Cracker Barrel Settlement: Allegations of Racial Discrimination in Restaurants, Exercises of Business

Download Cracker Barrel Settlement: Allegations of Racial Discrimination in Restaurants and more Exercises Business in PDF only on Docsity! IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ROME DIVISION UNITED STATES OF AMERICA, Plaintiff, v. CRACKER BARREL OLD COUNTRY STORE, INC., Defendant. ) ) ) ) ) CIV. NO. ) ) ) ) ) ____________________________________) CONSENT ORDER INTRODUCTION 1. This Consent Order (“Order”) resolves the Complaint filed by Plaintiff United States against Defendant Cracker Barrel Old Country Store, Inc. (“Cracker Barrel” or “Defendant”), which alleges that Cracker Barrel has violated Title II of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000a et seq. 2. Defendant Cracker Barrel, a Tennessee corporation with its principal place of business in Lebanon, Tennessee, conducts business in over 40 states, including the state of Georgia. Cracker Barrel operates over 480 locations throughout the United States, each consisting of a “country style” restaurant with an attached retail store. 3. The United States’ Complaint alleges that Cracker Barrel has engaged in a pattern or practice of denying to African-American customers and potential customers, on the basis of their race or color, the use and enjoyment of the facilities, services, and accommodations of Cracker Barrel restaurants on the same basis as they make such available to non-African-American persons. More specifically, the United States alleges that, on account of race or color, Cracker Barrel has segregated customers by race; allowed white servers employed by Cracker Barrel to refuse to wait on African-American customers; seated or served white customers before seating or serving similarly situated African-American customers; and treated African Americans who complained about the quality of Cracker Barrel’s food or service less favorably than white customers with similar complaints. The United States further alleges that in many cases, Cracker Barrel managers directed, participated in, or condoned the discriminatory conduct described above. 4. Defendant Cracker Barrel denies every allegation in the United States’ Complaint. Further, Cracker Barrel contends that it has, for a number of years, had policies and procedures in place prohibiting discrimination against its customers. Cracker Barrel asserts that, in the event any employee engaged in discriminatory conduct toward a customer, such conduct is and has always been a violation of Cracker Barrel policies and procedures, and was neither condoned nor tolerated by the Company. 5. The parties have agreed that, in order to avoid protracted and costly litigation, this controversy should be resolved voluntarily. Accordingly, the parties have consented to the entry of this Consent Order by the Court. Entry of this Order does not constitute an admission of wrongdoing by Cracker Barrel, nor do the parties intend for it to be interpreted as such. 2 2. Cracker Barrel’s operations affect interstate commerce within the meaning of 42 U.S.C. §§ 2000a(c)(1), (c)(2), (c)(4); and 3. This Court has personal jurisdiction over Defendant and jurisdiction over this action pursuant to 42 U.S.C. §2000a-6 and 28 U.S.C. §1345. 19. All provisions of this Order shall apply to Defendant, its officers, employees, agents, assigns, successors in interest in the ownership and/or operation of Cracker Barrel Old Country Store stores, and anyone acting in whole or in part under the direction of any of them. GENERAL INJUNCTION 20. Cracker Barrel is hereby enjoined from violating Title II of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000a, et seq., in any manner, including, but not limited to: denying or providing inferior service or food to any person because of race or color; engaging in or allowing seating or service assignments on the basis of race or color; discouraging, or allowing any employee to discourage, any person from enjoying food or service because of race or color; treating customer complaints differently on the basis of race or color; or retaliating against any officer, employee or agent for opposing or reporting alleged violations of Title II or this Order. COMPLIANCE PROVISIONS General Compliance – Summary of Provisions 21. Cracker Barrel will implement the plan described below to ensure its compliance with Title II. The plan detailed below includes: 5 1. adoption, implementation, and publication of revised nondiscriminatory policies and procedures; 2. enhanced and expanded training for Cracker Barrel managers and operations employees concerning their obligations under Title II and this Order; 3. development and implementation of an improved system for investigating, responding to, and tracking complaints of alleged customer discrimination based on race or color; 4. testing of Cracker Barrel locations to ensure compliance with Title II; and 5. hiring of an Auditor. Nondiscriminatory Policies and Procedures REVISION OF CUSTOMER SERVICE PROCEDURES 22. Within thirty (30) days of the effective date of this Order, Cracker Barrel will adopt the nondiscrimination policy statement attached hereto as Appendix A. 23. Cracker Barrel, in consultation with the Auditor, may revise or modify its customer nondiscrimination policy statements (or summaries, explanations or managerial guidance regarding those policy statements) during the term of this Order provided these revisions or modifications are consistent with the nondiscrimination provisions of this Order. Cracker Barrel shall submit to the United States all proposed revisions or modifications before implementation. If the United States does not object within twenty (20) days of receipt of the proposed written policies, Cracker Barrel may implement those policies. If the United States does object, the parties shall use the Dispute Resolution Procedure. 6 24. Within 30 days of the effective date of this Order, Cracker Barrel will communicate the nondiscrimination policy adopted pursuant to paragraph 22 to its operations employees: 1. by posting the nondiscrimination policy statement in the employee break rooms of its restaurants, along with a telephone number that can be used to report possible incidents of customer discrimination; 2. by including the full nondiscrimination policy statement in the Employee Handbook and any updates thereto provided, or made available, to employees after that date; and 3. by including the full nondiscrimination policy statement in all PAR Materials provided, or made available, to operations employees after that date. NOTICE TO THE PUBLIC 25. Within thirty (30) days of the effective date of this Order, Cracker Barrel will post one sign in the vestibule (the entryway between the outer and inner doors) of each restaurant and/or store that is clearly visible to all customers entering and leaving, indicating that all customers are welcome, without regard to race or color, to enjoy Cracker Barrel food and service in each of its restaurants and/or stores. Such sign shall include a statement that any person who believes that Cracker Barrel has not lived up to that promise may call the company’s toll-free number, 1-800-333-9566, or e-mail Cracker Barrel at www.crackerbarrel.com, the “Drop Us A Line” page. (The full text of this sign is hereinafter referred to as “the nondiscrimination statement.”) This sign and its placement shall be approved by the United States prior to its posting. Cracker Barrel 7 have the ability to contact, via telephone or e-mail, a third-party trainer to ask questions about investigating allegations of discrimination. 