IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF FLORIDA
UNITED STATES OF AMERICA,
C.A. No. 99-1604-CIV-ORL-22C
d/b/a ADAM'S MARK HOTELS,
REVISED SETTLEMENT DECREE
On May 20, 1999, Plaintiffs Dante Gilliam, Jamie Morrison, Latoya Straughn, Napoleon Berrian, and Mark Simmonds (hereafter "the Private Plaintiffs") filed a complaint against defendant HBE Corporation d/b/a Adam's Mark Hotels (hereafter "HBE" or "defendant") seeking to represent a class of black persons who experienced race discrimination at the Daytona Beach Adam's Mark Hotel (hereafter "the DBAMH") during Black College Reunion (hereafter "BCR") in violation of Title II of the Civil Rights Act of 1964, 42 U.S.C. §2000a et seq. and 42 U.S.C. §1981. On December 3, 1999, the Private Plaintiffs filed their Second Amended Complaint, which added HBE-Florida Corporation (hereinafter "HBE-Florida") as a defendant. Gilliam et al. v. HBE Corporation d/b/a Adam's Mark Hotels et al., 99-596-CIV-ORL-22C.
On December 16, 1999, the Florida Attorney General's Office ("State of Florida") filed a complaint against HBE, HBE-Florida, and Frederick S. Kummer, Jr., the Chief Executive Officer of HBE, and filed an unopposed Motion to Intervene in Private Plaintiffs' action asserting pendent state claims under Florida's Unfair and Deceptive Trade Practices Act, Chapter 501, Part II. On January 18, 2000, the Court granted the State of Florida's Motion to Intervene.
On December 16, 1999, the United States filed a complaint against defendant HBE Corporation d/b/a Adam's Mark Hotels, alleging violations of Title II of the Civil Rights Act of 1964, 42 U.S.C §2000a et seq.
In September 1999, all plaintiff parties and defendants voluntarily engaged in mediation for the purpose of resolving all of the parties' claims. This mediation was unsuccessful. However, shortly after the United States and the State of Florida filed its Complaint and Motion to Intervene, respectively, the parties renewed settlement discussions and reached resolution of all parties' claims.
On March 21, 2000, the parties in the United States' case and the parties in the Gilliam case filed a Proposed Settlement Decree in their respective cases.
On July 7, 2000, the Court entered an Order requiring counsel to address several issues. After submission of the parties' memoranda, and a hearing on October 6, 2000, the Court entered an Order on October 13, 2000, denying the Joint Motion of Plaintiffs, Defendants, and the State of Florida for Preliminary Approval of Proposed Settlement Decree, filed on March 21, 2000. Subject to minor revisions to the Settlement Decree in the United States' case which are contained in this Revised Settlement Decree, the Court stated that approval of the United States' Decree would be imminent.
Defendant HBE is a privately held Delaware corporation with its principal place of business in St. Louis, Missouri. Defendant HBE-Florida is a subsidiary of HBE and is a privately held Florida corporation with its principal place of business in St. Louis, Missouri.
Defendants have at all times denied and continue to deny the allegations asserted above. The parties have agreed to resolve this action voluntarily. The parties have agreed to the following terms upon which this action will be fully and finally resolved and, as indicated by the signature of counsel at the end of this document, have consented to the entry of this Agreement by the Court.
The parties agree to abide by all of the terms of this Agreement in good faith and to support it fully, and shall use their best efforts to defend this Agreement from any legal challenge, whether by appeal or collateral attack.
- PURPOSES OF DECREE
The parties have entered into this Decree for the following purposes:
- To ensure that African American guests and visitors of Adam's Mark Hotels are provided equal treatment, service, and access to places of public accommodation at the hotels regardless of their race or color;
- To ensure that African Americans are provided with equal treatment regardless of their race or color while attending Special Events or Group Events at the Adam's Mark Hotels;
- To provide appropriate injunctive relief in furtherance of the public interest and to remedy the claims of the United States; and
- To provide finality to the resolution of all claims and defenses asserted in this action.
- "African American" - shall mean all black persons.
- "Agent" -- shall include hourly and salaried employees, independent contractors, and security personnel.
- "Black College Reunion" or "BCR" - refers to an event that started in 1984 as a homecoming for students and alumni of two historically black colleges, Bethune-Cookman College and Florida A&M University. The event, which is attended primarily by black persons, has been held annually since 1984 in Daytona Beach, Florida. This past year, BCR was held over the April 9-11, 1999 weekend.
- "Complaint" - shall include any oral or written, formal or informal complaint, to any administrative, judicial or official body, including calls to the HBE toll-free complaint line, or to any officer, employee, or agent of HBE.
- "Effective Date" - shall refer to the date upon which the Court signs this Decree.
- "Group Events" - shall include any event at an Adams Mark Hotel where the sponsoring group makes reservations with the hotel and/or where individual guests or patrons make reservations at the group rate and as part of the group event.
- "HBE" - shall refer to the Adam's Mark Hotel chain.
- "Management-Level Personnel" - shall include corporate officers, corporate directors, executives, general managers, regional managers, directors, managers of restaurants, bars, clubs, and lounges, or any other individuals with management or supervisory responsibilities employed by HBE or its subsidiaries.
- "Non-managerial Employees" - shall include hourly employees and any other persons employed by HBE or its subsidiaries who do not fall within the definition of Management-Level Personnel described above.
- "Parties" or "party"- Unless otherwise specified, shall refer to the United States defendants regarding the injunctive provisions of the Settlement Decree in United States v. HBE Corporation d/b/a Adam's Mark Hotels 99-1604-CIV-ORL-22C.
- "Public Accommodations" - shall include hotels, restaurants, bars, clubs, lounges, and all facilities contained therein, which are held open to the public.
