Labor & Employment Law Daily Wrap Up, DISCRIMINATION—SEX—D.N.H.: Coca-Cola bottler cannot escape EEOC suit over women-only leadership forum, (Oct 20, 2026)

By Wendy Biddle, J.D.

Excluding men from a paid, employer-sponsored conference plausibly caused harm under Muldrow, the court found, and a candidate-pool-expansion rationale did not support dismissal.

A federal district court in New Hampshire denied dismissal of a Title VII suit challenging a beverage bottler's decision to send only women to a two-day professional forum, concluding that the EEOC plausibly alleged that excluded male employees suffered cognizable harm. The agency identified three alleged harms: lost networking and professional-development opportunities; denial of paid time off; and denial of tangible benefits incidental to attendance of the forum. Construing the complaint in the EEOC's favor, the court found the allegations raised a plausible inference that exclusion from the forum left male employees worse off in their terms, conditions, or privileges of employment (EEOC v. Coca-Cola Beverages Northeast, Inc., No. 1:26-cv-115-PB-AJ (D.N.H. Oct. 16, 2026)).

Complaint on behalf of male employees. The EEOC brought the action under Title VII of the Civil Rights Act of 1964 and Title I of the Civil Rights Act of 1991 on behalf of a male production employee at the bottling company's New Hampshire facility, along with similarly situated male employees. According to the complaint, on September 10 and 11, 2024, Coca-Cola sponsored a trip and networking event for women at the Mohegan Sun casino resort in Connecticut. The company characterizes the event as a Forum, and the program included a social reception, team-building exercises, recreational activities, and presentations by executives about their career paths.

Only women invited. Female employees were invited and were excused from their regular duties on those days. The EEOC alleges that the company paid them their usual salary or wages without requiring them to use paid time off, covered their hotel charges, and provided food and beverages. Male employees were not invited. The charging party and others say they would have attended if invited. The EEOC contended that the exclusion denied men equal compensation, terms, conditions, or privileges of employment because of sex, and that the company acted with malice or reckless indifference to their federally protected rights.

Motion to dismiss. Coca-Cola moved to dismiss for failure to state a claim. It argued that the EEOC alleged no actionable harm tied to an identifiable term, condition, or privilege of employment arising from a one-time event; that the Forum was a lawful effort to expand the pool of candidates for promotion by addressing workforce imbalances; and that the complaint pleaded no facts supporting punitive damages.

Adverse action? Applying the plausibility standard of Ashcroft v. Iqbal and Bell Atlantic Corp. v. Twombly, the court first addressed whether the EEOC had alleged an actionable adverse employment action. Section 703(a)(1) of Title VII bars discrimination with respect to compensation, terms, conditions, or privileges of employment. Before Muldrow v. City of St. Louis, 601 U.S. 346 (2024), the First Circuit and other courts required a plaintiff to show a materially adverse action, meaning conduct more disruptive than a mere inconvenience or an alteration of job responsibilities. Muldrow rejected that materiality requirement and replaced it with a lower threshold: a plaintiff must show some harm respecting an identifiable term or condition of employment, but the harm need not be significant.

The EEOC alleged that Coca-Cola's exclusion of male employees from the Forum constituted an adverse action under Muldrow. Coca-Cola argued that the EEOC failed to demonstrate that Coca-Cola's male employees suffered "some harm" because of their exclusion. The court rejected the EEOC's argument, drawn from Justice Kavanaugh's concurrence in Muldrow, that the discrimination is itself the harm. That view, the court explained, is neither binding authority nor consistent with the majority opinion, which still requires a plaintiff to show that the challenged action left the employee worse off in an identifiable term or condition of employment. Recent First Circuit decisions confirm that plaintiffs must point to some disadvantageous consequence of the alleged disparate treatment. Whether an adverse action exists is a question of law for the court.

Cleared the bar. Even so, the court concluded that the EEOC cleared the lower Muldrow bar. It identified three alleged harms: lost networking and professional-development opportunities, including the social reception, team-building exercises, and recreational activities; denial of the paid time off female attendees received; and denial of tangible benefits incidental to attendance, such as a company-paid overnight hotel stay, food, and beverages. Construing the complaint in the EEOC's favor, the court found these allegations raised a plausible inference that exclusion left male employees worse off in their terms, conditions, or privileges of employment. The court added that the alleged injuries arose in connection with a formal, employer-sponsored event, which supported the plausibility of treating the differential treatment as falling within the statutory language. At the pleading stage, the court said, it could not rule out that discovery would produce evidence proving a Muldrow-based claim.

Candidate-pool argument. Coca-Cola next argued that the Forum was a lawful effort to broaden the pool of promotion candidates by encouraging women to seek advancement, and that attendance never affected promotion decisions. It relied principally on three out-of-jurisdiction district court decisions, each of which upheld inclusive recruitment measures whose only effect was to make non-minority or male applicants compete against a larger field.

The court found those cases inapposite. In each, the efforts were lawful precisely because they did not deprive anyone of a benefit or adversely affect current employees. The EEOC, by contrast, did not allege discrimination in hiring or promotion, and it did not argue that pool expansion is itself improper. Its theory was that the means Coca-Cola chose, a benefit-laden event that was open only to women, deprived male employees of opportunities and benefits and thereby harmed them with respect to their terms, conditions, or privileges of employment. None of the cited cases addressed such a claim, and none authorized an employer to use a recruitment tactic that discriminates against current employees for the sake of broadening a candidate pool. Thus, even accepting that Coca-Cola sought to address a workforce imbalance and that Forum attendance had no ultimate effect on promotions, the argument did not answer the specific Title VII challenge raised.

Punitive damages. Finally, the court addressed the motion to dismiss the agency’s punitive damages request. The court acknowledged that the complaint did not appear to allege facts that would support such an award. It nonetheless followed the reasoning of Mount Prospect Academy, Inc. v. Philadelphia Indemnity Insurance Co., 823 F. Supp. 3d (D.N.H. 2026), a recent decision in the same court, which treats punitive damages as a form of relief rather than a standalone cause of action. Because a claim for relief is not subject to dismissal under Rule 12(b)(6) in the way a cause of action is, dismissal of the request would be improper at this stage. The court rejected the argument without prejudice to Coca-Cola's right to contest punitive damages later in the proceedings.

The case is No. 1:26-cv-115-PB-AJ.

Judge: Barbadoro, P.

Attorneys: Kimberly Anne Cruz for the EEOC. Frederick B. Finberg (Bennett Law Firm) for Coca-Cola Beverages Northeast, Inc.

Companies: Coca-Cola Beverages Northeast, Inc.

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