Bass Pro Shops Hiring Bias Case to Continue

HOUSTON (CN) - Bass Pro Shops failed to refute charges it discriminates against minority job applicants, but a federal judge urged the company to press its argument that it cannot be sued on behalf of unidentified victims.

The Equal Employment Opportunity Commission's case against Bass Pro Outdoor World LLC, parent company of Bass Pro Shops, dates back to 2007 when it issued a commissioner's charge based on allegations that the retailer discriminated against black applicants.

The agency amended the charge in 2008 to include allegations that Bass Pro also rebuffed female, Hispanic and Asian applicants.

Title VII of The Civil Rights Act requires the EEOC to first "endeavor to eliminate any such alleged unlawful employment practice by informal methods of conference, conciliation and persuasion."

But after years of unproductive settlement talks the agency sued Bass Pro in September 2011, accusing the Missouri-based company of a "pattern or practice of unlawfully failing to hire black and Hispanic applicants."

To prove its case the EEOC analyzed hiring data supplied by Bass Pro and found the company had a shortfall of 1,000 black and Hispanic hires compared to its competitors.

The agency claimed the odds of such a shortage of black and Hispanic hires were less than one in a million.

U.S. District Judge Keith Ellison refused to dismiss the case in March and ordered a stay for settlement talks on the EEOC's claims that Bass Pro had violated Section 706 of the Civil Rights Act by failing to hire minorities.

But the negotiations went nowhere and Bass Pro filed a reprisal of its dismissal motion, arguing that the EEOC had shown bad faith during the stay, and failed to adequately investigate its claims before filing suit.

The EEOC, meanwhile, urged Ellison to reconsider a previous ruling in the case that it could not use Supreme Court precedent from International Brotherhood of Teamsters v. United States to prove its section 706 claims.

In the International Brotherhood case the high court found that once the named plaintiff in a pattern-or-practice discrimination case proves the employer discriminated, all affected class members are entitled to relief.

Ellison backtracked Wednesday and wrote that his "earlier ruling was in error and that ... the commission can employ the Teamsters framework to prove its § 706 claims."

Bass Pro contended that using the Teamsters precedent "would render § 707 superfluous" and go against a longstanding principle that "terms in a statute should not be considered so as to render any provision of that statute meaningless or superfluous."

Section 706 of the Civil Rights Act pertains to the EEOC's "power... to prevent unlawful employment practices," while Section 707 specifically states when a company "is engaged in a pattern or practice" of employment discrimination the EEOC can sue it.

Ellison agreed with the EEOC's citation of 6th Circuit precedent in Serrano v. Cintas Corp., where the appellate court decided "relevant Supreme Court precedent suggests that the exclusion of pattern-or-practice language from § 706 does not mean that the EEOC may utilize a pattern-or-practice theory only when bringing suit under § 707. Instead, it suggests that the inclusion of the language in § 707 simply means that the scope of the EEOC's authority to bring suit is more limited when it acts pursuant to § 707."

In its dismissal motion, Bass Pro also questioned whether the EEOC can sue on behalf of unidentified people.

While admitting that it is a "very close question" Ellison determined that he is "not fully persuaded that the commission is barred from bringing § 706 claims on behalf of unidentified victims."

He did, however, urge Bass Pro to file a motion for an interlocutory appeal to revisit the matter.

Though Ellison sided with the EEOC in the 47-page ruling he conceded that guidance from the appellate courts would be much appreciated.

"The disputes presented by these two motions reflect a fundamental disagreement as to the role that the commission is to play in the vindication of rights guaranteed by Title VII and the scope of its authority to represent those who may have been aggrieved by unlawful employment practices ... Indeed, this is an area of law ripe for further illumination from the appellate courts. All of this is to say that, while the Court ultimately sides with the EEOC on both motions, it is fully sensitive to the strength of the antithesis," the judge wrote.

Bass Pro's attorney, Michael Johnston with King & Spalding of Atlanta, was not immediately available for comment.

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