In hard-fought litigation ongoing since September 2011, Bass Pro Outdoor World, LLC, will pay $10.5 million and provide other relief to settle pattern-or-practice allegations that the retailer of fishing, camping, and hunting equipment and apparel had a nationwide practice of discriminating against African-American and Hispanic job applicants in hiring—and retaliated against those who opposed. The company also purportedly failed to follow federal recordkeeping laws and regulations. The case went up to the Fifth Circuit and back on the Springfield, Missouri-based company’s unsuccessful contention in the district court that the EEOC could not bring a pattern-or-practice claim under Section 706 of Title VII, which is typically used in suits on behalf of individuals.
In a case of first impression in the Fifth Circuit, Bass Pro argued that the EEOC must instead rely on Section 707—which authorizes “pattern or practice” actions but not individual damages. A panel of the Fifth Circuit held in 2016 that the EEOC could bring pattern-or-practice claims under Section 706. On April 28, 2017, with a seven-to-seven vote, the Fifth Circuit denied Bass Pro’s petition for rehearing en banc. Judge Jolly dissented, joined by five judges, arguing that the panel circumvented Supreme Court and Fifth Circuit precedent and expanded the EEOC’s powers beyond the bounds of Title VII and case law. Judge Higginbotham wrote a response to the dissent, and Judge Jones followed by briefly noting that the response should not be confused with a precedential opinion.
Consent decree. Under the consent decree resolving the case, Bass Pro will deposit $10,500,000 into a settlement fund that will be administered by a third-party administrator for purposes of disbursing monetary relief for eligible claims. Eligible claimants include Black and/or Hispanic individuals who applied with Bass Pro at one of its retail stores and were either listed in the EEOC’s first amended complaint as a potential hiring complainant, or applied between February 20, 2007, and April 30, 2010, and were not hired within one year. There are other claim-related requirements. Under the decree, 75 percent of each claimant’s distribution will constitute compensatory damages, with the remaining 25 percent to be considered back pay.
The EEOC said that the nationwide agreement settling the case is aimed at strengthening and improving Bass Pro’s hiring and recruiting practices of African-Americans and Hispanics. A central focus of the agreement is strengthening Bass Pro’s diversity efforts and its commitment to nondiscriminatory hiring, including appointment of a director of diversity and inclusion, affirmative outreach efforts to increase diversity in its workforce, updated EEO policies and hiring practices, and annual EEO training for management and nonmanagement employees.
Bass Pro denies the EEOC’s allegations in entirety. The settlement is a compromise of disputed claims in order to avoid further disruption, costs, delay, and protracted litigation expense; it is not an admission of liability on the part of Bass Pro, the consent decree states.
The EEOC filed its lawsuit in the Southern District of Texas; the case is No. 11-CV-3425.
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