TARGETED: Enforcers cited Bass Pro Outdoor World for a dearth of minority employees. (James M. Thresher / The Washington Post / Getty Images)
When the federal government sued Bass Pro Outdoor World for hiring discrimination, it offered statistics showing a dearth of minority employees, damaging comments from the retailer’s managers such as “we don’t hire niggers,” and asked for $300 million in potential damages.
But the original complaint lacked one thing: named victims.
The U.S. Equal Employment Oppor­tun­ity Commission sued the Springfield, Mo.-based national retailer for hiring discrimination in 2011 — the first class action of its kind where the agency did not iden­tify a single plaintiff up front, according to U.S. District Judge Keith Ellison, presiding over the case in Houston.
By law, the EEOC doesn’t have to wait for someone to come forward with a discrimination complaint. The agency can act on its own by filing a commissioner’s charge, or initiating a directed investigation in age-discrimination or equal-pay cases.
The Bass Pro suit raises legal questions that go to the heart of the agency’s duty to seek a settlement before suing, and to the EEOC’s ability to invoke two overlapping but procedurally distinct statutes under the Civil Rights Act of 1964.
The case also spotlights the EEOC’s practical difficulty in finding victims of hiring discrimination — the top enforcement priority under the agency’s new strategic plan. “A lot of people don’t know why they’re not hired,” EEOC assistant general counsel Jerome Scanlan told The National Law Journal. “We feel we have an important role to play here.”
To build a case, the EEOC may rely in part on statistical evidence culled from reports that all employers with 100 or more workers (and federal contractors with 50 or more) must file annually with the agency, Scanlan said. The reports show the sex and race or ethnicity of workers by job category.
The agency on its website is soliciting plaintiffs for the Bass Pro case and three other pending class actions: against Mavis Discount Tire and Performance Food Group Inc. for allegedly failing to hire qualified women and against Texas Roadhouse Inc. restaurants for alleged age discrimination in hiring. “We are looking for people who may have been affected by the unlawful discrimination alleged in these suits,” the agency said.
In the Texas Roadhouse case, filed in U.S. district court in Massachusetts nine days after Bass Pro, the EEOC also initially failed to identify any plaintiffs by name. It alleged instead that only 1.9 percent of “front of the house” employees — hostesses, servers, bartenders — at the Kentucky-based steakhouse chain were older than 40. “This figure is well below the protected age group’s representation in the general population of defendants’ locations,” the complaint said.
But as the Bass Pro case shows, filing a class action without first naming any so-called “aggrieved individuals” can open the agency to new avenues of attack.
The case began in February 2007, when then-Commissioner Stuart Ishi­maru charged the 15,000-employee, privately held retailer with failing to recruit or hire black and Hispanic employees in violation of Title VII of the Civil Rights Act, which prohibits employers from discriminating on the basis of sex, race, color, national origin or religion. Specializing in fishing, hunting and other outdoor sporting gear, the Bass Pro stores are filled with stuffed bears, moose, deer and boars. Along with hundreds of fishing poles, walls of rifles and dozens of bows, there are doormats with slogans like “Trespassers will be shot. Survivors will be shot again!” and camouflage everything — from baby booties to easy chair recliners.
For nearly four years, the EEOC investigated Bass Pro and then, as required by Title VII, attempted to settle, or conciliate, the case.
The process was distinguished by “marked acrimony,” Ellison wrote in an order earlier this year. “The court cannot say why this was or where things went wrong,” he wrote. “It now seems clear both sides could have engaged more skillfully and respectfully.”
Represented by a team from King & Spalding led by Atlanta partner Michael Johnston, Bass complained that the EEOC refused to identify potential plaintiffs before filing suit and “never provided Bass Pro with the most basic information concerning the claim of any aggrieved individual (such as the person’s name, the position sought, any circumstances suggesting discrimination and the basis for any alleged emotional harm), let alone an ability to respond to such claim or attempt to resolve it through conciliation.”
Johnston declined to comment. A Bass Pro spokeswoman did not respond to a request for comment.
Using statistical evidence, the EEOC said Bass Pro had a “shortfall” of 1,000 black and Hispanic hires at its roughly 60 stores around the country. The agency wanted $30 million to settle, arguing that Bass Pro could be on the hook for $300 million if the case went to trial — a maximum penalty of $300,000 for each currently unidentified person who would have been hired but for the discrimination. Bass counteroffered to pay $1.7 million, declaring that it wouldn’t up its offer without more information about the claims. With negotiations at an impasse, the EEOC sued Bass Pro in September 2011. The agency alleged in its nine-page complaint that the company had engaged in “a pattern or practice of unlawfully failing to hire black and Hispanic applicants for positions in its retail stores nationwide.” It also alleged retaliation and record-keeping violations.
The EEOC’s Scanlan said the agency knew of specific hiring discrimination victims but didn’t identify them because “we didn’t think we were required to under federal pleading standards,” Scanlan said.”It was a choice.”
The judge in 2012 dismissed much of the complaint “because EEOC failed to allege even one plaintiff with any particularity.” Still, Ellison allowed the agency to try again.
The EEOC responded in July 2012 by filing a 247-page amended complaint naming about 200 plaintiffs, but Bass Pro continues to attack the agency for failing to adequately identify the class members.
Last month, the company asked Ellison to toss the heart of the case on the ground that the EEOC did not try to settle in good faith. Bass Pro has been left to “sift through a million application files, guess which applicants were black or Hispanic, and then guess which of those the EEOC contends were denied a job because of intentional discrimination,” Johnston wrote. The agency countered that Bass Pro has destroyed evidence, refused to provide names of at least 50 employees who complained of discrimination and “imposed unreasonable time limitations” on depositions. Ellison’s ruling is pending.
The future of the case in large part will turn on what Title VII provisions the EEOC is able to invoke. The agency cites both Section 706, which permits it to sue on behalf of flesh-and-blood discrimination victims, and Section 707, which empowers it to go after businesses engaged in a “pattern or practice” of discrimination.
Ellison has approved the EEOC’s Section 707 claims — but only back pay and injunctive relief are available under that provision, and there’s no trial by jury. Ellison ruled that the EEOC “cannot bring a hybrid pattern-or-practice claim that melds the respective frameworks.” In a pending motion, the agency has asked him to reconsider. “There is no hybridization,” it argued. “The issue is whether those two claims, which involve precisely the same facts, can be proved the same way, or have to be proved differently and separately, and more than once.”
Contact Jenna Greene at firstname.lastname@example.org.