The EEOC Litigation Review - 2023 - Report - Page 31
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 multi-colored 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
Sellers, a former employee, alleging that the defendant discriminated against him on the
basis of his race (African-American) in violation of Title VII. The defendant filed a
motion to dismiss pursuant to Rule 12(b)(6), and the court granted the motion. The
EEOC contended that during a holiday party attended by Sellers, the defendant’s
management 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 harassed
with questions and comments about the trophy, including comments regarding his race
and skin color. Sellers ultimately left his employment with the defendant. The EEOC
thereafter filed suit alleging that the defendant created a hostile work environment and
constructively discharged Sellers. The defendant argued that the issuance of the trophy
did not meet the Fifth Circuit's standard for sufficiently severe or pervasive conduct to
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© Duane Morris LLP 2023
The EEOC Litigation Review – 2023
