Legal Updates

  • July 31, 2017

Fred J. Bissinger, Legislative Director, TN SHRM
Regional Managing Partner
Wimberly Lawson
fbissinger@wimberlylawson.com
615-727-1000

Bass Pro to pay $10.5 million to settle EEOC hiring discrimination and retaliation suit

HOUSTON – Springfield, Mo.-based Bass Pro Outdoor World, LLC, a leading retailer of fishing, camping, and hunting equipment and apparel, has agreed to pay $10.5 million and provide other significant relief to settle a hiring discrimination and retaliation lawsuit brought by the U.S. Equal Employment Opportunity Commission (EEOC), the agency announced today.

The nationwide agreement seeks to strengthen and improve Bass Pro’s hiring and recruiting practices of African-Americans and Hispanics, and resolves a pattern-or-practice lawsuit filed by the EEOC on Sept. 21, 2011. The EEOC’s suit charged that the company discriminated in hiring at its retail stores, unlawfully retaliated against employees who opposed practices they believed to be unlawful, and failed to adhere to federal record-keeping laws and regulations.

A central focus of the agreement is strengthening Bass Pro’s diversity efforts and its commitment to non-discriminatory hiring, including appointment of a director of diversity and inclusion, affirmative outreach efforts to increase diversity in its workforce, updated EEO policies and hiring practices, and annual EEO training for management and non-management employees.

“The EEOC is pleased to have reached what the agency believes to be a fair resolution,” said EEOC Deputy General Counsel James Lee. “We look forward to working with Bass Pro in implement­ing the consent decree.”

EEOC Houston District Office Regional Attorney Rudy Sustaita said, “The EEOC commends Bass Pro for its efforts in bringing the pending litigation to a conclusion, and for its commitment to hiring a diverse workforce.”

The EEOC is responsible for enforcing federal laws prohibiting employment discrimination. Further information about the EEOC is available on its website at www.eeoc.gov.

  • July 31, 2017

Fred J. Bissinger, Legislative Director, TN SHRM
Regional Managing Partner
Wimberly Lawson
fbissinger@wimberlylawson.com
615-727-1000

Are Certain Words Now Illegal Under Title VII?

On July 14, the Third Circuit issued its opinion in Castleberry v. STI Group, Case No. 16-3131 reversing the district court that had granted a motion to dismiss a hostile work environment claim. In the case, two African-American employees claimed they were terminated based on their race and that they were subjected to a racially hostile work environment. The hostile work environment claim consisted of a supervisor, on one occasion, saying to employees, including the two plaintiffs that if they "nigger-rigged" the fence, they would be fired. They also claim that there were racial comments on a sign-in sheet "on several occasions." The Circuit Court found that the single use of a racial slur by the supervisor was sufficient to create a hostile work environment, particularly when it was followed by a threat of termination. The court reasoned that the single use of the racially charged term was sufficiently extreme to be "severe" under the "severe or pervasive" standard, at least at the motion to dismiss stage.

This "one bad word is enough" standard is reflected in the EEOC's proposed harassment guidance from earlier this year. While the case was decided on a Motion to Dismiss and not summary judgment, it is enough to take note that the standard for what is "severe or pervasive" may be coming down and certain words are now de facto illegal under Title VII. Employers need to be vigilant, especially with supervisors, when it comes to what is appropriate language in the workplace. Because the Farragher affirmative defense is not available to employers in cases of a single incident hostile work environment claim, employers will be liable for any damages that arise from the use of such racial or sexual slurs in the workplace. So employers should beware, the old nursery rhyme no longer holds true, "sticks and stones may break my bones, but words can never hurt me;" a single inappropriate work, phrase, or joke may cost you a bundle.

  • NLRB – Recent developments on the “Persuader Rule.”   Given the recent ruling by a federal judge in Texas, which stays implementation of this Rule, it appears that the Trump administration will have an opportunity to effectively kill this change – assuming it decides to do so.
 
  • DOL/WHD – The new overtime rules will not take effect on December 1, 2016, as a federal court in Texas has issued a nationwide injunction against their taking effect.  The new rules' fate is now in question.  The courts, Congress and the incoming Trump administration will all have a say in what happens with overtime standards for white collar employees.
 
  • EEOC – Issued its 2017-2021 Strategic Enforcement Plan on 10.17.16.  Its focus is similar to the previous plan.Given the EEOC’s current Charge statistics, it appears clear that harassment (see Study Results issued in June 2016), retaliation (see Guidance issued in August 25, 2016), national origin (see Guidance issued November 21, 2016), and disability related issues (see Letter regarding Leave of Absence as a Form of Reasonable Accommodation under the ADAAA issued May 16, 2016) will remain to primary issues moving forward. Eliminating barriers for recruiting and hiring;Preventing systemic harassment.Preserving access to the legal system; andEnsuring equal pay protections;Addressing select emerging and developing issues;Protecting vulnerable workers;The EEOC also issued two Final Rules pertaining to employer wellness programs.  These Rules provide guidance on how the ADAAA and GINA apply to wellness programs.