EEOC Coca-Cola Bottler Suit Hinges on Harm to Men Left Out (1)

An EEOC lawsuit alleging a Coca-Cola Beverages Northeast Inc. women’s retreat discriminated against men will test a lower standard for proving that a worker experienced harm.

Employees can show “some harm” rather than significant injury to bring a discrimination claim under Title VII of the 1964 Civil Rights Act, under recent US Supreme Court precedent. The not-yet-well-defined bounds of that requirement will be at the center of the Equal Employment Opportunity Commission’s case.

The lawsuit furthers Republican Chair Andrea Lucas’s efforts to challenge race- and gender-focused diversity programs the EEOC deems discriminatory. Though several attorneys and professors agreed the Coca-Cola distributor case may be winnable, some questioned whether targeting a women’s corporate retreat is a good use of limited agency resources.

“Is this the biggest problem of sex discrimination in the workplace?” Katie Eyer, a Rutgers Law School professor, asked. “Most of us would answer that question differently.”

The EEOC’s lawsuit filed in New Hampshire federal court last month said the distributor discriminated against male workers by only inviting women to an “employer-sponsored trip and networking event” at a Connecticut casino. The event included a reception, recreational activities, and executive speakers.

An emailed statement from The Bennett Law Firm P.A., which represents the employer, said the retreat “fully complied with existing EEOC regulation and its public commentary approving of such events.”

The company “finds it disappointing that the EEOC did not conduct a full investigation,” the statement said.

In Muldrow v. City of St. Louis, the Supreme Court said a police sergeant’s forced job transfer qualified as sufficient harm for a discrimination claim, and she need not show it left her “worse off.”

The level of harm needed is somewhere between the “de minimis” level, and “significant,” the justices said in the 2024 ruling.

“The court did not define how much is ‘some harm,’ and this may be one of the cases in which courts explore that question,” said Suzanne Goldberg, a Columbia Law School professor, of the Coca-Cola distributor suit.

“Overall, decisions like Muldrow were down to the benefit of marginalized people who are still experiencing discrimination in this country, even if they might make a case like this more plausible,” Eyer said.

‘Some Harm’

Justice Brett Kavanaugh in a concurrence to Muldrow wrote any worker transferred based on a protected category should “easily be able to show some additional harm,” including through “perks” and “networking opportunities.”

After that ruling, workers don’t need to show they were demoted, fired, or lost money from a workplace decision, they can simply demonstrate they “lost a perk,” said David Miklas, a Florida-based employment attorney.

A resort event and chance to “hobnob with C-Suite people” could fall under those standards, he said.

In a recent LinkedIn post, Lucas said “many employers’ sex-segregated programming entails far more than socializing” and leads to “new girls clubs” like the “old boys clubs” before them.

She compared it to EEOC cases from the 1970s that found companies discriminated by limiting social clubs by race, or racially segregating Christmas parties.

The EEOC didn’t provide further comment on the Coca-Cola bottler case.

“This current EEOC is shining the light back on majority groups and saying no, Title VII doesn’t say only minorities can be victims,” Miklas said.

Employment attorneys have posited that Muldrow will ultimately make it easier for Lucas to target diversity programs, as it opens up employee resource groups or workforce development programs to Title VII claims.

Courts have begun parsing Muldrow in other contexts. A Muslim worker failed to convince the US Court of Appeals for the Eleventh Circuit the psychological threat of discipline from his employer over his efforts to take prayer breaks met the new harm standard. The circuit also rejected a jet mechanic’s attempt to sue for race discrimination after he was assigned unpleasant tasks like cleaning.

Even if the EEOC can show requisite harm in its new case, it still must overcome potential employer defenses that could include having a legitimate business reason for the retreat that wasn’t a coverup for discrimination.

Priorities and Resources

The Coca-Cola distributor case isn’t necessarily the type of suit the EEOC would typically file on behalf of a charging party, Eyer said.

“Even if it were reversed, let’s say women not being invited to lunches or a single event as this was, this is ordinarily not the type of thing the EEOC would prioritize,” she said.

The agency files about a hundred lawsuits annually from tens of thousands of charges it receives. Most charges, including those with meritorious claims, are left to workers to pursue on their own in court.

The EEOC is also at a 45-year low in staffing, creating additional resource concerns.

It’s unclear if there’s a rise in charges filed by men or White workers. The EEOC hasn’t disclosed charge data broken out by those statistics.

Lucas in December encouraged White men to file charges of workplace bias, in an apparent effort to solicit future potential cases.

“Trying to create a narrative that the main problem she needs to be focused on is men experiencing discrimination in the workplace is just nonsensical,” said Jocelyn Frye, president of the National Partnership for Women & Families. “It makes no sense and it’s harmful for workers who depend on the EEOC to come to the table as an honest broker.”

Last year, the EEOC and Department of Justice released guidance outlining how DEI programs may be unlawful if they are motivated “in whole or in part” by protected characteristics.

Recent subpoena enforcement actions revealed broader EEOC investigations of diversity initiatives at Nike and Northwestern Mutual Fund.

The Coca-Cola distributor case “did not arise unexpectedly as it demonstrated a progression of the EEOC’s recent enforcement posture,” R. Victoria Fuller, White and Williams LLP partner, said in an email.

The case is EEOC v. Coca-Cola Beverages Northeast, D.N.H., No. 1:26-cv-00115.