- "Special Event" - shall include events that take place only once a year or at similar intervals where the guests are generally transient including, but not limited to, events such as BCR, Bike Week, Spring Break, Biketoberfest, Daytona 500, Pepsi 400, and the Rolex 24-Hour Race.
- JURISDICTION, SCOPE, AND TERM OF DECREE
The parties stipulate and the Court finds that: (1) Adam's Mark Hotels are places of public accommodation within the meaning of 42 U.S.C. § 2000a(b)(1); (3) this Court has personal jurisdiction over defendant for purposes of this action and jurisdiction over this action pursuant to 42 U.S.C. § 2000a-6 and 28 U.S.C. §§ 1331, 1343 and 1345.
All provisions of this Decree shall apply to HBE, its subsidiaries, officers, employees, agents, assigns, successors in interest in the ownership and/or operation of hotels doing business as Adam's Mark Hotels, and anyone acting in whole or in part under the direction of HBE or any HBE subsidiaries in connection with the treatment and/or service of customers in Adam's Mark Hotels.
This Decree shall be effective immediately upon the Effective Date of this Decree, and shall remain in effect for four (4) years. However, at the end of the third year, HBE may apply to the Court for an order dismissing the case. The United States shall retain the right to oppose defendant's application for dismissal if they contend that HBE has failed to comply with any provision of this Decree. The Court may determine that dismissal of the case is appropriate based upon satisfactory compliance by HBE with the terms, provisions, and purposes of the Decree.
- ACTS AFTER COURT APPROVAL
The provisions of this Agreement are not intended to eliminate or terminate any rights otherwise available to the United States for acts by defendant, its subsidiaries, directors, officers, agents, or employees, occurring after the Effective Date of this Decree.
- NONDISCRIMINATION PROVISIONS
- Prohibitory Injunction
HBE, together with its subsidiaries, officers, employees, agents, assigns, successors in interest in the ownership and/or operation of their respective places of Public Accommodation, and those persons in active concert or participation with them in connection with the treatment and/or service of customers, are HEREBY PERMANENTLY ENJOINED from:
- Denying to any person on the basis of race or color the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of its hotels, restaurants, bars, clubs, or lounges;
- Denying or providing inferior service, or offering less favorable or more restrictive terms and conditions of service, to any person based on race or color;
- Representing to any person, based on race or color, that services or the enjoyment of defendant's facilities are not available, when such are in fact so available;
- Assigning any person, based on race or color, to a particular hotel room;
- Increasing security measures, and the number of security personnel, based on the race or color of the hotel's guests;
- Requiring hotel guests to wear wristbands or to undergo other identification procedures based on their race or color;
- Excluding or limiting the number of patrons at its hotels, restaurants, bars, clubs, or lounges based on the race or color of the patrons;
- Implementing musical formats or other promotional events at its hotels, restaurants, bars, clubs, or lounges designed to exclude or limit the number of black persons patronizing these establishments;
- Denying or prohibiting persons from visiting hotel guests based on the race or color of the guests or visitors;
- Instructing or encouraging employees or staff members to discourage any person from visiting defendant's facilities or from enjoying the full benefits of defendant's facilities based on that person's race or color;
- Charging higher prices for food, beverages, or services based on race or color;
- Imposing room rates and methods of payment based on race or color;
- Retaliating against any officer, employee or agent for opposing or reporting alleged discrimination in the service and/or treatment of guests or patrons, in violation of applicable law and/or this Decree; and
- Nondiscrimination Policies and Procedures
HBE's policies and procedures regarding customer and group service, including those related to reservations, service of food or beverages, parking services, room assignments, room rates, security deposits, check-in, guest identification, visitation, room maintenance and cleaning, and check-out, shall be applied equally to all customers regardless of their race or color.
Within 90 days of the entry of this Decree, HBE shall submit to the Compliance Officer (1), and the United States for review and approval, its revised customer service policies and procedures designed to effectuate the non-discrimination remedial goals of this Decree. Modifications made to these customer service policies during the term of the Decree shall be submitted to the Compliance Officer, and the United States for review and approval within fifteen days from the date the modification to the policy is proposed.
The revised customer and group services policies and procedures shall include, but not be limited to:
- Customer Service
HBE shall ensure that all of its hotels employ uniform policies and procedures regarding the treatment of hotel guests regardless of the race or color of each guest. Standard policies and procedures shall address the assignment and reservation of available hotel rooms based on guest preferences. No hotel shall assign rooms, impose room rates, or require particular methods of payment based on the racial characteristics of hotel guests. The standard policies and procedures shall provide for the equal treatment of all patrons at HBE hotels, restaurants, bars, clubs, or lounges, without regard to race or color, with respect to all aspects of operation including, but not limited to, hours of service, cover charges, identification requirements, prepayment requirements, food and alcohol prices, and dress codes, if any.
- Group Events
HBE shall adopt uniform policies and procedures regarding the treatment of hotel guests attending Group Events. Such policies and procedures shall be applied without regard to the race or color of such guests. The Compliance Officer shall be responsible for insuring that adequate records are maintained of the following aspects of each and every Group Event held at an Adam's Mark Hotel: (a) the racial makeup of the majority of the attendees of the Group Event determined by observation by HBE; (b) a description of the event; (c) the date and location of the Group Event; (d) the names of any and all sponsors or other persons primarily responsible for paying for the event; (e) payment and contract terms (i.e. deposits and billing procedures) offered and agreed to by the hotel for the Group Event; (f) the prices charged for food, beverages, and other commodities provided to the attendees; (g) the selection of food, beverages, and other commodities offered to the attendees; (h) room rates, including any and all complementary rooms or discounts offered to the attendees; and (i) rental rates offered to the attendees for meeting or entertainment facilities. The Compliance Officer shall analyze these records on a quarterly basis for the purpose of determining whether there is reason to believe that a predominately African American Group Event has been treated less favorably than a predominately white Group Event at any Adam's Mark Hotel. In the event the Compliance Officer concludes that there has been disparate treatment, HBE shall be given an opportunity to provide the United States with a response to the Compliance Officer's findings. The United States shall review the defendant's response for the purpose of determining whether HBE has complied with the terms of the Decree. Upon request, the United States shall be provided with access to the Group Event records reviewed by the Compliance Officer.
