Oct. 13 (Bloomberg) -- Bass Pro Outdoor World LLC not only failed to hire black and Hispanic workers, according to a U.S. lawsuit. The fishing and hunting gear retailer also retaliated against employees who complained about the discrimination, the government said.
The charges brought in a Sept. 21 lawsuit by the U.S. Equal Employment Opportunity Commission, and denied by the company, reflect an increase in complaints by workers who say they were punished for objecting to discrimination based on race, sex, age, religion or disability.
Retaliation was cited in 38 percent of complaints filed with the EEOC in the six months ended in March, according to preliminary agency data. That’s up from 36 percent in fiscal 2010 and 28 percent in 2001. The EEOC said it won $431 million in pre- lawsuit monetary awards, settlements and conciliation proceedings involving retaliation from October 2008 through September 2011.
“It’s the flavor of the year, the tort of the day,” Gerald Maatman Jr., a partner at Chicago-based Seyfarth Shaw LLP who represents employers, said in an interview. “Lawyers are asking for millions and millions in punitive damages to teach companies a lesson.”
The EEOC may file lawsuits based on complaints brought to it by workers, and employees also may bring private litigation. Retaliation lawsuits can be especially costly for companies in jurisdictions that have no cap on punitive damages, including New York City and the state of California, Maatman said. The potential for big payouts attracts plaintiffs’ lawyers to such cases, he said.
U.S. Supreme Court decisions have made it easier to bring retaliation suits, and the EEOC is “overreaching in a number of ways in its litigation,” Michael Eastman, executive director of labor-law policy at the U.S. Chamber of Commerce in Washington, the nation’s largest business lobby, said in an e-mail.
“We file lawsuits when we find violations of the law, and as a last resort, after first attempting to conciliate,” Christine Nazer, an EEOC spokeswoman, said in an e-mail. “We do not target specific employers. We are only responding to charges of workplace discrimination that come to us from the public.”
Settlements ranged from $50,000 to at least $2 million in EEOC lawsuits alleging reprisals so far this year, according to a review of agency statements.
Bass Pro’s Response
Bass Pro, a closely held company based in Springfield, Missouri, engaged in a pattern of not hiring Hispanics and blacks for its stores, according to the EEOC lawsuit filed in U.S. District Court in Houston.
The retail chain retaliated against those who opposed the discrimination “by altering the terms, conditions or privileges of their employment, bringing false allegations against them, pressuring to withdraw their complaints, subjecting them to heightened scrutiny, and firing them or inducing their resignations,” according to the lawsuit.
Bass Pro, which has 50 stores in 26 U.S. states and Canada, according to its website, said in a Sept. 21 statement that the charges showed “a troubling tendency by the EEOC to stereotype those who love outdoor sports and support conservation as people who unlawfully discriminate.”
Questions of “discrimination and retaliation are taken very seriously by the company,” Mike Rowland, vice president of human resources, said in the statement. “When violations are discovered, as is inevitable in any large organization with thousands of employees, they are promptly and firmly addressed.”
Claims of racial bias had been the most frequent allegation in discrimination complaints to the EEOC until fiscal 2009, when the categories were tied for a year before retaliation became No. 1. In most cases, retaliation is alleged in tandem with one or more types of discrimination.
Retaliation complaints are rising partly because it can be easier for workers to document that they were punished for complaining than to prove discrimination in the first place, Chris Kuczynski, assistant legal counsel with the EEOC, said in an interview.
Retaliation includes actions that may dissuade employees from bringing a discrimination charge, the Supreme Court ruled in a 2006 decision against Burlington Northern Santa Fe Corp., now part of Warren Buffett’s Berkshire Hathaway Inc.
A high court decision on Jan. 24 against North American Stainless LP, a stainless-steel producer based in Ghent, Kentucky, found third parties such as spouses and fiancées can bring claims if they face reprisals because of a complaint by their partner at the same company.
Seeing More Cases
Those decisions and the EEOC lawsuits mean “employers will be seeing more retaliation cases in the future,” Margaret Fiester, an operations manager at the Alexandria, Virginia-based Society for Human Resource Management, said in an interview.
Lowe’s Cos., the second-biggest U.S. home improvement retailer after Home Depot Inc., agreed last month to pay $120,000 to settle a lawsuit claiming religious bias and retaliation, according to an EEOC statement.
At a Lowe’s store in Morristown, Tennessee, a devout Baptist employee asked not to work on Sunday, the Christian Sabbath. In retaliation, the company scheduled him to work on 27 of 28 Sundays, according to a Sept. 20 EEOC statement.
Lowe’s denies the allegations and seeks to maintain a work environment free of religious discrimination, Karen Cobb, a spokeswoman for the Mooresville, North Carolina-based company, said in an e-mail.
“We believe that, at the time of the former employees’ request, we provided him with alternatives that balanced his needs with the store’s ability to adequately service its customers,” Cobb said.
The EEOC isn’t trolling for retaliation cases, William Lurye, associate general counsel with the AFL-CIO, the largest U.S. labor federation, said in an interview.
“People who are asserting their rights, even if they are wrong, shouldn’t be retaliated against,” Lurye said.
The cases are Equal Employment Opportunity Commission v. Bass Pro Outdoor World LLC, 11-3425, U.S. District Court for the Southern District of Texas (Houston).
EEOC v. Lowe’s Home Centers Inc., 10-00063, U.S. District Court for the Eastern District of Tennessee (Greeneville).
--Editors: Steve Geimann, Larry Liebert
-0- Oct/14/2011 15:26 GMT
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