EEOC searches for plaintiffs in cases filed without named victims; are they 'hybrid' actions?
The Equal Employment Opportunity Commission is inviting potential plaintiffs to come forward in pending class actions that were filed by the agency without identifying any alleged bias victims.
A 2011 hiring discrimination suit against Bass Pro Outdoor World was the first class action of its kind in which the EEOC did not initially identify any victim by name, the National Law Journal reports, citing a judge’s findings. The EEOC suit instead cited statistical evidence suggesting that the retailer’s hiring of minority applicants was at a rate far below their availability. The EEOC has filed an amended complaint identifying about 200 alleged victims after the judge dismissed part of the initial nine-page suit without prejudice.
The EEOC sued Bass Pro Outdoor World for two alleged Title VII violations. One is based on Section 706, which authorizes suit on behalf of named victims. The other is based on Section 707, which allows suits based on statistics showing a pattern and practice of discrimination. Section 707 cases don’t require trial by jury, and the remedies are limited to back pay and injunctive relief.
U.S. District Judge Keith Ellison of Houston allowed the Section 707 claim, but ruled the EEOC can’t pursue “a hybrid pattern-or-practice claim that melds the respective frameworks,” the story says. The EEOC filed a motion for reconsideration that argues there is no hybridization. “The issue is whether those two claims, which involve precisely the same facts, can be proved the same way, or have to be proved differently and separately, and more than once,” the agency contends.
The EEOC is also seeking plaintiffs in pending class actions against Mavis Discount Tire, Performance Food Group Inc. and Texas Roadhouse Inc. restaurants. The Texas Roadhouse case also did not name any initial victims, according to the story. Filed nine days after the Bass Pro Shops case, the suit against Texas Roadhouse says only 1.9 percent of “front of the house” employees such as hostesses and servers are over age 40.