- Customer Service
- Specific Nondiscrimination Policies Regarding Special Events at Daytona Beach Adam's Mark Hotel ("DBAMH")
- The DBAMH shall use its best efforts to provide the same level and type of security for each Special Event. The parties agree that there may be circumstances related to the number of persons anticipated to be present in the hotel during certain Special Events which may require additional security personnel on the hotel premises. In such circumstances, the defendant shall utilize non-uniformed security personnel, including when reasonable police officers and/or deputies, to the greatest extent possible. Where lodging is offered to security personnel during a Special Event, the DBAMH shall use its best efforts to offer lodging to the same number of security personnel during each Special Event.
- If the DBAMH decides to enforce a maximum number of occupants per room or limit the number of visitors allowed per room, the hotel shall apply these policies equally to all Special Events and shall disclose such policies to guests before they register or pay any deposits to reserve a room with the hotel. The hotel may not use wristbands to identify guests during any Special Event or charge a fee for a visitor to enter the DBAMH.
- If the DBAMH decides to require a damage deposit for any Special Event, the amount of such damage deposit and the procedures used to collect and return this deposit shall be applied equally to all Special Events and such policies shall be disclosed to guests before they register or pay any deposits to reserve a room with the hotel.
- If the DBAMH decides to limit access to in-room telephones, mini-bars, or movies or to charge a deposit for the use of these amenities during any Special Events, such limitations shall be applied equally to all Special Events and such policies shall be disclosed to guests before they register or pay any deposits to reserve a room with the hotel.
- Valet parking procedures shall be applied in the same manner at the DBAMH for all Special Events. The availability of the hotel's covered parking shall be offered in the same manner during all Special Events. The DBAMH's security force and employees shall not park in the hotel's covered parking garage during all Special Events.
- The amount charged per room for each additional guest over two guests shall be the same during each Special Event. If the DBAMH requires advance payment of the room rate and/or a deposit in order to reserve a room during any Special Event, the procedures used for collecting such advance payment, including the type of advance payment accepted, the payment method required, the timeframe for receipt of the advance payment, and the hotel's policy regarding refunding the advance payment shall be the same for all Special Events and such policies shall be disclosed to guests before they register or pay any deposits to reserve a room with the hotel.
- If the DBAMH requires advance payment prior to serving any food or beverage products during any Special Event, such advance payment procedures shall be applied in the same manner during all Special Events and such policies shall be disclosed to guests before they register or pay any deposits to reserve a room with the hotel.
- The DBAMH shall use its best efforts to provide the same number of housekeepers per rooms rented, provide housekeeping service to rooms with the same frequency, and provide housekeepers with uniform procedures for cleaning rooms during all Special Events.
- Potential guests shall be given an opportunity to rent suites, plaza rooms, cabana rooms, hospitality rooms, terrace rooms, executive-level rooms, and presidential rooms on a first-come first-served basis during all Special Events. All rooms at all levels shall be consistently furnished as appropriate for each room level during all Special Events.
- The DBAMH shall not use bike racks or other objects as barricades during Special Events unless they are used in the same manner during all Special Events.
- GENERAL COMPLIANCE.
HBE shall implement the plan described below to ensure compliance with federal and state public accommodation laws by HBE, its officers, employees, and agents. The plan includes, but is not limited to, provisions for the development and implementation of a non-discrimination training program for personnel, the retention of a Compliance Officer, establishing a complaint investigation procedure, testing of HBE hotels to ensure compliance with the Decree, implementation of a marketing plan to attract African American patrons to HBE hotels, and notification to the public that HBE hotels will operate in a non-discriminatory manner consistent with this Settlement Decree. In order that compliance with the Decree may be monitored appropriately, HBE shall maintain appropriate records. HBE shall cooperate with the parties in providing complete, accurate and current information as required under the Decree regarding its hotels, restaurants, bars, clubs, or lounges, and compliance with the terms of the Decree.
- Compliance Officer
- Purpose and Duties of Compliance Officer
In order to ensure that all customers of HBE are provided accommodations and service on a non-discriminatory basis, a Compliance Officer shall be selected to oversee the implementation of the Settlement Decree. (2) The Compliance Officer shall be responsible for full oversight of defendant's fulfillment of the requirements of the Decree to ensure that it is implemented fully and effectively, and to assist in monitoring HBE's compliance with the Decree. Specifically, the Compliance Officer's duties shall include, but not be limited to:
- Monitoring and supervising HBE's compliance with the Decree;
- Investigating complaints by customers who allege that they have been discriminated against, or subjected to unequal treatment, due to their race or color, or have witnessed others being discriminated against because of their race or color;
- Investigating complaints by HBE officers, employees or agents who allege that they have witnessed discriminatory actions regarding customer service or treatment by other HBE employees and/or managers, or allege that they have been encouraged or pressured to discriminate against customers by HBE employees and/or managers, or allege retaliation for reporting a violation of the Decree;
- Reviewing, approving, and monitoring the training program and marketing plan, and overseeing the testing program provided for in the Decree;
- Preparing reports as required by the terms of the Decree;
- Providing to the United States any relevant information known, or available to the Compliance Officer under any provision of the Decree upon reasonable request;
- Meeting and conferring with counsel for the parties to consider suggestions for implementing the spirit and letter of the Decree;
- Reviewing and approving HBE's revised customer service policies and procedures designed to effectuate the non-discrimination remedial goals of the Decree; and
- gathering, reviewing, and analyzing data with respect to Group Events.