31. Cracker Barrel will fund the Investigation Department through a line item in its budget in a manner that will provide sufficient staff, funds, and resources to perform the functions required by this Order. 32. The head of the Investigation Department shall: (1) report directly to Cracker Barrel’s President and other senior management as appropriate; (2) review and provide input into all customer nondiscrimination policies and procedures and changes thereto; (3) review and provide input into all customer nondiscrimination training and changes thereto; (4) develop, in consultation with the Auditor, a policies and procedures manual for investigations of complaints potentially alleging customer discrimination based on race or color. Cracker Barrel and the Auditor shall keep the United States apprised of all stages in the development of this policies and procedures manual, and, if requested by the United States, shall provide copies of drafts of the proposed manual. In addition, Cracker Barrel shall provide a copy of the final version of this policies and procedures manual to the United States immediately after its completion. Other staff shall include dedicated investigators charged with investigating allegations of, or allegations that suggest, customer discrimination based on race or color. Investigation Department staff shall be evaluated based on their competency in following the policies and procedures for investigations. FILING A COMPLAINT 10 33. Cracker Barrel shall accept complaints potentially relating to alleged customer discrimination in person or by telephone, mail, e-mail, or facsimile transmission. Anonymous complaints will be accepted. 34. Cracker Barrel will make the investigation manual available for inspection by employees both at its headquarters and at each Cracker Barrel location. 35. Beginning fifteen (15) days after the effective date of this Order, whenever a complaint potentially involving customer discrimination is received in the Cracker Barrel corporate offices, Cracker Barrel will send a letter to the complainant notifying him or her that the complaint was received and providing a summary of the complaint investigation and determination process. This summary shall be reviewed and approved by the United States before it is used, and, if an Auditor has been selected by that time, the summary also shall be reviewed by the Auditor. 36. Cracker Barrel shall make available the complaint form appended as Appendix B at Cracker Barrel headquarters and at all stores. However, complainants shall not be required to file a complaint "form" to initiate an investigation. All complainants shall be requested to provide all information available to them that would assist Cracker Barrel in identifying the employee(s) involved and the incident(s) giving rise to the complaint, including the reason(s), if any, the customer suspects race or color may have motivated the incident. Cracker Barrel shall establish procedures for conducting follow-up inquiries when additional information is necessary to determine whether or not a complaint potentially involves alleged customer discrimination on the basis of race or color. Also, 11 Cracker Barrel shall modify its website by adding the word “complaint” to the line above the text box of its contact page (labeled “Drop Us a Line”) that invites customers to make a request, suggestion or question. 37. All Cracker Barrel employees shall accept complaints potentially relating to alleged customer race or color discrimination from both alleged victims and individuals other than the alleged victim of misconduct (third-party complaints). Any Cracker Barrel employee receiving such a complaint shall record all available information on the complaint form and refer it to the Investigation Department within 24 hours. There shall be no discretion by any Cracker Barrel employee to not accept a complaint. 38. Cracker Barrel shall require employees to report observed or suspected customer discrimination based on race or color by employees, as well as any complaints of alleged customer discrimination based on race or color discrimination made to that employee (including complaints against that same employee). Such potential misconduct shall be reported to a Cracker Barrel manager, to Cracker Barrel’s Investigation Department, or to the Auditor. Any Cracker Barrel manager receiving such a complaint shall record all available information on the complaint form and refer it to the Investigation Department within 24 hours. Cracker Barrel managers may attempt to address the concerns of customers who make complaints potentially relating to alleged discrimination based on race or color. Whether or not the manager is successful at addressing the concerns of such a customer, the manager shall obtain all relevant information relating to the alleged discriminatory conduct from the customer and report such information, for each 12 provide additional information, and third-party complaints to determine whether the complaint is corroborated. 44. For each complaint involving or suspected to involve alleged customer discrimination based on race or color, the Investigation Department shall interview all involved employees, all employee witnesses, and all managers on duty at the time of the alleged incident, and shall attempt to interview all complainant(s), individuals in the complainant's party, and other persons identified from witness interviews. Interviews of complainants or witnesses may be conducted by telephone, and if complainants or witnesses are unavailable to be interviewed during business hours, investigators from Cracker Barrel’s Investigation Department shall offer to interview them at alternate times, including during reasonable weekend or after business hours. If complainants request to be interviewed in person, investigators shall make reasonable efforts to accommodate such requests. If it is not practicable for an Investigations Department investigator to conduct an in-person interview requested by a complainant, investigators may instead direct a Cracker Barrel manager to conduct the in-person interview; in such cases, investigators shall supply the manager with a list of questions to be asked in the interview. Cracker Barrel’s Investigation Department shall not close an investigation without rendering a disposition solely because the complainant is unavailable to make a statement. 