The EEOC Can Chart Its Own Path: Why The EEOC's Latest "Win" Is Good News For Employers

Duane Morris Takeaways: On November 25, 2025, in Cross v. EEOC, No. 1:25-CV-3702, 2025 WL 3280764 (D.D.C. Nov. 25, 2025), Judge Trevor N. McFadden of the U.S. District Court for the District of Columbia dismissed an Amazon delivery driver's lawsuit against the EEOC. The lawsuit alleged that the EEOC illegally halted investigations of disparate impact claims following an executive order from President Trump. The district court's ruling is at least a short-term win for employers, demonstrating that a plaintiff who is not the subject of an EEOC action cannot easily resort to the federal courts to challenge the internal investigation and enforcement policies that caused the EEOC not to pursue theories of employer liability. The "win" is likely the first in a series of challenges to the EEOC's stance on disparate impact litigation.

Case Background

The plaintiff in this case, Leah Cross, who worked as Amazon delivery driver for several months in 2022, was fired after she failed to satisfy Amazon's delivery quota requirements. In May 2023, Cross filed a sex-based charge of discrimination against Amazon with the Colorado Civil Rights Division, asserting violations of Title VII and Colorado state law.

Cross contended that Amazon's delivery quotas and resulting bathroom limitations had a disparate impact on female Amazon employees. Specifically, she alleged, Amazon enforced excessively high delivery quotas, which forced delivery drivers to forgo bathroom breaks. According to Cross, this disparately impacted female delivery drivers because of their differing personal needs relative to male drivers.

In January 2024, the EEOC's Denver office began investigating the charge. But in April 2025, President Trump issued Executive Order 14281 titled "Restoring Equality of Opportunity and Meritocracy," which instructed federal agencies to deprioritize enforcement of antidiscrimination laws based on disparate impact theories of liability. That Executive Order also specifically directed the EEOC to examine all pending investigations of such claims and take appropriate action consistent with the new enforcement priorities.

In September 2025, the EEOC issued a memorandum requiring staff to close all investigations of disparate impact claims, which included Cross's claims. Thereafter, Cross filed a lawsuit against the EEOC, alleging that she "ha[d] been denied the benefit of a full investigation" by the Commission. Cross v. EEOC, No. 1:25-CV-3702, 2025 WL 3280764, at *3 (D.D.C. Nov. 25, 2025).

Cross claimed the EEOC's memorandum violated § 706(2) of the Administrative Procedure Act, arguing that: (1) the Commission acted contrary to Title VII and the Age Discrimination in Employment Act by "selectively exclud[ing] categories of discrimination from the charge-investigation process;" (2) the Commission acted arbitrarily and capriciously in abruptly changing its policy; (3) the Commission's memorandum constituted a substantive rule that was "in excess of statutory jurisdiction, authority, or limitations"; and (4) the Commission should have promulgated its memorandum through proper notice-and-comment rulemaking procedures. Id. Therefore, Cross sought a preliminary injunction requesting, among others, for her investigation to be reopened.

The Court's Opinion

The Court held Cross failed to establish that she had standing to bring her claims and thus dismissed Cross's claims for lack of subject-matter jurisdiction, without addressing them on the merits. To remedy Cross's alleged injuries, the Court suggested that Cross could pursue a Title VII action directly against Amazon.

The Court determined that Cross did not show any judicially cognizable injury from the EEOC's closure of her investigation. Moreover, the Court opined that "even if that were the kind of injury capable of judicial resolution, Cross has not shown that a favorable ruling by this Court would redress that injury." Id. at *1.

The Court explained that "federal courts are 'not the proper forum for resolving claims that the Executive branch' should 'bring more' investigations and enforcement actions." Id. at *4 (quoting United States v. Texas, 599 U.S. 670, 680 (2023)). Under applicable case law recognizing this principle, the Court held, because Cross was not the subject of an EEOC enforcement action, she lacked standing to challenge the agency's investigation and enforcement decisions.

Implications For Companies

The Court's ruling is a win for companies, confirming that federal courts currently are not willing to interfere with the EEOC's internal investigation and enforcement policies regarding disparate impact claims. Even more broadly, the Court's order reinforces the substantial deference federal courts grant the EEOC in its internal decision-making processes, which could cut in different directions depending on the enforcement priorities and policies of a particular executive branch or EEOC leadership regime.

Crucially, however, employers are not in the clear. Companies still should be proactive and continue to audit regularly their hiring and employment practices for potential disparate impact, which remains unlawful under both federal and state laws notwithstanding any vacillation in EEOC policy. While the EEOC may choose to deprioritize pursuing disparate impact claims, a charging party who receives a Notice of Right to Sue letter still can file a private lawsuit in reliance on longstanding precedent regarding disparate impact.

Disclaimer: This Alert has been prepared and published for informational purposes only and is not offered, nor should be construed, as legal advice. For more information, please see the firm's full disclaimer.