- Qualifications of Compliance Officer
The Compliance Officer shall be an individual or organization which is wholly independent from defendant corporation. The Compliance Officer's qualifications shall include, but not be limited to, familiarity with, and experience in, the enforcement of civil rights, specifically in the areas of race and ethnicity. In the event that an organization is selected to perform the functions of a Compliance Officer, the United States will have exclusive approval authority for the individual(s) within the organization who will have principal responsibility for implementing the terms of this Decree and carrying out the Compliance Officer's duties under the United States' supervision.
- Selection of Compliance Officer
The parties have agreed that Project Equality, with headquarters in Kansas City, Missouri, shall serve as the Compliance Officer. Project Equality shall designate an individual, subject to the United States' approval, who shall have primary responsibility and accountability for the implementation of this Decree. Although HBE must pay the costs and expenses associated with the Compliance Officer and his or her staff and consultants, the Compliance Officer shall be responsible to the United States. The Compliance Officer may at any time directly consult with the United States regarding HBE's compliance with the Decree without HBE's counsel being present. Such consultation may be deemed confidential and unable to be disclosed to any representative of HBE at the request of the United States. The Compliance Officer shall provide the United States with any information and documentation regarding the provisions of the Decree without prior approval from defendant. The Compliance Officer shall make reports to the United States, and shall make all records available in accordance with the terms of this Settlement Decree.
- Retention and Supervision of Compliance Officer
HBE shall pay the salary, costs, and expenses associated with the Compliance Officer and shall provide sufficient funds to permit the Compliance Officer to hire staff and consultants to assist him or her in carrying out the Compliance Officer's duties and responsibilities under the Decree. Although the Compliance Officer shall independently contract with HBE, compensation, bonuses, or other forms of payments or benefits, and charges, debts, or other decreases in compensation or benefits of the Compliance Officer and his or her staff and/or consultants shall be negotiated between HBE and the Compliance Officer, subject to approval by the United States. If these parties are unable to agree upon such terms and conditions, these parties shall use the Dispute Resolution Procedure set forth in the Settlement Decree. The defendant, its officers, agents, or employees shall not retaliate against the Compliance Officer or his or her staff and/or consultants for actions taken in accordance with the Decree. The Compliance Officer and staff may consult with any HBE employees or agents without informing HBE's counsel or officers.
- Implementation of Decisions by Compliance Officer
The Compliance Officer shall implement the Decree in consultation with the United States. If HBE objects to any decisions made by the Compliance Officer, such objection shall be resolved through the Dispute Resolution Procedure set forth in the Decree.
- Termination of Compliance Officer
If the United States, in its discretion, determines that the Compliance Officer has failed to perform adequately any duties established by this Decree in such a manner as to undermine the achievement of the purposes and provisions of the Decree, it may, upon thirty (30) days written notice to HBE, terminate the Compliance Officer.
In such instance, the United States, and the defendant shall attempt to select a new Compliance Officer by reaching a consensus on the most qualified person available. If this process does not result in an agreement as to the selection of the new Compliance Officer, the selection of a new Compliance Officer shall be made by HBE subject to the approval of the United States, which approval shall not be unreasonably withheld. The United States, in its discretion, may interview the person proposed by HBE. If the United States has any objection to HBE's proposed appointment, it shall notify HBE within ten (10) days of receipt of the name and resume. If a dispute arises concerning the appointment of a new Compliance Officer, the Dispute Resolution Procedure shall be used to resolve the dispute.
- Purpose and Duties of Compliance Officer
- Complaint Investigation
The Compliance Officer shall establish a complaint investigation procedure. The procedure shall be submitted to the United States for approval within 30 days of the Effective Date of the Decree, or retention of the Compliance Officer, whichever is later. The Compliance Officer shall be responsible for investigating: (1) all complaints of discrimination occurring after the Effective Date of the Decree against guests or patrons on the basis of race or color, and (2) all complaints of retaliation occurring after the Effective Date of the Decree against officers, employees, or agents who reported discrimination against guests or patrons on the basis of race or color at Adam's Mark Hotels. Within three (3) days of receipt, HBE is required to provide the Compliance Officer with any and all information regarding any complaints, formal or informal, of discrimination against its guests or patrons on the basis of race or color, whether they involve guests, patrons, visitors, employees, or contractors. The Compliance Officer shall complete his or her investigation of all complaints within 60 days of receipt of the complaints.
If the Compliance Officer concludes after investigation that there are reasonable grounds for believing that racial discrimination or retaliation may have occurred, the Compliance Officer shall recommend appropriate remedial measures, including, but not limited to, disciplining HBE employees, terminating HBE employees, revising training procedures or other policies, or requiring additional training for the alleged discriminator or other employees connected with the incident. The Compliance Officer shall promptly report to the United States in writing all details regarding the complaint, its investigation and findings, and any proposed action or resolution of the complaint within ten days of the completion of the investigation. Any disagreement between the United States and HBE concerning the disposition and resolution of such complaints shall be resolved pursuant to the Dispute Resolution Procedure.
HBE agrees to toll any applicable state or federal statutes of limitation related to the complaint for the period that the complaint is under investigation by the Compliance Officer.Nothing in this section shall affect the right of the United States to investigate independently any complaint received from any source alleging illegal discrimination by HBE. Defendant may investigate independently any such complaint only with the agreement of the Compliance Officer and subject to any conditions the Compliance Officer may impose; and such investigation shall not interfere with or compromise the Compliance Officer's investigation. Moreover, nothing in this section shall prohibit any person from exercising their rights protected under state or federal law.