45. Investigators from Cracker Barrel’s Investigation Department shall not conduct group interviews unless a complainant or witness requests to be interviewed with someone else 15 present. Cracker Barrel employees shall be required to give an oral or written statement to representatives of Cracker Barrel’s Investigation Department, and the Investigation Department shall not accept a written statement from any employee in lieu of an interview. If an employee no longer works for Cracker Barrel, the Investigation Department will use its best efforts to locate and interview that individual. 46. Cracker Barrel’s Investigation Department investigators shall have the authority to question all interviewees and to challenge their version of the facts. 47. Managers on duty at the time of incidents that result in an investigation of allegations of customer discrimination based on race or color shall be required to cooperate with investigators, to collect all relevant information and to describe in detail their handling of the situation during and after the alleged incident and their observations of the complainant and involved employees or managers. If a manager receives a complaint involving or suspected to involve alleged customer discrimination based on race or color, the manager shall preserve all records that might pertain to that complaint, including credit card, seating, staffing and ordering records, to the extent such records exist. 48. To ensure thorough interviews of employees who are the subject of complaints regarding alleged customer discrimination, Cracker Barrel’s Investigation Department investigators shall obtain, at a minimum, the following information regarding the accused employee(s): prior complaints, performance evaluations, assignment history at other stores, and all customer service-related training/qualification records. Cracker Barrel shall provide investigators with access to the relevant portion of the involved employee’s personnel 16 files and/or relevant computerized databases containing such information. 49. Cracker Barrel’s Investigation Department shall collect all relevant records, including those provided or authorized by the customer (e.g., credit card records), in order to gather information as soon as possible after receiving a complaint of misconduct, where the information on hand is insufficient to conduct a complete investigation of the complaint. Investigators shall not require complainants or other witnesses to provide evidence that Cracker Barrel itself can obtain. 50. At the conclusion of each investigation, Cracker Barrel’s Investigation Department shall issue a final report describing the alleged customer discrimination based on race or color, any other misconduct identified during the course of the investigation, a summary of all evidence gathered during the investigation (including an explanation for the absence of any evidence), the basis for all credibility determinations, its findings with respect to all potential misconduct, the involved employee’s complaint history, and the analysis supporting its findings. The final report shall be made a part of the investigation file. 51. Neither Cracker Barrel nor any of its employees or agents shall retaliate against or harass any employee (including employees acting on behalf of Cracker Barrel's Investigation Department) who in good faith reports, investigates, or opposes alleged customer discrimination based on race or color. Employee complaints of retaliation or harassment for reporting, investigating, or opposing alleged customer discrimination based on race or color or pressure from fellow employees or managers to engage in any form of customer discrimination based on race or color shall be handled using the same procedures 17 involved; (b) the name, race, and/or gender of all complainants and involved employees; (c) contact information for all relevant employees and complainants; (d) a textual description of the allegations; (e) significant dates; (f) a description of the investigation made, including scanned images or summaries of the statements made by all persons interviewed; (g) any manager-initiated efforts to resolve the complaint; and (h) the disposition of the complaint. 58. Cracker Barrel’s Investigation Department shall issue to the Auditor and relevant Regional Vice President quarterly statistical reports of all complaints and investigations of suspected customer discrimination based on race or color received by Cracker Barrel, broken down by region and store. Such reports shall include each investigation's significant dates, general allegations, disposition, and any resulting discipline. 59. The physical investigation files shall be maintained for at least five years from the date of the disposition of the complaint. All information in the database related to a particular Cracker Barrel employee investigated for customer race discrimination shall be maintained during that employee’s employment with Cracker Barrel and for three (3) years after the employee leaves Cracker Barrel. 60. Cracker Barrel shall require appropriate investigation training for all operations employees responsible for conducting the investigations described in paragraphs 43 - 55, including Investigation Department investigators and any managers who undertake such investigations, within thirty (30) days of the implementation of the Cracker Barrel Investigation Department. This training shall be provided by a third-party vendor 20 selected by Cracker Barrel with the review of the Auditor and the approval of the United States, which approval shall not unreasonably be withheld. All newly-hired operations employees who may be conducting such investigations will receive similar training within 30 days of their hire date. This training shall include, but not be limited to: training on the proper investigation of complaints of customer discrimination based on race or color, including how to identify suspected discrimination based on race or color and what questions to ask of complainants, employees, and other potential witnesses; proper techniques for gathering information and questioning individuals; the investigation manual described in paragraphs 29 and 32 and each of the investigative components described in paragraphs 43 - 55; and training on record-keeping and reporting requirements. 