self driving car by  Steve Jurvetson flickrHere’s a novel question for you: What do so-called “autonomous” cars have in common with class action federal employment discrimination lawsuits?

As an admitted car guy, I am often taken to drawing parallels between the automotive world and the legal profession (and just about everything else in life). So when I recently came across a lawsuit filed by the EEOC, my mind wandered from the courtroom to the road. Let me explain.

First, as you may know, an autonomous car is a car that literally drives itself — a “self-driving” car. If you’ve been reading too many car magazines like me, you’ve probably read about ongoing research and development efforts by various car manufacturers to develop a truly self-driving, pilot-less vehicle. Many automotive experts predict that in a relatively short period of time — say 10 years from now, perhaps sooner — such vehicles will be commonplace on roads in the U.S. and elsewhere.

EEOC v. Bass Pro Outdoor World

Back to the law: In 2011, the EEOC filed a federal class action lawsuit in Texas against the retailer Bass Pro Outdoor World, which operates around 60 Bass Pro Shops around the country. The lawsuit (Civil Action No. 4:11-CV-3425, U.S. District Court for the Southern District of Texas, Houston Division) accused the company of hiring discrimination against Black and Hispanic job applicants. What made this lawsuit unique — and one that drew a parallel to self-driving cars in my mind — was that this may be the first class action of its kind where the EEOC did not name a single plaintiff up front. In other words, no plaintiffs! So, who was behind the wheel?

It turns out that no one was. The EEOC tried to justify its decision to proceed without any named plaintiffs by arguing that it is difficult to find victims of hiring discrimination, but as the nation’s top enforcement agency it has a legal obligation to combat workplace discrimination even where no one has come forward. Additionally, the agency is actively soliciting plaintiffs for the case and several other pending class actions on its website, and states “We are looking for people who may have been affected by the unlawful discrimination alleged in these suits.”

Bass Pro’s defense focuses on its argument that the EEOC has refused to identify potential plaintiffs, and has never provided the company with names or other identifying information that would Bass Pro to investigate the claims and determine what, if any, corrective action needed to be taken. The EEOC has responded with statistical data that it claims supports its position that Bass Pro has a “shortfall” of minority employees at its stores around the country, even though the agency failed to provide any names when it filed the lawsuit.

The Bass Pro lawsuit has had many twists and turns since 2011, and raises a number of novel legal questions, including how a federal lawsuit can proceed in court without any named plaintiffs or victims. Title VII authorizes the EEOC to sue on behalf of victims of illegal workplace discrimination, and the law also allows the agency to sue businesses that are engaged in a pattern or practice of discriminatory conduct. But, despite this statutory authority, the court agreed with Bass Pro, dismissing much of the lawsuit in 2012 because the EEOC “failed to allege even one plaintiff with any particularity.” But the dismissal was without prejudice, so the EEOC was allowed to refile, which it did—eventually naming about 200 plaintiffs.

Still, recently Bass Pro asked the court to dismiss the lawsuit again, arguing that because of the EEOC’s alleged failure to adequately identify aggrieved individuals, the company has been forced to “sift through a million application files” and try to speculate as to which applicants were minorities and which ones may have been denied employment because of illegal discrimination. The motion to dismiss is pending.

Autonomous, self-driving cars may be reality in the not-too-distant future, and if the EEOC lawsuit is successful, lawsuits without named plaintiffs may find their way into the nation’s courts. Stay tuned and keep your seat belts fastened!

Photo Courtesy of Steve Jurvetson on Flickr