Judge Mulls Amazon Driver Ability to Sue Over Dropped EEOC Probe

A DC federal judge pressed lawyers representing an Amazon driver on whether she had standing to sue the EEOC for administratively closing her bias charge that was based on disparate impact liability theory.

US District Court for the District of Columbia Judge Trevor N. McFadden appeared during a Wednesday hearing to grapple with the effects of the 2022 US Supreme Court Biden v. Texas decision on Amazon driver Leah Cross’s suit against the Equal Employment Opportunity Commission.

Cross’s lawsuit challenges the EEOC’s discretion to administratively shut investigations. The agency ordered staff to close probes of claims that use disparate impact, after an executive order directed federal agencies to halt use of the unintentional bias theory.

Her charge alleging Amazon’s policy denying bathroom breaks discriminated against her and had a disparate impact on drivers assigned female at birth was administratively closed in September. Cross’s lawsuit said the EEOC’s change in enforcement action violates its duties under Title VII of the 1964 Civil Rights Act.

McFadden opened the hearing by asking attorneys to focus on standing arguments, after the EEOC’s lawyers raised them in an effort to thwart Cross’s request for a preliminary injunction stopping the enforcement of the commission’s disparate impact memo.

Investigatory Discretion

In Biden v. Texas, the Supreme Court said states didn’t have the standing to sue the Biden administration’s Department of Homeland Security after it ended a requirement asylum seekers wait in Mexico while their claims are pending in the US.

The opinion underscored separation of powers risks in judicial review of executive branch decisions on arrests and prosecutions.

Karla Gilbride, deputy director of Public Citizen and former EEOC general counsel, arguing for Cross Wednesday, said the high court ruling is not applicable as it is focused on DHS’s prosecutorial discretion and not investigations, like the EEOC’s.

Title VII grants the EEOC discretion to decide how to conduct an investigation of a bias charge and whether or not to file litigation once it concludes, but it does not grant discretion on whether or not to conduct one at all, Gilbride said.

The government disputed the distinction between the two. Deputy Associate Attorney General Abhishek Kambli said prosecution and investigations are two “peas in a pod.”

The government also argued Cross does not face irreparable harm as she can still pursue her case privately as she was issued a notice of right-to-sue.

However, by closing the case administratively and not considering a conciliation process Cross lost access to important information from an investigation that could help her in the process of bringing a private lawsuit, Gilbride said.

The government said any relief granted should be limited only to Cross and not far-reaching for other charges.

The case is Cross v. EEOC, D.D.C., No 1:25-cv-03702, complaint filed 10/20/25.