61. Cracker Barrel will provide the Investigation Department with routine access to all copies of customer complaints logged on its Guest Relations Department computer database which are related to seating or service issues, whether or not these complaints allege customer discrimination based on race or color. The Investigation Department shall review these complaints to determine whether Cracker Barrel has appropriately categorized any complaints which potentially involve alleged customer discrimination based on race or color, conducted the appropriate follow-up inquiry to determine whether the complaints involved alleged customer discrimination based on race or color, or otherwise complied with the provisions of this Order. The Investigation Department may, in its discretion, request all documents related to a complaint, which shall be 21 provided promptly by any and all responsible employees. The Auditor, at his or her discretion, may review the investigation of these complaints and proffer recommendations to the Investigation Department. In addition, the Auditor shall, on request, be permitted to inspect and/or receive copies of records of seating and service complaints and employee counseling reports concerning those complaints that are kept at Cracker Barrel stores. Auditor 62. In order to ensure equal access to Cracker Barrel restaurants for all persons on a nondiscriminatory basis, an Auditor shall be selected within seventy-five (75) days from the effective date of the Order. The purpose of the Auditor is to ensure that this Order is implemented effectively and to audit Cracker Barrel's compliance with this Order. SELECTION OF THE AUDITOR 63. The Auditor shall be acceptable to both parties and shall be wholly independent of Cracker Barrel and the United States. The Auditor must have, at a minimum, the following qualifications: (a) substantial experience in the areas of civil rights enforcement or civil rights monitoring, specifically in the areas of race and ethnicity; and (b) demonstrated familiarity with management and supervisory issues in large organizations. Familiarity with civil rights testing is a highly desirable but not mandatory requirement. 64. Within fifteen (15) days after the entry of this Order, Cracker Barrel shall identify and propose an Auditor to counsel for the United States. Cracker Barrel shall provide to the 22 and practices; (h) providing information to the United States concerning Cracker Barrel’s compliance with all aspects of this Order as needed or requested; and (i) any other actions necessary to effectuate the provisions of this Order and not inconsistent with the scope of the Auditor’s duties as set forth herein. 67. Cracker Barrel shall cooperate with the Auditor in all requests that the Auditor in good faith deems appropriate to the successful completion of his or her duties as outlined in this Order. During the term of this Order, the Auditor shall have unrestricted access to and, upon request made to Cracker Barrel, receive copies of any documents and databases relating to the implementation of this Order. For the purposes of this Order, Cracker Barrel shall not assert against the United States, the Auditor, the Training Provider, or the Testing Contractor any privilege (including but not limited to the attorney-client and attorney work-product privileges) regarding (a) any statements, reports, summaries, recommendations, documents and/or other information and materials created or collected in the course of investigating customer discrimination complaints and as described in paragraphs 29 - 61 of this Order, even if one or more attorneys employed by Cracker Barrel are involved in the investigation and/or resolution of such complaints; or (b) any database containing information regarding customer discrimination complaints. In addition, no documents, information, or materials created, developed, modified, or collected in the course of implementing or enforcing this Order shall be subject to any privilege asserted against the United States, the Auditor, the Training Provider, or the Testing Contractor solely because one or more attorneys 25 employed by Cracker Barrel are involved in the creation, development, modification, or collection of those materials. If Cracker Barrel claims a privilege for any documents falling within a request for documents made by the Auditor or the United States, Cracker Barrel shall provide a privilege log to the Auditor and the United States within five business days which identifies the document and the type of privilege claimed. If the United States or the Auditor disputes the claim of privilege, the parties shall attempt to resolve it using the Dispute Resolution Procedure described in paragraphs 101 - 104. 68. The Auditor may contact and interview Cracker Barrel employees as required by this Order or as the Auditor deems necessary or appropriate. The Auditor shall, with 72 hours prior written notice to Cracker Barrel, have access to all necessary staff and facilities to audit Cracker Barrel’s compliance with the terms of this Order. 69. The Auditor and the United States may at any time consult regarding Cracker Barrel’s compliance with this Order. The Auditor may choose to have those conversations confidentially. 70. In the event the Auditor determines that there is reasonable cause to believe that an act of customer discrimination based on race or color has occurred in violation of Title II or this Order, he or she shall first notify Cracker Barrel within ten (10) days of such determination and provide all relevant documents upon request. Cracker Barrel shall be afforded thirty (30) days to resolve the Auditor’s concerns unless the Auditor believes the facts and circumstances require immediate action, in which case the Auditor need not afford Cracker Barrel the 30 days. If after 30 days, the matter is not resolved to the 26 Auditor’s satisfaction, he or she shall report the matter to counsel for the United States in writing within ten (10) days and provide all relevant documents upon request. If the matter is resolved to the Auditor’s satisfaction, he or she shall nevertheless report the matter to the United States in writing within ten (10) days and provide all relevant documents upon request. Once the matter has been referred to the United States, the parties and the Auditor shall attempt to resolve it using the Dispute Resolution Procedures described in paragraphs 101 - 104. Neither this Section nor any provision of this Order shall permit the Auditor to challenge Cracker Barrel’s decisions to litigate or to settle actual or threatened litigation, or the monetary terms of such settlements, arising out of any customer discrimination claim. However, no Cracker Barrel settlement of any actual or threatened customer discrimination litigation shall contain any provisions that would limit the plaintiffs’, complainants’ or witnesses’ right or ability to provide information regarding the underlying facts relating to such litigation. 71. In the event the Auditor believes that Cracker Barrel has not appropriately addressed any of the Auditor's concerns regarding any aspect of compliance explicitly referenced in this Order, the Auditor shall first notify Cracker Barrel in writing within five (5) days of such determination. If, after five (5) days, the matter is not resolved to the Auditor’s satisfaction, he or she shall immediately report the matter to counsel for the United States in writing and provide all relevant documents upon request. If the matter is resolved to the Auditor’s satisfaction, he or she shall nevertheless report the matter to the United States in writing within ten (10) days and provide all relevant documents upon request. 