Employment Law Report
Judge Dismisses Lawsuit Over EEOC’s Dismissal of Disparate Impact Claims – Personal Lawsuits Claiming Disparate Impact Still Possible
On the heels of an earlier Executive Order instructing federal agencies to deprioritize enforcement of disparate impact cases, the EEOC instructed all area offices to dismiss currently pending disparate impact charges by the end of September. A former driver for Amazon, Leah Cross, subsequently sued the EEOC for dismissing her charge that alleged that Amazon’s delivery requirements were so high that she could not take bathroom breaks. She alleged that male drivers could more easily find relief without deviating from the route, so the requirements disparately impacted females. Plaintiff argued that the EEOC’s memo directing its field offices to dismiss disparate impact charges was arbitrary, not in accordance with Title VII, and in excess of the EEOC’s authority.
While a disparate treatment case alleges that an employer purposefully discriminated against an employee based on his/her protected class, a disparate impact claim alleges that a facially neutral policy has disproportionately harmful effects on a certain protected class. Examples of disparate impact claims include: employment tests that harm the ability of applicants who have mental health issues; reductions in force that statistically impact persons over forty more than those under forty; or strength or height requirements that negatively impact females’ ability to obtain a job. Once the employee proves a disproportionately harmful impact on a particular protected class, the employer can still defeat the claim if it shows that the policy or practice is job related for the position or consistent with a business necessity, and that no other alternative requirement would suffice.
The current administration’s Executive Order “RESTORING EQUALITY OF OPPORTUNITY AND MERITOCRACY”, that instructs federal agencies to deprioritize disparate impact cases, states that “disparate-impact liability has hindered businesses from making hiring and other employment decisions based on merit and skill, their needs, or the needs of their customers because of the specter that such a process might lead to disparate outcomes, and thus disparate-impact lawsuits. This has made it difficult, and in some cases impossible, for employers to use bona fide job-oriented evaluations when recruiting, which prevents job seekers from being paired with jobs to which their skills are most suited — in other words, it deprives them of opportunities for success. Because of disparate-impact liability, employers cannot act in the best interests of the job applicant, the employer, and the American public. Disparate-impact liability imperils the effectiveness of civil rights laws by mandating, rather than proscribing, discrimination.” The Executive Order reflects a shift in priorities from previous administrations and ignores the employer’s affirmative defense of the policy or practice being job related or consistent with a business necessity.
After briefing, the Judge in Cross v. EEOC, dismissed the complaint, finding “that [the Plaintiff] failed to establish standing to bring these claims. More specifically, she has not shown she suffered a judicially cognizable injury from the Commission’s allegedly unlawful closure of her investigation. And 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.” Cross v. EEOC, 1:25-cv-03702-TNM, (D.D.C. Nov. 25, 2025) at 2. In particular, the Judge held that the Plaintiff “is not the object of a Commission enforcement action, so she lacks standing to challenge the agency’s enforcement decisions, including what claims it investigates.” Id. at 9.
The court also noted that the Plaintiff could still file a Title VII claim against her employer in court regardless of the EEOC’s dismissal of her charge, which raises an important point for employers. While the EEOC has decided not to investigate disparate impact cases, Title VII still provides a statutory claim for these cases that cannot be taken away by an executive order. Thus, employers should continue to consult legal counsel concerning employment tests or requirements, other requirements that may create barriers or favor certain protected classes, and reductions in force. Employers should also monitor developments for forthcoming guidance or regulations concerning disparate impact claims. Our team is happy to advise you on these developments.