- Meetings or Teleconferences
Periodically throughout the term of the Decree, the Compliance Officer, after consultation with the United States shall schedule meetings or teleconferences at times and places designated by the Compliance Officer for the purpose of assessing the progress of the Decree, discussing any outstanding disputes or other issues regarding the Decree's implementation, and devising ways that the Decree's goals can be more effectively achieved. The parties shall meet or confer no less than quarterly during the term of the Decree. The Compliance Officer shall endeavor whenever appropriate to schedule the quarterly meetings at different Adam's Mark Hotels in order to address outstanding problems or issues regarding that particular hotel. If, at any time after quarterly meetings have been held for two years, the Compliance Officer determines that a smaller number of meetings per year is sufficient to accomplish the purposes of the Decree, the Compliance Officer may reduce the number of meetings after consultation with the United States, provided that a minimum of two meetings per year are conducted for the remaining term of the Decree.
- NOTICE TO EMPLOYEES AND TRAINING
- Notification to Officers, Employees and Agents
Within 60 days of the Effective Date, HBE shall send each of its officers, employees and agents a letter accompanied by: (1) a Summary of the Decree as set forth in Exhibit A; and (2) a copy of the Employee Notice set forth in Exhibit B, explaining the employee's and/or agent's duties and obligations under Title II of the Civil Rights Act of 1964, Section 1981 of the Civil Rights Act of 1866, other applicable laws related to discrimination in public accommodations, and this Decree. In addition, HBE shall inform its officers, employees and agents that any breach of, or failure to comply with, the terms and conditions set forth in the Decree shall subject them to appropriate disciplinary action, including dismissal. Each person receiving the Summary and Notice shall execute a statement acknowledging that he or she has received and read the Summary and Notice and that he or she understands and agrees to act in accordance with the requirements contained therein. Such statement shall be in the form of Exhibit C to this Decree, and copies thereof shall be retained at the hotel or HBE office where the officer, employee, or agent works.
Within 60 days of the Effective Date of the Decree, HBE shall inform each current officer, employee and agent that HBE shall not reprimand, penalize, or otherwise retaliate in any way against any officer, employee or agent for opposing or reporting alleged discrimination in the service and/or treatment of customers in violation of applicable law and/or this Decree.
- Notice of Incentive and Evaluation Program
Within 60 days of the Effective Date of the Decree, all HBE officers and employees shall be notified, consistent with this section, that: (1) failure to comply with the obligations of this Decree shall affect the eligibility of any management employee to receive any benefits under any of defendant's incentive programs for management employees to the extent discretion is involved in deciding such benefits; and (2) failure to comply with the obligations of this Decree shall affect the eligibility of an employee to receive a promotion to any position within HBE.
HBE shall provide training with regard to its obligations under this Decree for all HBE employees. All costs and fees associated with the training shall be paid by defendant. The training shall be developed by Project Equality and approved by the United States.
The training program shall be developed within 30 days of the Effective Date of this Decree. The program shall consist of both live training and video training as set forth below, and shall be submitted to the United States for approval.
- Training of HBE Executives, and Management-Level Personnel
Within 30 days of the date that the training program is approved by the United States, and every 180 days thereafter for the first two years of the Decree, HBE shall provide live training to all Management-Level Personnel, and all persons with managerial responsibilities within the Public Accommodations of the hotels, regarding their duties and obligations under Title II of the Civil Rights Act of 1964, §1981 of the 1866 Civil Rights Act, and applicable state and local public accommodations laws.
Thereafter, management level training shall occur once a year unless the training organization determines that more frequent training is necessary. All new HBE executives and newly-hired management level personnel shall participate in the next regularly scheduled live training session occurring after his or her date of hire. These individuals shall also view the training video as described below within ten days from the commencement date of their employment.
- Training of Non-Managerial Employees
Within 30 days from the date that the training program is approved by the United States and annually thereafter during the term of the Decree, all persons subject to the terms of this Decree engaged in the service or treatment of Adam's Mark Hotel customers, who are not required to attend live training as set forth above, shall be required to undergo video training regarding their duties and obligations under Title II of the Civil Rights Act of 1964, §1981 of the 1866 Civil Rights Act, and applicable state and local laws regarding public accommodations. Thereafter, all new employees or agents engaged in the service or treatment of Adam's Mark Hotel customers not required to attend live training shall be required to receive video training within ten days from the commencement date of their employment or retention. General managers shall attend each group video training session for their respective hotels in order to answer questions and reinforce the non-discrimination training.
- Content of Training
At a minimum, the non-discrimination training shall include the following: (a) instruction in the requirements of all applicable federal and state public accommodations laws; (b) a review of HBE's non-discrimination policies and of the specific requirements of this Settlement Decree; (c) notice that HBE shall not reprimand, penalize, or otherwise retaliate in any way against any officer, employee or agent for opposing or reporting alleged discrimination in the service and/or treatment of customers in violation of applicable law and/or this Decree; (d) instruction in procedures designed to ensure that race or color do not enter, either directly or indirectly, into business decisions concerning the treatment and/or service of customers; (e) a discussion of the business advantages of serving all persons on a non-discriminatory basis; (f) training in racial sensitivity; (g) training of management in handling and responding to discrimination complaints; and (h) a question and answer session for the purpose of reviewing each of the foregoing areas.
- Training Records
HBE shall record the date, time, duration, agenda, and attendees for each training session.
- Acknowledgment of Training
Each officer, employee or agent who participates in and receives instruction through the non-discrimination training program set forth above shall sign a statement in the form of Exhibit D to this Settlement Decree, acknowledging that he or she has participated in, understands, and has completed the non-discrimination training program.
