What is the EEOC’s obligation to conciliate and disclose the data, methodology, comparators, and damage calculations used in its claim against Bass Pro?
On March 4, 2014, the US District Court for the Southern District of Texas denied Bass Pro’s motion to dismiss the Equal Employment Opportunity Commission’s (EEOC) case against it on grounds that the EEOC did not engage in good faith conciliation efforts by not sharing information on the data it used and its methodology. The court noted that “both sides could have engaged more skillfully and respectfully [in conciliation efforts].”
The court ruled that the EEOC could proceed with its 707, or pattern or practice action, against Bass Pro for alleged “pervasive discrimination against minority applicants and employees.” In regard to EEOC’S 706 action, or individual/class failure-to-hire action, the court ordered a 30-day stay for renewed settlement efforts, and stated that the EEOC could not include any individuals who had applied to Bass Pro after conciliation had failed.
The dispute between the EEOC and Bass Pro in the 707 claim hinged on an impasse over the use of data, statistics, and expert analysis. The EEOC’s analysis showed a shortfall of 1,000 black and Hispanic hires, and computed damages at $30 million. Bass Pro, on the other hand, counteroffered $1.7 million and refused to settle with the EEOC without more information on how the EEOC calculated damages or the EEOC’s methodology and data used in their statistical claim, including identification of the geographical areas used and the comparator (i.e. the competitor its hiring data had been compared to). The court while acknowledging that it wasn’t “particularly impressed” by the EEOC’s conciliation efforts, ultimately concluded that it did not rise to the level of “bad faith” and that “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.”
Regarding the 706 action, for allegations of failure to hire minorities, the court agreed that the EEOC should have divulged more information regarding
the outline of the class, concluding that had Bass Pro “had a better sense of how the class was comprised, it could have helped to weed out claimants
who had in fact been hired or whose claims did not arise until after the Commission issued its Letter of Determination,” Furthermore without information
regarding the “nature, extent, location, time period, and persons involved,” Bass Pro did not have enough information to reasonably estimate compensatory
damages. The Court then ordered the stay for renewed settlement efforts on the 706 claims. Contact our experts in Employment Discrimination for further information.