On July 26, 2017, the U.S. Equal Employment Opportunity Commission (EEOC) announced a $10.5 million settlement with Bass Pro Outdoor World, LLC for an alleged hiring discrimination and retaliation lawsuit filed by the agency almost six years ago, on September 21, 2011.
Bass Pro is a nationwide retailer of sporting goods, apparel, and other miscellaneous products headquartered in Springfield, Missouri.
EEOC alleged that Bass Pro discriminated against qualified African-Americans and Hispanics since at least November 2005 by routinely denying them positions, such as cashier, sales associate, team leader, supervisor, manager, and other positions at many stores nationwide. The claim was based on statistical and anecdotal evidence. The lawsuit specifically mentioned managers in the Houston area and in Louisiana making overtly racially derogatory remarks, acknowledging the discriminatory practices, including stating that hiring blacks did not fit the corporate profile. It also alleged that the discrimination went as far as the founder, John Morris, citing a comment attributed to him.
The EEOC further alleged that Bass Pro unlawfully destroyed or failed to keep records related to employment applications and internal complaints. The agency also alleged the company retaliated against employees who opposed the company’s unlawful practices by firing them or forcing them to resign.
The lawsuit asked for back pay on behalf of the victims; compensatory and punitive damages and other relief, such as the implementation of fair recruitment and hiring procedures; and reinstatement or rightful-place hiring of mistreated job applicants and former employees.
In addition to back pay, the consent decree requires the establishment of an Office of Diversity and Inclusion led by a director who will oversee Bass Pro’s compliance with the agreement. The company must provide annual EEO training for management and non-management employees. Also, Bass Pro is now required to post job advertisements in black and Hispanic communities and conduct job fairs in minority communities.
Bass Pro released a statement indicating part of the $10.5 million settlement would be used for a comprehensive program to enhance minority recruitment. Additionally, a portion of the $10.5 million payment “may be devoted to programs that engage inner city youth in outdoor activities, as the company has been doing for more than 25 years.” Despite the settlement, the court notes that Bass Pro has denied all allegations and the settlement “should not be construed as an admission of liability.” It is interesting to note Bass Pro is in the process of acquiring competitor Cabela’s, headquartered in Sidney, Nebraska, who reached a very similar agreement with the EEOC in September 2015 to resolve an EEOC Commissioner’s Charge of Discrimination. (These charges are brought by the Commission itself, rather than by individual complainants, and they are rare.) The Cabela’s agreement also requires the appointment of a Director of Diversity and Inclusion reporting to the Chief Administrative Officer of Cabela’s. Cabela’s agreed to establish hiring goals, update EEO policies, and provide annual EEO training for all employees. EEO compliance would also be added as a component in performance evaluations for management and supervisory personnel.
EEOC has also brought action in the past several years against several other retailers including: Dollar General, Abercrombie & Fitch, Albertson’s, Von Maur, Sally Beauty Supply, LLC., Auto Zone, Walgreens, and Target. See a comprehensive list of EEOC Race/Color cases here.
What is the takeaway for employers?
First, it goes without saying, but I will say it nevertheless, do not discriminate. Make sure your company’s employment practices are in line with your EEO/Affirmative Action statement or policy.
Communicate. Keep regular communication with managers and supervisors; they are your front line. Make sure they know about the company’s practices surrounding fair employment – items such as interview guidelines, appropriate documentation procedures, complaint responses, and recognizing potential discrimination or harassment.
Outreach. Make your outreach and recruitment efforts inclusive. Ensure that Talent Management is reaching out to all communities to find job seekers who are interested and qualified for your job openings. Make these efforts active. It is not always enough to just post jobs on a variety of job boards; you may have to actually go out and meet potential applicants at job fairs and community events.
Investigate. Take swift action to investigate and document internal complaints about alleged discrimination, harassment, and retaliation. One of the best ways to resolve an employee complaint is to keep it internal. Employees often go outside the company when they feel the company is ignoring their complaint.
Analyze. Use statistical measures to analyze your hiring decisions to make sure your practices do not or will not have a discriminatory impact on any protected group when looked at in the aggregate, and to identify if a particular step of your selection process is the problem.
Document. Always remember to document, document, document, and retain all relevant documents for the prescribed period. Generally, applications and related documents should be kept for two years after the employment decision is made; however, the period may be extended by certain circumstances, such as an EEOC investigation or a compliance review conducted by the Office of Federal Contract Compliance Programs (OFCCP) if your company is a federal contractor.
These are all good business practices that will help your company succeed.