Settlement Possible in Bass Pro Hiring Lawsuit

     HOUSTON (CN) - Bass Pro Shops cannot dismiss claims that it discriminates against minority job applicants but it will get 30 days to reach a settlement, a federal judge ruled.
     The Equal Employment Opportunity Commission sued Bass Pro Outdoor World LLC, parent company of Bass Pro Shops, in September 2011, accusing the Missouri-based outdoor retailer of showing a "pattern or practice of unlawfully failing to hire black and Hispanic applicants."
     After its commissioner's charge in 2007, based on alleged evidence that Bass Pro discriminated against black applicants, the EEOC and Bass Pro engaged in years of fruitless settlement talks.
     In its 2008 amendment of the commissioner's charge, the EEOC added that Bass Pro also turned away female, Asian and Hispanic applicants.
     The EEOC's subsequent investigation and three years of negotiations included three meetings and Bass Pro's production of 230,000 pages of documents. The parties remained far apart on a settlement, however, with the EEOC demanding $30 million, and Bass Pro offering just $1.7 million.
     An EEOC analysis of Bass Pro's hiring practices fuels the dispute.
     Using data supplied by Bass Pro, an EEOC analyst found that, in comparison with its competitors, Bass Pro had a shortfall of 1,000 black and Hispanic hires.
     The agency used the study as a basis for its claim that Bass Pro had violated section 707 of Title VII of the 1964 Civil Rights Act, a so-called pattern-or-practice claim.
     Bass Pro asked for more information about the study but, pointing out the data came from the company itself, the EEOC refused.
     The agency further explained the odds of such a shortfall of black and Hispanic hires were less than one in a million.
     Neither party would budge on their settlement offers so the EEOC deemed the section 707 conciliation efforts a failure and filed suit.
     In its motion to dismiss Bass Pro said the EEOC had failed to engage in good-faith conciliation.
     U.S. District Judge Keith Ellison refused to dismiss the case Tuesday, noting that "this is just the sort of motion that should make courts uneasy."
     Nevertheless Bass Pro failed to show that the EEOC had acted in bad faith by withholding info about its statistical analysis, according to the ruling.
     "Perhaps Bass Pro did not know which competitors its hiring data had been compared to or, with respect to comparisons to census data, which geographical areas the commission had used," Ellison wrote. "But Bass Pro had its own expert; at some point along the way, it could have picked a competitor store, or picked a geographic region, and come up with its own statistics to counter the commission's assessment.
     "Even without producing a statistical finding of its own, Bass Pro could have begun to make more modest requests of the commission. It also could have made a monetary settlement offer more in line with those proposed by the commission and made it contingent upon seeing sufficient statistical support for the commission's claims."
     Prior to filing its lawsuit the EEOC also alleged Bass Pro's failure to hire minorities had violated another part of the Civil Rights Act, section 706.
     The parties' settlement talks on the section 706 claims also reached an impasse when the EEOC refused to provide a description of the 100 individuals the agency had identified as alleged victims of Bass Pro's discrimination.
     While Ellison acknowledged "the EEOC ought to have provided more information" about the class, he would not deem such withholding as evidence of bad faith.
     "The commission decided conciliation had failed barely two weeks after Bass Pro requested the identities of the § 706 victims and without offering a substantive response," the Houston-based judge wrote. "The court believes that to be indicative of premature termination, not bad faith."
     Ellison ordered a 30-day stay for further settlement talks on the 706 failure-to-hire claim but dismissed individuals who had not applied to work for Bass Pro by April 29, 2010, when the EEOC issued its letter of determination.
     Such a letter means the agency has found evidence to support its initial discrimination charge.
     Ellison advised the EEOC to file a fourth amended complaint after the 30-day stay.