- Training Materials
HBE shall include instruction regarding HBE's duties and obligations under Title II of the Civil Rights Act of 1964, §1981 of the 1866 Civil Rights Act, applicable state and local public accommodations laws, and this Settlement Decree in all training materials and formal training sessions dealing with treatment of the public that it provides to its officers, employees or agents in the ordinary course of business. Within 120 days of the Effective Date, HBE shall revise its current training materials, including training videos, to ensure that such materials convey the message that African Americans are welcome at HBE facilities. Within ten days thereafter, HBE shall submit all of its training materials to the United States, and the Compliance Officer for approval.
- Disciplinary Policy
Within 30 days after the Effective Date of the Decree, HBE shall provide the United States and the Compliance Officer with a proposed written disciplinary policy for racially discriminatory or retaliatory conduct. The policy shall include, but not be limited to, the following: (1) a description of specific disciplinary measures that may be imposed, such as reprimands, suspensions, or dismissals, should an employee be found to have violated the terms of the Decree; and (2) a description of the procedure by which the disciplinary measures will be considered and imposed. The proposed disciplinary policy shall go into effect once it has been approved by the United States, and the Compliance Officer.
- NOTICE TO PUBLIC, ADVERTISING, AND OUTREACH
- Posting of Equal Opportunity Signs
Within 30 days after the Effective Date, HBE will post behind the registration desk of each of its hotels a sign indicating that the facilities are open to, and that service will be provided to, all persons without regard to race or color. An additional sign shall also be posted within each of the hotel's restaurants, bars, clubs, and lounges, in a location clearly lighted and visible to patrons, up to a maximum of five signs. The sign shall have dark letters at least one-inch high on a contrasting background. The sign shall state that patrons can make complaints of racial discrimination to the Compliance Officer and shall provide HBE's toll-free number for complaints. HBE shall provide the United States with a draft of the proposed signs for comment and approval prior to publishing such signs. HBE shall maintain these signs at all times for the term of this Decree. HBE shall cause such signs to be posted in any new Adam's Mark Hotels as soon as they are opened to the public. HBE shall also print this notice conspicuously on the bottom of each folio or final bill given to guests of the hotel at check-out, as well as on the guest comment cards.
- Nondiscrimination Statement
The nondiscrimination statement described above in paragraph A shall be prominent and readily legible in all written media advertising (newspapers, magazines, posters, brochures, fliers, websites, etc.), as well as all nationally distributed brochures. This statement shall appear on all Adam's Mark Hotel brochures no later than 180 days after the Effective Date of this Decree.
- Targeting Minority Markets
A goal of this Decree is to increase the visibility in the African American community of Adam's Mark Hotels and facilities as desirable places of Public Accommodation. To facilitate this goal, the Compliance Officer and HBE shall design appropriate programs of affirmative outreach to African American markets. The Compliance Officer and HBE shall establish a marketing program, subject to the United States' approval, for identifying, targeting, and reaching African American markets, and for attracting African American Group Events to Adam's Mark Hotels. This plan shall be implemented for all Adam's Mark Hotels within 60 days of the Effective Date of this Decree.
In order to help ensure that African Americans are notified that they are welcome at, and encouraged to be patrons of Adam's Mark Hotels, its restaurants, bars, clubs, and lounges, the marketing plan shall provide for HBE to place newspaper and radio advertisements that target primarily African American audiences. The written and visual content of this media advertising should convey the message that African Americans are welcome at all Adam's Mark Hotels.
The placement of such advertisements shall begin no later than 30 days following completion of development of the marketing plan. Newspaper and radio advertisements shall be run for 3 days at least 12 times per year. For print media, the size of the advertisement shall equal or exceed one-quarter of a page. The preceding parameters regarding the number of days the advertisements are to run and the size of the advertisements are subject to change upon recommendation of the Compliance Officer and approval by the United States.
The Compliance Officer shall oversee "testing" of Adam's Mark Hotels nationwide. For purposes of this Decree, "testing" refers to an investigative process in which a white person and a black person, who are similarly situated, or groups of similarly situated white and black individuals, are sent to, or contact an Adam's Mark Hotel location, in person or by telephone, under controlled circumstances to determine if HBE's employees at that location are treating guests and patrons equally without regard to race or color. All hotels, restaurants, bars, clubs, lounges, or any other facilities operated by the hotel as Public Accommodations shall be tested. The costs, fees, and expenses of all tests shall be paid by HBE. The organization selected to perform testing shall be subject to the confidentiality provisions of the Decree set forth in Section XI(A).
The Compliance Officer shall select an independent organization, different from any organization stipulated to by the parties pursuant to Section VII(A)(3) above, which is experienced in civil rights testing, preferably in the area of Public Accommodations, to conduct the tests. The organization selected to conduct the training shall be an organization which is wholly independent from defendant corporation.
Within 60 days of the retention of the Compliance Officer, the Compliance Officer shall notify the United Statesof the name of an independent organization[s] it proposes to use to satisfy the requirements of this section. If the United States does not object to the proposed organization within fifteen days of receipt of this proposal[s], the Compliance Officer may retain the organization[s] proposed. If the United States objects to the proposed organization within such time, the Compliance Officer shall use its best efforts to propose another organization within thirty (30) days thereafter. In no event shall the Compliance Officer retain a testing organization without the approval of the United States. Test procedures developed by any testing organization shall be submitted to the United States for review, comment, and approval prior to the implementation of any test. The number, timing, and location of tests to be carried out by the testing organization[s] shall be determined by the United States. At no time shall any employee or agent of HBE, including the Compliance Officer, be provided with any information concerning a test site, location, procedure, or test plan prior to the implementation of the test.
