Duane Morris Class Action Review - 2023 - Report - Page 162
an internal investigation of discrimination filed with the defendant’s equal employment
opportunity office. The court denied the motion to compel. The EEOC contended that
the documents sought were related to the discrimination claims at issue. Defendant
contended that the documents were subject to attorney-client privilege because they
were prepared at the direction of the defendant’s counsel and were either prepared by
or sent to attorneys. The EEOC argued that the documents did not seek, contain, or
reflect legal advice, nor were they created in anticipation of litigation at the direction of
counsel. The court found that the documents were privileged as an attorney-client
communication, as the evidence was clear that obtaining legal advice was a “primary
purpose of the internal investigation and the documents from that investigation reflected
on the January 2022 Privilege Log.” Id. at *42. The court concluded that in addition to
finding the documents were privileged, the documents also would be protected under
the work product protections because the majority of the withheld documents were
created “because of” the prospect of litigation and would not have been “created in
substantially similar form” if litigation were not anticipated. Id. at *51. Accordingly, the
court denied the EEOC’s motion to compel.
H.
EEOC Litigation Over Emerging Discrimination Issues
An important attribute of the EEOC litigation enforcement program concerns pushing
the legal envelope on emerging issues. In 2022, this manifested in the Commission’s
litigation over LGBTQ issues.
In EEOC v. Kroger Ltd., 2022 U.S. Dist. LEXIS 111587 (E.D. Ark. June 23, 2022), the
Commission filed an action on behalf of two charging parties, Brenda Lawson and Trudy
Rickerd, alleging that the defendant discriminated against them on the basis of their
religion (Christian) in violation of Title VII. The parties filed cross-motions for summary
judgment, and the court denied the motions. In 2019, the defendant enacted a new
dress-code policy in which employees were required to wear aprons that had an
embroidered small dark blue, light blue, yellow, and red heart. Lawson and Richerd
viewed the heart symbol as an endorsement of the LGBTQ community, and refused to
wear the apron with the embroidered heart because it was against their Christian
religious beliefs. The defendant thereafter terminated Lawson and Rickerd’s
employment for multiple dress-code violations. The EEOC contended that the defendant
terminated Lawson and Rickerd’s employment in discrimination of their sincerely held
religious beliefs. The Court found that rational jurors would need to determine whether it
was reasonable to believe that the defendant’s customers would think that the multicolored heart was a pro-LGBTQ symbol. The court therefore denied the cross-motions
for summary judgment.
I.
EEOC Litigation Over Workplace Harassment
A central pillar of the Commission’s strategic focus concerns rooting out systemic
workplace 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 Jonathon
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Duane Morris Class Action Review – 2023
