Paul N. Lalley, Esq., Campbell Durrant, P.C. | December 2025
We have previously reported how the current Administration withdrew federal court lawsuits filed by the Biden Administration against certain police departments that claimed that their hiring practices violated Title VII of the Civil Rights Act of 1964 because they had a disparate impact against minority and female applicants. A disparate impact discrimination claim typically alleges that facially neutral hiring criteria have a disproportionately negative impact on minority, female, or older job applicants. The withdrawal of those lawsuits indicated that this Administration disfavored disparate impact claims and was a signal that there would likely be a change in policy by the U.S. Equal Employment Opportunity Commission about enforcement of those claims.
Sure enough, the EEOC issued a memorandum in September that directed the closure of investigations of some cases that involved claims of disparate impact discrimination. One of the people whose cases were affected by the EEOC’s closure of disparate impact discrimination claim investigations was Leah Cross, who had filed an EEOC charge against Amazon, alleging that the company had delivery targets for Amazon drivers that effectively limited bathroom breaks and which she alleged disparately impacted female employees. Specifically, she claimed male Amazon drivers “could find relief without deviating from the route to seek out facilities” and therefore weren’t as burdened by Amazon’s delivery targets (I won’t detail here the evidence she alleged supported that assertion).
In response to the EEOC’s memorandum, Cross filed a federal court lawsuit against the EEOC challenging its policy decision to close some investigations into discrimination claims that rely on disparate impact theory. Cross claimed that the EEOC’s new policy to close investigations in disparate impact cases was contrary to the federal Administrative Procedures Act – essentially, that it was inconsistent with court interpretations of Title VII and the Age Discrimination in Employment Act – and sought an injunction that would require the EEOC to continue its investigations of these claims. Claimants are required to go through the administrative agency charging process before they can sue an employer on a Title VII or ADEA claim.
The federal district court dismissed the complaint. The court concluded that Cross lacked standing to challenge the EEOC’s policy change. Among the reasons that the court dismissed Cross’s complaint was that she could do what most plaintiffs do when the EEOC administratively dismisses their charge and issues the “Right to Sue” letter: she could bring her Title VII discrimination claim directly against Amazon in a federal court lawsuit.
So why does this matter? It shows that the EEOC is clearly de-emphasizing agency enforcement of disparate impact employment discrimination claims.
But it also shows that municipal employers should not ignore advice this firm has given regarding your duty to ensure that your hiring criteria are evaluated to determine that they do not disparately negatively impact candidates who are minority, female, or older. Title VII itself has not been amended and court decisions that recognize disparate impact discrimination claims under Title VII remain the law that governs federal lawsuits that are often the end result of the process. Courts may be unwilling to interfere with the Administration’s prioritization of EEOC enforcement objectives, but the change in approach by the EEOC is not an excuse for employers to relax in their evaluation of their hiring practices.