Cotton Presses Kroger CEO on the Rainbow Heart Apron and a $180,000 Settlement (November 29, 2022)

On November 29, 2022, the chief executives of Kroger and Albertsons came before the Senate Judiciary Subcommittee on Competition Policy, Antitrust, and Consumer Rights to defend Kroger’s proposed $24.6 billion purchase of its rival, a deal that would have joined the country’s second- and fourth-largest grocers [1][8]. Senators questioned them about prices, store closures and competition [8]. Sen. Tom Cotton of Arkansas used his time on something else: a religious discrimination case from a Kroger store in Conway, Arkansas, which the company had settled with the federal government a month earlier. This video shows part of his exchange with Kroger’s chief executive, Rodney McMullen. No official transcript of the hearing has been printed yet; quotes below are transcribed from video of the hearing and checked against published reports.

Key Moments

”Are you aware of these terminations?”

Cotton laid out the case. “You recently agreed to pay $180,000 to settle a religious discrimination case in Conway, Arkansas,” he said. Two employees, whom he described as 72 and 57 years old, had “declined the directive to begin wearing a new store apron with a multi-colored heart symbol on it,” because, he said, they thought the heart “resembled a gay pride symbol.” “Rather than make accommodations, Kroger fired these two employees,” Cotton said. “Are you aware of these terminations, Mr. McMullen?”

“Senator, I am not,” McMullen answered. Cotton noted that this was not a private lawsuit: “This was brought by the EEOC. So are you not aware when your company is sued for religious discrimination by the United States government?” “No, sir, I am not,” McMullen said. “Well, I’m disappointed by that,” Cotton replied.

”Still requiring all employees without accommodation”

Cotton then asked about the apron itself. “So is it the case that you are still requiring all employees without accommodation to wear this apron with the rainbow heart?” McMullen said the apron “would be required for all associates to wear consistently across the company.” Asked whether it still included “the symbol for which you just paid $180,000 to settle an EEOC lawsuit,” he said: “It would include a heart on it.”

Cotton asked whether, having settled the lawsuit, Kroger would now grant accommodations to employees who did not wish to display a symbol “they may perceive as not aligned with their moral and Christian views.” McMullen answered: “I will need to follow back up with our team with more of the details."

"Sir” and “ma’am”

Cotton also asked about an internal document. “Mr. McMullen, are you aware that Kroger has something called an allyship guide for its employees?” “Yes, Senator.” “In the allyship guide, you direct employees to stop using sir and ma’am because they’re not inclusive. Do you expect 72-year-old employees in rural areas of Arkansas to really stop using words like sir, ma’am?” McMullen said it was “incredibly important” for Kroger to have an inclusive culture that welcomed all associates. Asked whether employees in rural Arkansas who call people “sir” or “ma’am” face disciplinary action, he said: “Not that I’m aware of, sir. I would have to ask."

"Best of luck”

Cotton closed with a warning to corporate leaders. “This situation reminds me a little bit of the situation Big Tech companies have found themselves in recent years,” he said. “I’ve cautioned them for years that if they silence conservatives and center-right voters… if they discriminate against them in their company, they probably shouldn’t come and ask Republican senators to carry the water for them whenever our Democratic friends want to regulate them or block their mergers.” His message to McMullen: “I’m sorry that’s happening to you. Best of luck” [6][7].

Hawley’s Follow-Up

Sen. Josh Hawley, R-Mo., returned to the apron case later in the hearing. Asked whether Kroger had “ever fired an employee or disciplined an employee” over religion, McMullen said, “Not that I’m aware of,” and Hawley pointed to the EEOC settlement Cotton had just described. Hawley also tore into the companies’ “complementary ESG strategies” pitch for the merger. Our page on Hawley’s exchange has the full back-and-forth.

Background: The Conway Apron Case

In 2019, Kroger introduced a dress code at its Conway store that included an apron with a rainbow-colored heart emblem on the bib. According to the EEOC, two employees believed the emblem endorsed LGBTQ values and that wearing it would violate their religious beliefs. One offered to wear the apron with the emblem covered and the other offered to wear a different apron, but the company “made no attempt to accommodate their requests,” and disciplined and then fired them [2]. The heart was the company’s “Our Promise” symbol, according to the EEOC, and Kroger denied the allegations [3].

The EEOC sued on September 14, 2020, in federal court in Little Rock, and the two employees, Brenda Lawson and Trudy Rickerd, joined the case [4]. On June 23, 2022, Judge Lee Rudofsky dismissed the EEOC’s retaliation claim but ruled that its failure-to-accommodate claim would go to trial, which was set for December 6, 2022. Instead, the parties settled. The judge approved a consent decree on October 26, 2022, under which Kroger’s subsidiary agreed to pay $180,000, create a religious accommodation policy and give store managers religious discrimination training [3][4][5].

The Record

The $180,000 settlement. The EEOC announced it in October 2022: Kroger’s subsidiary agreed to pay $180,000, create a religious accommodation policy and give store managers religious discrimination training [3].
The firings. According to the EEOC, the company “made no attempt to accommodate” the two workers’ requests, then disciplined and fired them [2].
The CEO who didn’t know. McMullen told Cotton he was unaware of the case and would have to check on accommodations. The settlement a month earlier had already committed Kroger’s subsidiary to create a religious accommodation policy [3].
“After an adverse ruling.” In June 2022, the judge sent the EEOC’s central failure-to-accommodate claim toward trial, and Kroger settled before the December trial date [4].

What Happened Next

The law tightened: On June 29, 2023, in Groff v. DeJoy, a unanimous Supreme Court ruled that an employer that denies a religious accommodation must show it would “result in substantial increased costs in relation to the conduct of its particular business,” replacing the “more than a de minimis cost” test that lower courts had drawn from a 1977 precedent [13].
The merger failed: The FTC and several states sued to block the deal in February 2024 [9]. On December 10, 2024, a federal judge in Oregon, Adrienne Nelson, halted it, and a Washington state judge ruled it violated that state’s consumer protection law. “The overarching goals of antitrust law are not met, however, by permitting an otherwise unlawful merger in order to permit firms to compete with an industry giant,” Nelson wrote [10]. The next day, Albertsons ended the deal and sued Kroger, seeking billions in damages and a $600 million break-up fee; Kroger called the claims baseless and countersued in March 2025 [11][12].
McMullen resigned: On March 3, 2025, Kroger announced McMullen’s resignation after a board investigation found that his “personal conduct” was inconsistent with the company’s business ethics policy. Kroger said the conduct was unrelated to the business and did not involve its workers [14].