finding the documents were privileged, the documents also would be protected underthe work product protections because the majority of the withheld documents werecreated “because of” the prospect of litigation and would not have been “created insubstantially similar form” if litigation were not anticipated. Id. at *51. Accordingly, thecourt denied the EEOC’s motion to compel.H.EEOC Litigation Over Emerging Discrimination IssuesAn important attribute of the EEOC litigation enforcement program concerns pushingthe legal envelope on emerging issues. In 2022, this manifested in the Commission’slitigation over LGBTQ issues.In EEOC v. Kroger Ltd., 2022 U.S. Dist. LEXIS 111587 (E.D. Ark. June 23, 2022), theCommission filed an action on behalf of two charging parties, Brenda Lawson and TrudyRickerd, alleging that the defendant discriminated against them on the basis of theirreligion (Christian) in violation of Title VII. The parties filed cross-motions for summaryjudgment, and the court denied the motions. In 2019, the defendant enacted a newdress-code policy in which employees were required to wear aprons that had anembroidered small dark blue, light blue, yellow, and red heart. Lawson and Richerdviewed the heart symbol as an endorsement of the LGBTQ community and refused towear the apron with the embroidered heart because it was against their Christianreligious beliefs. The defendant thereafter terminated Lawson and Rickerd’semployment for multiple dress-code violations. The EEOC contended that thedefendant terminated Lawson and Rickerd’s employment in discrimination of theirsincerely held religious beliefs. The Court found that rational jurors would need todetermine whether it was reasonable to believe that the defendant’s customers wouldthink that the multi-colored heart was a pro-LGBTQ symbol. The court therefore deniedthe cross-motions for summary judgment.I.EEOC Litigation Over Workplace HarassmentA central pillar of the Commission’s strategic focus concerns rooting out systemicworkplace harassment. In 2022, several of its lawsuits asserted such claims.In EEOC v. Autos Of Dallas Ventures, Inc., 2022 U.S. Dist. LEXIS 174254 (E.D. Tex.Mar. 31, 2022), the Commission filed an action on behalf of charging party JonathonSellers, a former employee, alleging that the defendant discriminated against him on thebasis of his race (African-American) in violation of Title VII. The defendant filed amotion to dismiss pursuant to Rule 12(b)(6), and the court granted the motion. TheEEOC contended that during a holiday party attended by Sellers, the defendant’smanagement team gave him a trophy awarding him “Least likely to be seen in the dark.”Id. at *2. The EEOC further asserted that after the holiday party, Sellers was harassedwith questions and comments about the trophy, including comments regarding his raceand skin color. Sellers ultimately left his employment with the defendant. The EEOCthereafter filed suit alleging that the defendant created a hostile work environment andconstructively discharged Sellers. The defendant argued that the issuance of the trophydid not meet the Fifth Circuit's standard for sufficiently severe or pervasive conduct to31© Duane Morris LLP 2023The EEOC Litigation Review – 2023
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