For six years, the EEOC and Bass Pro Shops have been battling in court over whether the outdoor equipment retailer violated federal racial discrimination and retaliation laws. Now the parties to the Bass Pro discrimination claims have reached a $10.5 million settlement, which promises to resolve the nationwide class lawsuit that has plagued the company and its potential and former employees for years.

In this blog post I will review the Equal Employment Opportunity Commission’s (EEOC’s) settlement with Bass Pro Outdoor World under Title VII of the Civil Rights Act. I will explain what a “pattern-or-practice” lawsuit is, and how it can be used to protect employees from racial discrimination.

The EEOC’s Lawsuit Against Bass Pro Outdoor World

In 2011, the EEOC filed a complaint in federal district court claiming that Bass Pro Outdoor World, LLC, had engaged in a pattern or practice of racial discrimination against African-American and Hispanic applicants. The sporting-goods retailer has 82 stores across the country. According to the EEOC’s allegations, the hiring policies or practices used in these stores resulted in the company rejecting qualified job applicants because of their race and retaliating against employees who spoke out against the practice. The EEOC said Bass Pro had been discriminating in its hiring practices since at least November 2005, denying qualified Black and Latino / Latina applicants retail positions including:

• Cashier
• Sales associate
• Team leader
• Supervisor
• Manager

The Complaint alleged that this pattern or practice violated Title VII of the Civil Rights Act of 1964, which prohibits discrimination based on race and national origin. The law also protects employees from retaliation based on their complaints and requires companies to maintain certain employment records. But the EEOC said that Bass Pro had failed on all three requirements.

What Is a Pattern-or-Practice Lawsuit?

The EEOC’s complaint against Bass Pro included “pattern-or-practice” claims that provide relief to a class of employees and applicants of the company. It can be used where a company repeatedly and regularly violates the statute (beyond isolated incidents). It can be used in cases where a company’s pattern of behavior (such as hiring one race over another) does not become apparent right away, but only by reviewing the behavior over time.

Class Action Lawsuit or Pattern-or-Practice?

The EEOC has the authority to file these pattern or practice claims directly under Title VII, rather than meeting the requirements of a formal class action lawsuit. Class actions usually must be so large that naming individual plaintiffs would be challenging. There are also other complex requirements an employment discrimination attorney must meet before one lawsuit can represent the interests of an entire class of people, many of whom may not know the case is happening until it is done. Using a pattern-or-practice lawsuit, the EEOC can file one lawsuit on behalf of groups of employees, even without meeting the class action requirements.

Time Limits for Patterns of Employment Behavior

A pattern-or-practice lawsuit also allows the EEOC to avoid certain time limits set on individual racial discrimination cases. Title VII requires a charge to be filed within 180 (or in some states 300 days) of the unlawful event. For example, if a cashier was fired because of her race, she would have to file a complaint with the EEOC and the EEOC would have to file its formal charge within approximately 6 months of the day she was fired. Because employment patterns emerge over time, there is no one date when the unlawful behavior occurred. The EEOC has taken the position that this allows it to file pattern-or-practice lawsuits going back further than 180 or 300 days, because evidence of the illegal racial discrimination wasn’t available at the time.

Limits on Damages under Pattern-of-Practice Lawsuits

The pattern-or-practice lawsuit is not without its limitations. The Civil Rights Act allows individual plaintiffs filing complaints under Section 706 to collect compensatory damages (for costs related to the illegal conduct) and punitive damages (which punish the company for its actions). But Section 707, which applies to pattern-or-practice lawsuits, doesn’t include these forms of damages. If the EEOC files its charge under 707 alone, it could be giving up the employees’ rights to certain kinds of damages available as part of a direct lawsuit.

The Bass Pro Racial Discrimination Settlement

Over the last six years, EEOC vs. Bass Pro has been litigated at the trial court and appellate court levels. An order entered on January 3, 2017, cemented the class of employees and paved the way for litigation to move forward. Then on July 26, 2017, the EEOC announced that it had settled with the retailer for $10.5 million and the promise to make changes at the store and corporate level. The funds will go to employees and applicants who were negatively affected by the store’s hiring policies and retaliatory practices.

Under the settlement, Bass Pro Outdoor World will appoint a director of diversity and inclusion, who will collaborate on hiring and reach out to potential employees in minority communities. It will also update its policies and hiring practices, train management and employees in anti-discrimination practices, and participate in minority-focused job fairs. EEOC Deputy General Counsel James Lee said in the statement:

The EEOC is pleased to have reached what the agency believes to be a fair resolution. . . . We look forward to working with Bass Pro in implementing the consent decree.

An EEOC complaint is often a necessary step for employees seeking compensation for illegal racial discrimination and retaliation. Whether a pattern-or-practice charge or a private lawsuit is best will depend on the employee’s circumstances and goals. At Eisenberg & Baum, LLP, our employment discrimination attorneys understand the options available to employees. If you have been treated differently at work or on a job interview because of your race, we can help you decide the best course of action. Contact Eisenberg & Baum, LLP, today to talk to an attorney and decide how best to protect your rights.