27 customer service setting, and experience in training managers and employees concerning such issues. 80. If the United States objects, which objection shall not be unreasonably made, the parties shall confer and endeavor to resolve those objections or find an alternative Training Provider acceptable to both parties. If the parties are unable to reach agreement on a Training Provider within sixty (60) days of the hiring of an Auditor, each party shall submit the names of two Training Providers meeting the criteria described above, along with resumes or curricula vitae and cost proposals, to the Court and the Court shall appoint the Training Provider from among the names submitted. The Court may consider the Auditor’s views on the Training Provider in making its decision. 81. The Training Provider shall provide Cracker Barrel and the Auditor with a detailed written description of the proposed training. This description shall include provisions to effectuate the training requirements of this section, and shall describe the proposed content of the training as well as information about where, when, by whom, and to whom the training will be provided. Cracker Barrel shall bear all costs and fees associated with the requirements of this section, and the Auditor shall be consulted in the creation of such training. 82. The Auditor may personally observe all training provided to employees except the annual training provided at Cracker Barrel’s management retreat (paragraph 83), at which both audience and presenters will be videotaped and the videotapes provided to the Auditor for review. 30 EMPLOYEE TRAINING PROGRAM 83. Cracker Barrel shall require all managers except Associate Managers and Senior Associate Managers to attend in person a managers’ training workshop on nondiscrimination in the provision of public accommodations in or around September 2004 and annually thereafter during the life of this Order. The managers’ training workshop, which shall last not less than two hours in 2004 and not less than sixty (60) minutes each successive year of this order, shall spend that time discussing managers’ duties and obligations under Title II and this Order and shall cover at a minimum the following: (a) instruction on the requirements of all applicable federal public accommodations laws (including but not limited to Title II and 42 U.S.C. § 1981); (b) a review of Cracker Barrel’s customer nondiscrimination policy statement; (c) notification that Cracker Barrel cannot and will not reprimand, penalize, or otherwise retaliate in any way against any employee who in good faith opposes or reports alleged customer discrimination based on race or color; (d) instruction regarding procedures designed to ensure that neither race nor color enters into the process of making decisions concerning the treatment and/or service of customers; (e) instruction regarding requirements of reporting customer complaints internally, including specific instruction on eliciting information from customers to determine appropriately whether a complaint “involves or is suspected to involve alleged discrimination based on race or color;” (f) a discussion of the business advantages of serving all persons on a nondiscriminatory basis; (g) instruction on managers’ responsibilities to ensure that employees under their supervision 31 are complying with the public accommodations laws and this Order; (h) training in racial sensitivity, via role playing, to situations that might be indicators of discriminatory treatment; (i) training in dealing with customer complaints made in the store; (j) instruction that STARS and “Pleasing People” apply equally to all customers; and (k) a question and answer session for the purpose of reviewing each of the foregoing areas. Within ninety (90) days of each year’s managers’ training workshop, all Associate Managers and Senior Associate Managers shall review a videotape of the most recent managers’ training workshop and engage in an in-person question-and-answer session concerning the same with their District Manager. In addition, all managers will view the videotape or complete the e-learning module described in paragraph 84 annually during the term of this Order. 84. Cracker Barrel shall require all operations employees who are not managers to take a non-managers’ training workshop within sixty (60) days of the retention of the Auditor. Such operations employees may attend such training in person, may view a videotape of such training or may complete an e-learning module covering the same material. The non-managers’ training workshop, which shall last no less than forty-five (45) minutes (or shall take at least forty-five (45) minutes to complete, if it is an e-learning module), shall spend that time discussing operations employees’ duties and obligations under Title II, 42 U.S.C. §1981, and this Order and shall include the minimum requirements described in parts (a)-(e) and (j) of the preceding paragraph. In addition, the videotape or e-learning module should include scenarios involving customer discrimination and offer 32 90. Cracker Barrel shall require appropriate training to cover diversity issues and the proper handling of customer complaints potentially involving alleged customer discrimination for all headquarters or regional operations employees with responsibility for receiving customer complaints within thirty (30) days of the retention of the third-party trainer selected by Cracker Barrel in consultation with the Auditor and the United States. In addition, all newly-hired headquarters and regional operations employees who have responsibility for receiving customer complaints will receive similar training within 30 days of their hire date. For purposes of this paragraph, operations employees with responsibility for receiving customer complaints shall include, but not be limited to, employees who answer calls to the company’s toll-free Guest Relations number and employees who process written customer complaints, including complaints sent by regular mail, facsimile, or e-mail. This training shall include, but not be limited to, training on the proper intake of customer complaints, including how to identify suspected race discrimination, what questions to ask of complainants and other witnesses, and how to respond when race discrimination is alleged; training on how to code complaints of suspected discrimination; and record-keeping and reporting requirements. 91. All Investigation Department employees and employees covered by the preceding paragraph shall be required to complete a written or e-learning test to assess their knowledge of Cracker Barrel's customer discrimination policy. At the beginning of any training required by paragraphs 60 and/or 90, each such employee shall complete a pre- assessment test to help identify gaps in the employee's knowledge of Cracker Barrel's 35 policy. Trainers shall review these pre-assessment tests and ensure that the training program addresses those gaps. At the completion of each training required by this Order, each such employee shall complete a post-assessment test. The post-assessment test shall be corrected at the training and the employee shall be immediately re-trained on any questions that were not answered correctly. The pre- and post-assessment tests shall be developed in consultation with the Auditor. 