EEOC to Close Workers’ Disparate Impact Job Bias Charges (1)

The EEOC plans to administratively close by the end of September all pending worker charges based solely on unintentional discrimination claims, with limited exceptions, according to an internal agency memo obtained by Bloomberg Law.

The memo instructs Equal Employment Opportunity Commission staff to conclude those cases by Sept. 30 and issue “right to sue” letters by Oct. 31. Workers have 90 days to file a lawsuit in federal court after they receive their letters.

It’s the latest major enforcement shift for the civil rights agency based on executive orders from President Donald Trump. The agency has already curtailed litigating and processing claims of discrimination against transgender workers after the president issued a directive for the government to recognize only “two sexes.”

In April, Trump ordered federal agencies like the EEOC and the Justice Department to halt enforcement of a decades-old legal theory known as “disparate impact,” where a facially neutral policy disproportionately harms members of a particular race, sex, or other protected category like disability or age.

The EEOC often used disparate impact liability to pursue claims of “systemic” workplace discrimination, such as in the use of criminal background checks or employee testing.

The agency already moved to drop a disparate impact-based lawsuit it filed against Sheetz Inc. that alleged its policy of rejecting applicants based on their criminal histories discriminated against Black, American Indian, Alaska Native, and multiracial job seekers.

The memo also directs against facilitating conciliation agreements on any pending charges premised solely on disparate impact liability.

A spokesperson for the EEOC didn’t immediately respond to a request for comment.

Ongoing charges that include both disparate impact allegations and intentional discrimination claims known as “disparate treatment” may continue, the memo said, but agency staff can’t continue investigating the disparate impact claims.

In cases that were based solely on disparate impact, but a disparate treatment theory could be warranted, the memo states EEOC investigators must request approval by Sept. 19 from an agency district director to continue the investigation.

For any ongoing settlement negotiations involving disparate impact claims, staff must also seek approval from a review team that includes attorney advisors from the EEOC’s Office of Field Programs, Office of Legal Counsel, and Office of General Counsel.