By Jenna Greene, The National Law Journal

When the federal government sued Bass Pro Outdoor World for hiring discrimination, it offered statistics showing a dearth of minority employees, damaging comments from the retailer’s managers such as “we don’t hire niggers,” and asked for $300 million in potential damages.

But the original complaint lacked one thing: named victims.

The U.S. Equal Employment Oppor­tun­ity Commission sued the Springfield, Mo.-based national retailer for hiring discrimination in 2011 — the first class action of its kind where the agency did not iden­tify a single plaintiff up front, according to U.S. District Judge Keith Ellison, presiding over the case in Houston.

By law, the EEOC doesn’t have to wait for someone to come forward with a discrimination complaint. The agency can act on its own by filing a commissioner’s charge, or initiating a directed investigation in age-discrimination or equal-pay cases.

The Bass Pro suit raises legal questions that go to the heart of the agency’s duty to seek a settlement before suing, and to the EEOC’s ability to invoke two overlapping but procedurally distinct statutes under the Civil Rights Act of 1964.

The case also spotlights the EEOC’s practical difficulty in finding victims of hiring discrimination — the top enforcement priority under the agency’s new strategic plan. “A lot of people don’t know why they’re not hired,” EEOC assistant general counsel Jerome Scanlan told The National Law Journal. “We feel we have an important role to play here.”

To build a case, the EEOC may rely in part on statistical evidence culled from reports that all employers with 100 or more workers (and federal contractors with 50 or more) must file annually with the agency, Scanlan said. The reports show the sex and race or ethnicity of workers by job category.

SOLICITING PLAINTIFFS

The agency on its website is soliciting plaintiffs for the Bass Pro case and three other pending class actions: against Mavis Discount Tire and Performance Food Group Inc. for allegedly failing to hire qualified women and against Texas Roadhouse Inc. restaurants for alleged age discrimination in hiring. “We are looking for people who may have been affected by the unlawful discrimination alleged in these suits,” the agency said.

In the Texas Roadhouse case, filed in U.S. district court in Massachusetts nine days after Bass Pro, the EEOC also initially failed to identify any plaintiffs by name. It alleged instead that only 1.9 percent of “front of the house” employees — hostesses, servers, bartenders — at the Kentucky-based steakhouse chain were older than 40. “This figure is well below the protected age group’s representation in the general population of defendants’ locations,” the complaint said.

But as the Bass Pro case shows, filing a class action without first naming any so-called “aggrieved individuals” can open the agency to new avenues of attack.

The case began in February 2007, when then-Commissioner Stuart Ishi­maru charged the 15,000-employee, privately held retailer with failing to recruit or hire black and Hispanic employees in violation of Title VII of the Civil Rights Act, which prohibits employers from discriminating on the basis of sex, race, color, national origin or religion. Specializing in fishing, hunting and other outdoor sporting gear, the Bass Pro stores are filled with stuffed bears, moose, deer and boars. Along with hundreds of fishing poles, walls of rifles and dozens of bows, there are doormats with slogans like “Trespassers will be shot. Survivors will be shot again!” and camouflage everything — from baby booties to easy chair recliners.

For nearly four years, the EEOC investigated Bass Pro and then, as required by Title VII, attempted to settle, or conciliate, the case.

The process was distinguished by “marked acrimony,” Ellison wrote in an order earlier this year. “The court cannot say why this was or where things went wrong,” he wrote. “It now seems clear both sides could have engaged more skillfully and respectfully.”

IMAGE: TARGETED: Enforcers cited Bass Pro Outdoor World for a dearth of minority employees. James M. Thresher / The Washington Post / Getty Images

For more on this story go to: http://www.nationallawjournal.com/id=1202662993360/No-Plaintiffs-No-Problem#ixzz37STsscLl