92. Cracker Barrel shall require each manager or operations employee who completes training pursuant to this Order to complete a tracking log entry. The log shall include the employee's name, the employee's position, the date of the training, the subject matter of the training, and the employee's signature. A copy of all tracking logs shall be maintained at Cracker Barrel headquarters for the duration of the Order. Testing 93. Cracker Barrel, in consultation with the Auditor and the United States, shall develop and implement a testing program to audit and monitor Cracker Barrel’s compliance with federal public accommodations laws and this Order. The testing program will require 250 tests of Cracker Barrel stores in the first year of this Order. In the second year, this testing program will require 200 tests. In the third year, this testing program will require 170 tests, unless the Auditor, in consultation with the Testing Contractor and the parties, determines that: (1) Cracker Barrel has responded appropriately to the results produced by the testing program; and (2) the testing program has not revealed any new or continuing trends or patterns of customer discrimination. If the Auditor determines both 36 conditions are met, and the Testing Contractor and parties agree, the number of tests in the third year may decrease to 150. In the fourth year, the Auditor, in consultation with the Testing Contractor and the parties, shall set the level of testing at an appropriate level between zero and 125 tests, based upon consideration of the two factors set forth above. In the fifth year of the decree, if any, the Auditor, in consultation with the Testing Contractor and the parties, shall set the level of testing at an appropriate level between zero and 100 tests. However, if the total number of Cracker Barrel stores increases to more than 600 in any year during the term of this Order, then the maximum number of tests permitted will increase in that and following years to a number that is 20 percent higher than the numbers for those years cited in this paragraph. In addition, the testing program shall also include at least 50 telephone tests of Cracker Barrel's complaint line each year for the duration of this Order to monitor compliance with this Order. Cracker Barrel shall bear all costs, fees, and expenses associated with the development and implementation of this testing program. 94. The test procedures shall be developed, and the tests conducted, by an independent company or organization (“Testing Contractor”) that has expertise in conducting paired testing for potential civil rights violations, including public accommodations, and is wholly independent of Cracker Barrel. The United States shall fully disclose all dealings between the Testing Contractor and the Civil Rights Division of the Justice Department. SELECTION OF TESTING CONTRACTOR 95. Cracker Barrel, in consultation with the Auditor and the United States, shall enter into a 37 Order, including performing its own testing at its own expense at any time and at any Cracker Barrel location. DISPUTE RESOLUTION PROCEDURE 101. Subject to the provisions of paragraphs 67, 70 and 71, if differences arise between any of the parties and/or the Auditor regarding Cracker Barrel’s compliance with, interpretation of, or implementation of the terms of this Order, the parties shall endeavor to resolve such differences among themselves before seeking the intervention of the Court. 102. The party believing there is a dispute shall make a good faith attempt to confer by telephone with the other party and the Auditor to ascertain whether there is in fact a dispute, and to attempt to resolve that dispute through informal means. If either party believes that a dispute still remains after that oral conference, or if the party has been unable to confer by phone following good faith attempts, the party raising the issue shall notify the other party in writing of the issue in dispute, and the facts and circumstances relied upon in asserting its position. 103. The parties shall wait at least thirty (30) days after the written notification of a dispute before bringing such dispute to the Court, unless the party bringing such dispute to the Court believes that the facts and circumstances require immediate Court action. 104. In the event of a failure by Cracker Barrel to perform in a timely manner any act required by this Order or otherwise to act in conformance with any provision thereof, and if the Dispute Resolution Procedures are unsuccessful, the United States may move this Court to impose any remedy authorized by law or equity. 40 NOTICES 105. For purposes of this Order, all notices and communications addressed to the United States shall be delivered by United States mail to: U.S. Department of Justice, Civil Rights Division, Chief – Housing and Civil Enforcement Section, 950 Pennsylvania Ave., NW , Washington, DC 20530, with the note: “Attention: DJ 167-19-205.” Such notices and communications shall also be delivered by fax to the United States, Chief – Housing and Civil Enforcement Section, at fax number 202-514-1116. All notices and other communications addressed to Cracker Barrel under this Order shall be in writing and delivered by United States mail to Cracker Barrel Old Country Store, Inc., P.O. Box 787, Hartmann Drive, Lebanon, TN 37088, for the attention of Michael Zylstra, General Counsel, and by fax at fax number (615) 443-9107. The parties may from time to time change their addresses and/or telephone numbers for the purposes of this section by providing written notice of such changes to the other parties. REPORTING, RECORDKEEPING AND ACCESS 106. Ninety (90) days following entry of this Order and every three (3) months for the remainder of the first year of this Order, and thereafter every six (6) months until this Order is terminated, Cracker Barrel shall provide the Auditor, with a copy to the United States, a status report delineating all steps taken during the reporting period to comply with each provision of this Order. 107. The Auditor shall provide to the parties written reports, on a periodic basis, detailing Cracker Barrel’s compliance with and implementation of each provision of this Order. 41 During the first year of this Order, the Auditor shall issue a report on a quarterly basis. During the second year and for the remainder of the Order, the Auditor shall issue such reports every six months. In preparing such reports, the Auditor shall include a review and analysis of, inter alia, the following information: 1. The results of, and responses to, all testing completed during the preceding period; 2. Statistical information on the number and types of customer complaints involving allegations of discrimination based on race or color during the time period, as well as on any other customer complaints which the Auditor has reviewed, the timeliness of the investigations, the disposition, and any remedial measures, including changes in procedures, remedial training, counseling and/or discipline; and 3. Discipline, remedial training, mandatory counseling, and terminations actually imposed as a result of each complaint. 