The Kroger Company’s Board of Directors adopted a Policy on Business Ethics committing to equal opportunity employment without regard to “race, color, religion, gender, national origin, disability, sexual orientation, or gender ideology.” However, Kroger refused to include “viewpoint” or “political ideology” as protected categories in its equal employment opportunity (EEO) policy. The National Center for Public Policy Research (NCPPR), acting as shareholders, submitted a proposal requesting that Kroger publicly report on the risks associated with excluding political ideology from its EEO policy.

Kroger, supported by the Securities and Exchange Commission (SEC), blocked the proposal, claiming it concerned ordinary business operations and thus was outside the scope of shareholder proposals. This effectively ignored documented discrimination against conservatives and other employees based on political viewpoint. In partnership with Boyden Gray & Associates, America First Legal filed a petition in the U.S. Court of Appeals for the Fifth Circuit on behalf of NCPPR and two individual shareholders. The suit challenges the SEC’s and Kroger’s denial of shareholders’ rights to protect prospective employees from discrimination based on political ideology. The case is currently pending before the Fifth Circuit.