- Frequency and Location of Tests
No fewer than six tests per Adam's Mark Hotel per year shall be conducted during the term of the Settlement Decree. The tests conducted at a particular site shall include a comparable number of tests for both discrimination against persons seeking to rent room(s) or other facilities at the hotel, either as individuals or as groups, and for discrimination against persons at the hotel's restaurants, bars, clubs, or lounges. If, at any time after tests have been conducted for two years, the Compliance Officer determines that a smaller number of tests per year is adequate to accomplish the purposes of the Decree, the Compliance Officer may, subject to the approval of the United States reduce the number of tests conducted.
A test will count toward the annual totals described in this Section only if it is complete. A test is "complete" if all the testers assigned to visit the location have in fact visited the location, have been able to make contact with a HBE representative, either in person or by telephone, and have submitted a test report. Notwithstanding the provisions of this section, the parties agree that the United States may take additional steps to monitor defendant's compliance with this Decree including, but not limited to, conducting independent tests at any Public Accommodation owned or operated, in whole or in part, by defendant.
- Results of Testing
The results of all tests conducted by the selected testing organization[s] pursuant to this section, along with supporting documentation, shall be reported to the Compliance Officer, and the United States within fifteen days of the conclusion of completed tests. The testing organization, however, need not report its results within fifteen days if follow up tests are required to verify a testing result and premature reporting of earlier results would compromise the testing process. Where testing results indicate a possible violation of this Settlement Decree, the Compliance Officer shall conduct an investigation of the facts and circumstances underlying such test[s] within fifteen days of receipt of the testing evidence. Within fifteen days of the completion of his or her investigation, the Compliance Officer shall provide HBE, and the United States with a report containing the testing results, and his or her conclusions and recommendations. HBE shall respond to or implement the Compliance Officer's recommendations within fifteen days of receipt. If HBE disagrees with the Compliance Officer's recommendations, it shall notify the United Statesand the matter shall be resolved pursuant to the Dispute Resolution Procedure set forth herein.
The parties acknowledge that certain information provided pursuant to this Decree is required for the sole purpose of investigating, monitoring and enforcing defendant's compliance with this Decree. The confidentiality requirements previously ordered by this Court shall remain in place. All records, reports and other documents maintained or produced pursuant to the terms of this Decree shall be kept confidential and used and/or disclosed solely for the purposes of this Decree. The Compliance Officer and the parties shall not disclose such information to any person or entity that is not a party, except as is reasonably necessary to enforce, monitor or administer the provisions of this Decree or to comply with otherwise applicable laws. Any inadvertent disclosure of such confidential information to a person or entity that is not a party shall not constitute contempt unless such disclosure was willful.
If the Compliance Officer or the defendant desires to disclose information made confidential by this section for any purpose other than to enforce or monitor the purposes and provisions of this Decree or to comply with otherwise applicable laws, that party shall notify the United States of the information it seeks to disclose and the reasons for disclosing it. The party shall provide to the United States the nature of the information proposed to be disclosed, and appropriate documentation, no later than ten (10) business days before the information is intended to be disclosed. If the United States objects to the disclosure of such information, the parties shall attempt to resolve all issues concerning the disclosure of such information pursuant to the Dispute Resolution Procedure.
- Discrimination Complaints
The Compliance Officer shall maintain all records of any oral or written, formal or informal complaints of discrimination on the basis of race or color concerning HBE's service and treatment of customers filed or submitted by any customer, potential customer, employee, former employee, or received from any other source, including calls made to the HBE toll-free complaint line. This paragraph shall apply to all complaints, letters, or notices filed or submitted to any HBE officers, employees or agents, including, but not limited to, all complaints submitted to Adam's Mark Hotels as well as to the corporate headquarters. These records shall also include the databases currently used by HBE's corporate headquarters and legal departments to record customer complaints. Those databases shall be modified to include data fields showing complaints alleging discrimination based on race or color, and the race of such complainants. This information shall be forwarded to the Compliance Officer regularly, and upon request, in a computer-readable form.
- Training Materials
The Compliance Officer shall maintain records relating to all training conducted pursuant to the Decree, including, but not limited to, training program materials, instructions, directives, guidelines, policy statements, and formal training sessions provided to all HBE personnel.
- Advertising/Promotional Materials
The Compliance Officer shall maintain representative copies of all advertisements and promotional materials and, as appropriate, all records relating to the dates and/or times and media where such advertisements or promotional material appeared and where and how such materials were disseminated and distributed.
- Testing Materials
The Compliance Officer shall maintain all records relating to any tests conducted by the selected testing organization[s] pursuant to the terms of the Decree.
- Other Records
The Compliance Officer shall maintain all other records relating to implementation of the provisions of this Settlement Decree, including the provisions outlined in Section VI(B)(2) of this Decree. The Compliance Officer and HBE shall retain all documents and records related to the Decree for a period of six months following the expiration of the Decree. At any time between the Effective Date and six months following the expiration date of the Decree, the United States shall be permitted to inspect and copy any records or documents related to this Settlement Decree upon reasonable notice.
- REPORTING REQUIREMENTS
- Quarterly Reports
No later than 90 days after the Effective Date, and every three months thereafter for the duration of the Decree, the Compliance Officer shall serve on the United States and HBE a report containing the following information:
- Advertising Information
Representative copies of all advertisements and promotional materials which were published, printed, disseminated or aired during the reporting period, together with a statement indicating, as appropriate, the dates and media where they appeared and where and how promotional materials were disseminated or distributed.
- Training Information
The first report shall include a certification that the initial non-discrimination training program set forth in this Decree has been completed, or is scheduled for completion, and shall specify the location of all signed employee acknowledgments (hereto attached as Exhibit D). Each report thereafter shall contain a description of all training activity conducted pursuant to the Decree which has occurred during the preceding 90 day reporting period.
