EEOC’s Power to Shut Probes Under Scrutiny in Amazon Driver Suit

The EEOC’s investigatory discretion will be tested in an Amazon worker’s case challenging the agency’s directive for staff to close pending charges that use disparate impact theory.

The suit will weigh how easily charging parties can launch litigation claiming the Equal Employment Opportunity Commission’s changing enforcement tactics violate its underlying mandate.

The outcome could impact the new Republican EEOC majority as it gears up for potentially significant shifts in how it investigates and enforces civil rights law cases, even beyond the recent decision to drop unintentional discrimination claims.

“Having that neutral enforcement and following what the law requires the agency to do, regardless of political ideology, is important and transcends this particular issue of disparate impact,” said Karla Gilbride, Public Citizen deputy director and former EEOC general counsel.

Gilbride helps represent Leah Cross in the case filed in the US District Court for the District of Columbia. Cross’s EEOC charge alleged Amazon’s policy denying bathroom breaks discriminated against her and had a disparate impact on drivers assigned female at birth.

The charge was administratively closed in September, after the agency initially indicated it would be interested in investigating.

The EEOC receives tens of thousands of charges annually and only files about 100 cases. The court can’t seek to direct the commission’s investigative approaches, especially given the more than 88,500 incoming charges it received last year, the EEOC argued in a recent brief.

The EEOC declined comment on pending litigation.

Agency Investigations

Although the commission can decide which cases are prioritized for litigation, the basic steps of investigating and possibly conciliating a charge are set by Title VII of the 1964 Civil Rights Act, Gilbride said.

“If something is a type of discrimination that falls within the statute, then the EEOC has to take those steps,” she said.

The US Supreme Court recognized disparate impact as a viable Title VII discrimination theory since 971 in Griggs v. Duke Power Co. Congress later codified disparate impact liability in a 1991 statutory amendment.

Title VII says the agency “shall make an investigation” of charges of discrimination.

If the EEOC had given priority to disparate treatment charges over disparate impact claims, that may fall within its authority, said Boston University School of Law Professor Michael Harper.

“But they have here a statement that they’re not going to investigate any of these cases and that’s tantamount to just rejecting the law,” Harper said.

The EEOC sent a staff memo in September directing administrative closures on all charges that raised only disparate impact. An executive order from President Donald Trump had told federal agencies to halt use of the theory, which shields workers from neutral employment policies that negatively affect them based on race, sex, or other protected categories.

“I just don’t see how they can say that that none of these charges have merit regardless of what an investigation could turn up,” Harper said.

The memo also directed staff against facilitating conciliation agreements on any pending charges based solely on disparate impact.

A core question in the case centers on what constitutes an “investigation” and who gets to interpret that, said Sam Mitchell, a Husch Blackwell partner.

The court isn’t likely to impede or infringe on the agency’s executive powers here, he said.

Legal arguments against other EEOC policy reversals could get a boost if Cross gets the court to clarify what level of investigation is required under Title VII.

The ruling could give the statute’s definition of an investigation “more teeth,” Mitchell said.

The commission has limited processing charges of transgender bias, following an executive order asserting the government only recognizes “two sexes.” That policy is already being challenged by civil rights groups in Maryland federal court.

Standing Concerns

In both lawsuits over EEOC’s charge processing, the agency argued that each set of plaintiffs failed to show the policy shifts caused them harm—a requirement to establish standing to sue.

For Cross, though, the injury is more evident, Harper said.

The agency’s failure to investigate and proceed to potentially reach conciliation with the charging party is part of the statute’s requirements and should be enough to show standing, Harper said.

If the EEOC successfully argues Cross lacks standing, it could allow the agency to limit investigations of more charges and become resistant to challenges over its actions.

The EEOC’s argument that Cross lacks standing cites the Supreme Court’s 2022 Biden v. Texas decision.

The court ruled the Biden administration’s Department of Homeland Security didn’t violate federal immigration law when it terminated a policy that forced asylum seekers to wait in Mexico while their claims for protection are pending in the US.

The EEOC in its argument echoed the Supreme Court’s concerns that allowing states to sue a federal agency over its policy would spawn too many complaints about alleged executive branch under-enforcement.

“Plaintiff’s invitation for this Court to supervise the ‘many factors’ that the EEOC must consider in tens of thousands of investigations and reasonable cause determinations crosses a clear line between executive and judicial authority,” the EEOC said.

But the Texas case isn’t applicable to Cross’s challenge, which is focused on the investigations the EEOC is statutorily required to make rather than on how it pursues litigation, Gilbride said.

The EEOC further argues Cross lacks standing by failing to allege an injury in fact, since she was still issued a right-to-sue letter that allows her to bring private litigation.

The commission could continue issuing these letters to charging parties with disparate impact claims, providing a possible argument they fulfilled their Title VII duties.

Simply issuing the right-to-sue notice, though, doesn’t qualify as an “investigation” under the statute’s requirement, Harper said.

If the EEOC successfully fends off Cross’s challenge, it could “reinforce the principal” that federal agencies have broad parameters to enforce their priorities, Mitchell added.

“There’s a good chance whatever happens here is going to be applied somewhere else, to other agencies,” he said.

The case is Cross v. EEOC, D.D.C., No 1:25-cv-03702.