's an option open to us," she said.

Scott Barancik can be reached at barancik@sptimes.com or (727) 893-8751.