- Discrimination Complaints
Each report shall contain details of any complaint received by the Compliance Officer during the preceding 90 days, charging or alleging discrimination on the basis of race or color with respect to service or treatment of customers at any HBE hotel, restaurant, bar, club, or lounge, including a description of the recommendations of the Compliance Officer and any action taken by HBE in response to such recommendations.
- Advertising Information
- DISPUTE RESOLUTION PROCEDURE
If differences arise between any of the parties with respect to compliance with, interpretation of, or implementation of the terms of this Decree, the parties shall make best efforts to resolve such differences promptly.
- Written Exchange and Consultation
Subject to Section XIII(A), if a party believes that an issue is not capable of resolution through informal discussions, it shall promptly provide written notification to the other party of the issue and the facts and circumstances relied upon in asserting its position. The party notified of the issue shall be given a reasonable period of time (not to exceed 30 days) to review the facts and circumstances and to provide the party raising the issue with its position, including the facts and circumstances upon which it relies in asserting its position. Within a reasonable period of time thereafter (not to exceed 15 days), the parties shall meet, by telephone or in person, and attempt to resolve the issue informally. The Compliance Officer may be involved in this meeting or teleconference at the invitation of a party.
- Resolution by the Mediator
If the parties are unable to resolve the issue among themselves, they shall notify the Mediator and seek his or her assistance in resolving the dispute. The parties shall agree on the selection of the Mediator. All fees and costs associated with the Mediator shall be paid by defendant. The Mediator shall attempt to mediate the dispute and reach an amicable agreement among the parties. If at any point the Mediator believes in his or her discretion that the parties are at an impasse, the Mediator shall notify the parties in writing of his or her recommended resolution of the dispute. This resolution shall be binding on the parties unless, subject to Section XIII(A), one of the parties seeks a contrary ruling from the Court within 10 days following receipt of the Mediator's proposed resolution. Review of the Mediator's proposed resolution shall be sought only in exceptional circumstances. The Court shall uphold the Mediator's recommendation as long as it is reasonable, supported by the facts, and not predicated on a mistake of law or a clearly erroneous interpretation of the terms of the Decree.
- Exigent Circumstances
Subject to Section XIII(A), nothing in this section shall prevent any party from promptly bringing an issue before the Court when, in the moving party's view, the facts and circumstances concern issues of such importance that they require immediate attention by the Court. The moving party's papers shall explain the facts and circumstances that necessitate immediate Court action. If any party brings a matter before the Court requiring immediate action, the other parties shall be provided with appropriate notice under the Local Rules of this District and the Federal Rules of Civil Procedure.
All notices and other communications required under this Decree shall be in writing and delivered either personally or by depositing the same postage prepaid, by overnight mail, to the parties at the following addresses:
TO: Plaintiff United States of America
Chief, Housing and Civil Enforcement Section
U.S. Department of Justice
P.O. Box 65998
Washington, D.C. 20035-5998
HBE General Counsel
11330 Olive Street Road
P.O. Box 419039
St. Louis, MO 63141
Michael M. Baylson
Teresa N. Cavenagh
DUANE MORRIS & HECKSCHER LLP
One Liberty Place
Philadelphia, PA 19130
The parties shall give written notice of any change of address for purposes of this section to the other parties.
- RELEASE OF CLAIMS
Upon the Effective Date of this Decree, defendant hereby releases the United States, including its constituent agencies or organizations, from any and all claims relating to cancellation of contracts which took place prior to the Effective Date of this Decree arising from the filing of the United States' complaint.
The provisions of this Decree may be modified by written agreement of the parties. The parties shall file any such written agreement with the Court. The modification will be effective as of the date of filing the written agreement and shall remain in effect for the duration of the Decree or until such time as the Court indicates through written order that it has not approved the modification.
It is so ORDERED this ________ day of ________________, 2000
United States District Judge
JOAN A. MAGAGNA
JE YON JUNG
CHARLA D. JACKSON
Housing & Civil Enforcement Section
Civil Rights Division
U.S. Department of Justice
P.O. Box 65998
Washington, D.C. 20035-5998
Fax: (202) 514-1116
DONNA A. BUCELLA
UNITED STATES ATTORNEY
WARREN A. ZIMMERMAN
I. RANDALL GOLD
Bar No: 652040
ASSISTANT UNITED STATES ATTORNEY
400 North Tampa Street
Tampa FL 33602
Fax: (813) 274-6200
ATTORNEYS FOR THE UNITED STATES
MICHAEL M. BAYLSON
DUANE, MORRIS & HECKSCHER LLP
One Liberty Place
Philadelphia, PA 19103-7396
Fax: (215) 979-1020
Lawrence N. Gang
11330 Olive Street Road
P.O. Box 419039
St. Louis, MO 63141
Fax: (314) 567-0602
DUNCAN DOWLING, III
ROGERS, DOWLING, FLEMING, & COLEMAN, P.A.
P.O. Box 3427
34 East Pine Street
Orlando, FL 32802
Fax: (407) 425-8536
ATTORNEYS FOR THE DEFENDANT
2. Defendant may select an employee (e.g. Director of Diversity) to act as the corporate compliance official within the company and to participate in the implementation of this Decree for purposes of continuing such practices after the termination of this Decree. It is contemplated that defendant's corporate compliance official will work cooperatively and constructively with the Compliance Officer. However, with respect to implementation of this Decree, such employee shall be under the direct supervision of the Compliance Officer and shall have no authority to override, limit, or change the terms of this Decree or the Compliance Officer's authority provided in this decree. Furthermore, such employee shall be subject to the same confidentiality requirements as required of the Compliance Officer regarding such matters as, complaint investigation and testing. If such employee fails to comply with the confidentiality requirements and/or the terms of this Decree to the satisfaction of the Compliance Officer, or the United States, he/she shall be excluded from any further participation in the implementation of the terms of this Decree.
Filed - November 6, 2000