108. During the term of this Order, Cracker Barrel and the Auditor shall maintain all documents and/or records (including electronic, video, audio, and/or computerized documents and/or records as well as written and/or printed documents and/or records) that are created, generated, or received that pertain to the subject matter or the implementation of this Order, including any documents provided to Cracker Barrel or the Auditor by the other entity or by a non-party to this case. 109. For the duration of this Order, the United States shall have full access to all non- 42 the forum in which such a request is made, provided that Cracker Barrel provides appropriate notice to the requestor. It is so ORDERED this _____ day of ______, 2004. ___________________________ United States District Judge 45 The parties consent to the entry of this Order as indicated by the signatures of counsel below: For the plaintiff United States: WILLIAM S. DUFFEY, JR. United States Attorney ______________________ By: AMY L. BERNE (Ga. Bar No. 006670) LAURA S. KENNEDY Assistant United States Attorneys 75 Spring Street, SW Room 600 Atlanta, GA 30303 (404) 581-6261 (404) 581-6150 (fax) JOHN ASHCROFT Attorney General _______________________ R. ALEXANDER ACOSTA Assistant Attorney General Civil Rights Division _________________________ STEVEN H. ROSENBAUM Chief Housing and Civil Enforcement Section Civil Rights Division _________________________ DONNA M. MURHPY Deputy Chief Housing and Civil Enforcement Section __________________________ DEBORAH A GITIN ALLEN W. LEVY NANCY F. LANGWORTHY Trial Attorneys Housing and Civil Enforcement Section Civil Rights Division U.S. Department of Justice 950 Pennsylvania Ave., NW Washington, DC 20530 (202) 305-2020 (202) 514-1116 (fax) 46 For the defendant Cracker Barrel Old Country Store, Inc.: Cracker Barrel Old Country Store, Inc. ________________________________ By: MICHAEL J. ZYLSTRA Vice President, General Counsel And Corporate Secretary P.O. Box 787 Hartmann Drive Lebanon, TN 37088 (615) 444-5533 (615) 443-9279 Ashe, Rafuse & Hill, LLP ________________________________ By: LAWRENCE R. ASHE, JR. Georgia Bar No. 024500 NANCY E. RAFUSE Georgia Bar No. 621717 DAVID E. GEVERTZ Georgia Bar No. 292430 1355 Peachtree Street, N.E. Suite 500 Atlanta, Georgia 30309-3232 (404) 253-6000 (404) 253-6060 (fax) 47 Nature of your complaint: __ Were you upset about (check one or more): (a) The manner or place in which you were seated? ___________ (b) The quality of your food? ____________ c) The manner in which you were served, or the time it took to serve you? ___________ (d) Your interaction with a Manager?___________ (e) Your bill? ___________ __ Why do you think you had this disappointing experience? __________________________________________________________________ __________________________________________________________________ __________________________________________________________________ Please take a moment to help us understand more about your complaint by completing the applicable portions: If you had a complaint about SEATING: 1. Please describe the general nature of the complaint. ________________________________________________________________________ ________________________________________________________________________ ________________________________________________________________________ 2. What is the name of your host/ess? ___________________________________________ (If you cannot recall, please describe him/her, including gender, approximate age, race, etc.): ________________________________________________________________________ ________________________________________________________________________ ________________________________________________________________________ 3. Did you request: Smoking _____ Nonsmoking _____ First Available ______ 4. Did you make any special seating request? _____ _____ If so, what? ________ Yes No ___________________________________________________________________________ 5. Number of people in your party. ____________________________________________ 50 6. Was there a wait to be seated when you arrived? Yes ______ No _____________ 7. How long were you told it would take for your party to be seated? __________________ 8. How long did it take for your party to be seated? ________________________________ If you had a complaint about FOOD: 1. What did the people in your party order to eat? ________________________________________________________________________ ________________________________________________________________________ ________________________________________________________________________ ________________________________________________________________________ ________________________________________________________________________ 2. Please explain the general nature of your complaint: ________________________________________________________________________ ________________________________________________________________________ ________________________________________________________________________ ________________________________________________________________________ If you had a complaint about SERVICE: 1. What is the name of your server? ____________________________________________ (If you cannot recall, please describe him/her, including gender, approximate age, race, etc.): ________________________________________________________________________ ________________________________________________________________________ ________________________________________________________________________ 2. Do you have a complaint about the time it took your server to serve you? If so, please explain: ________________________________________________________________________ ________________________________________________________________________ ________________________________________________________________________ ________________________________________________________________________ 3. Do you have a complaint about the way your server treated you? If so, please explain: ________________________________________________________________________ ________________________________________________________________________ 51 ________________________________________________________________________ ________________________________________________________________________ 4. Number of people in your party:______________________________________________ No. of adults: ________ Approximate ages: ____________ No. of children: ________ Approximate ages: ____________ If you had a complaint about a MANAGER: 1. Did you or anyone in your party speak to a manager during your visit? _____________________________________________________________________ 