Sharpe-Miller v. Walmart, Inc.
In July 2026, the Tenth Circuit issued a new opinion regarding a claim of hostile work environment on a matter of first impression. The plaintiff, a former Walmart employee, alleged that he was subjected to discriminatory comments on the basis of his same-sex orientation, that he was demoted, and briefly terminated on account of a mix-up related to his jury duty. The plaintiff resigned. In his lawsuit, he claimed disparate treatment, retaliation, constructive discharge, as well as hostile work environment. The District Court granted summary judgment in favor of Walmart on all claims.
The Tenth Circuit affirmed the lower court’s judgment as it pertained to the claims of disparate treatment (time-barred), retaliation (no protected conduct), demotion (no action based on protected class or conduct) and constructive discharge (insufficient evidence meet high evidentiary standard). It reversed, however, on the hostile work environment claim, holding that the lower court should not have discounted evidence of hostile comments that were not necessarily directed at the plaintiff or that were made by unidentified employees. The court held that discrete employment action that might not be individually actionable can contribute to a pattern of conduct that meets the severe or pervasive standard.
Separately, the court rejected the trial court’s reliance on the term “steady barrage” as a necessary requirement for commentary to violate the law. The decision emphasizes Title VII’s standard of “severe or pervasive,” not a “steady barrage” when assessing whether alleged commentary meets the legal standard for a claim to proceed.
EEOC Seeks Data Regarding Employee Attendance at DEI Trainings
On September 8, 2026, the EEOC announced that it had asked the U.S. District Court for the Northern District of California to enforce an administrative subpoena it issued to the City and County of San Francisco seeking data related to the City’s mandatory Diversity, Equity, and Inclusion trainings. When the City did not produce the data requested, the EEOC sought intervention from the federal court. The Director of the EEOC’s San Francisco District said, “Title VII grants the EEOC broad authority to obtain information necessary to determine whether an employer’s practices violate antidiscrimination statutes. When an employer refuses to provide information central to that inquiry, the EEOC will use all tools available to obtain that evidence, including subpoenas.” The District Court has yet to rule on the EEOC’s enforcement action.
EEOC Announces $1.5 Million settlement with Mile Hi Foods
On September 25, 2026, the EEOC announced that Denver-based Mile Hi Companies, which distributes food and paper products, had agreed to pay $1.5 million to settle a federal lawsuit the agency filed on behalf of Black, female, and Afghan job applicants dating back to 2015. The lawsuit alleged that Mile Hi’s CEO had directed subordinates to stop hiring women for warehouse positions and Afghanis for bakery jobs while also limiting the hiring of Black employees. Furthermore, the CEO was alleged to have retaliated against an HR manager who objected to these directives. The consent decree also required Mile Hi to undergo three years of monitoring by the EEOC while revising policies, training employees, and providing data to the agency.
Sources:
https://www.mcafeetaft.com/when-workplace-slurs-cross-the-line-tenth-circuit-analysis-of-a-hostile-work-environment-claim/
https://www.eeoc.gov/newsroom/mile-hi-foods-pay-15-million-eeoc-race-sex-and-national-origin-discrimination-lawsuit