2. If so, what was his/her name? _______________________________________________ (If you cannot recall, please describe him/her, including gender, approximate age, race, etc.): ________________________________________________________________________ ________________________________________________________________________ ________________________________________________________________________ 3. What did you tell the manager? ________________________________________________________________________ ________________________________________________________________________ ________________________________________________________________________ 4. How did the manager respond? ________________________________________________________________________ ________________________________________________________________________ ________________________________________________________________________ 5. Were you satisfied with the manager’s response? ________ If no, why not? ________________________________________________________________________ ________________________________________________________________________ ________________________________________________________________________ If you had a complaint about PAYMENT: 52 In the spirit of pleasing people, we invite everyone regardless of race, color, disability, or national origin, to enjoy our restaurant and old country store. Since 1969, we have tried our best to provide food and service in ways that uphold our traditions of genuine quality. If you feel we have not delivered on this promise, please let us know. 1-800-333-9566 or www.crackerbarrel.com (Drop Us A Line). We will also post our toll-free number and/or web site on one of the table tents on every table and at the bottom of each guest’s receipt. 4. Implementation of an Enhanced Training Program for Management and Hourly Employees We have also agreed to enhance our training program for management and hourly employees by providing more specialized training with respect to the identification and handling of discrimination complaints. Beginning with the 2004 annual GM convention, all general managers and district managers will be required to attend a manager’s training workshop at which such training will be conducted. This workshop will be held during the annual convention. All Associate and Senior Associate managers will view a videotape of this training workshop and attend a question-and-answer session that will be facilitated by the district manager. All managers will also be required to complete the Guest Relations e- learning module on an annual basis. All hourly employees will be required either to view a videotape of public accommodations training or complete an e-learning module covering the same material. In addition, all hourly employees will be required to successfully complete the e-learning module training program in order to advance through PAR or change positions within the system. All managers hired after the institution of this program will attend a manager’s training workshop within ninety (90) days of hire. All hourly employees hired after the institution of this program will view the videotape and/or successfully complete the Guest Relations e- learning module. 5. Creation of the Investigation Department Beginning in Fiscal Year 2005, all customer complaints based on race, color, or national origin will be handled by a newly-created Investigation Department. Although managers will still be allowed to address any concerns of customers who make discrimination complaints at the store level, managers will no longer be responsible for investigating customer complaints. Managers are required to: (a) accept complaints, either from the person affected or from any third party; (b) to obtain all relevant information relating to the alleged discriminatory conduct (including the race of the customer(s) and witness(es), if any); and (c) to report the information to the Investigation Department within 24 hours of the incident – even if the 55 complaint has been satisfactorily resolved by the manager. Additionally, if it is determined that it is not feasible for an employee of the Investigation Department to conduct in-person interviews of individuals involved in the alleged conduct, an investigator may direct a manager to conduct the in-person interviews based on questions prepared by the investigator prior to the interview. The Investigation Department will have the responsibility and the power to thoroughly investigate all customer complaints involving or suspected to involve alleged discrimination based on race or color. All managers are required to cooperate to the fullest extent possible with these investigations. 6. Retention of an Auditor Cracker Barrel will hire an Auditor to: periodically review reports generated by the Investigation Department; review the training material and various policies and procedures relating to the identification and handling of customer complaints based on race and color; and audit its overall compliance with the Consent Order. All managers are required to cooperate to the fullest extent possible with the Auditor and/or the Auditor’s representatives. 7. Participation in a Testing Program Cracker Barrel will participate in a store-level testing program to ensure that the policies and procedures discussed above are being implemented in the field. While the primary focus will be to analyze the company’s compliance with its internal policies and procedures regarding non-discrimination, the program may also analyze other operational issues which Senior Management of the company deems appropriate for testing (e.g., the time it takes to be greeted by the server, the time it takes to receive food, whether the food was the appropriate temperature when served, etc.). 56 APPENDIX D [Manager Version] I have been given, read, and understand: (1) Cracker Barrel’s Non- Discrimination Policy Statement; and (2) a summary of the Consent Decree entered in United States of America v. Cracker Barrel Old Country Store, Inc., Northern District of Georgia, Civil Action No. xxxxxx. I further understand that Federal law guarantees that no person may be denied, on account of their race or color, the full use and enjoyment of Cracker Barrel goods, services, or facilities. I agree that, as a condition of my job, neither I nor any other person under my direction shall violate this policy. I declare under penalty of perjury that the foregoing is true and correct. ______________________________ [signed] [Non-Manager Version] I have been given, read and understand Cracker Barrel’s Non-Discrimination Policy Statement. I further understand that Federal law guarantees that no person may be denied, on account of their race or color, the full use and enjoyment of Cracker Barrel goods, services, or facilities. I agree that, as a condition of my job, I shall not violate this policy. I declare under penalty of perjury that the foregoing is true and correct. ____________________________ [signed] 57