Ex-Amazon worker sues EEOC for dropping disparate impact cases after Trump order

By Daniel Wiessner

Oct 21 (Reuters) - A former Amazon.com delivery driver has sued the U.S. Equal Employment Opportunity Commission for ceasing investigations into workplace policies with discriminatory impacts, including her complaint accusing the online retail giant of sex discrimination.

President Donald Trump issued an executive order in April telling federal agencies not to enforce laws that prohibit so-called "disparate impact" discrimination. But Leah Cross in a lawsuit filed in Washington, D.C., federal court on Monday, said the EEOC is legally obligated to do so.

The commission in a September memo had directed field staff to close all investigations into worker complaints alleging disparate impact discrimination in violation of Title VII of the Civil Rights Act of 1964 and the Age Discrimination in Employment Act.

That included a probe into a complaint by Cross claiming that Amazon had a policy of limiting bathroom breaks for drivers and that it had a disparate impact on women, which was closed on Sept. 29, according to her lawsuit.

Cross in the lawsuit says the U.S. Supreme Court recognized decades ago that disparate impact is a valid legal theory, and that Title VII and the ADEA require the commission to investigate all charges it receives from workers.

The EEOC, press office of which is closed during the ongoing government shutdown, did not immediately respond to a request for comment on Tuesday.

An Amazon spokesperson declined to comment. The company has said that it gives drivers at least an hour of breaks during each shift and designs delivery routes to give drivers easy access to bathrooms.

Cross' legal team includes Karla Gilbride of nonprofit Public Citizen Litigation Group, who was the EEOC's general counsel during President Joe Biden's administration and was fired by Trump in January.

Trump also fired Democratic Commissioners Jocelyn Samuels and Charlotte Burrows in an unprecedented move that left the five-member commission without a quorum and unable to do much of its work. Samuels has sued to be reinstated to her seat.

Disparate impact litigation is a tool the government has used for decades to police discrimination in employment, housing, education, lending and other areas.

Trump in his executive order said disparate impact litigation is used by a "pernicious movement" to replace merit-based decisionmaking with a focus on diversity. He said the legal theory wrongly presumes that unlawful discrimination exists when there are any differences in outcomes among different groups of people.

Many legal experts and civil rights advocates have criticized Trump's move, saying disparate impact liability is a crucial tool for uncovering systemic discrimination and holding employers accountable if they fail to change unlawful practices.

Plaintiffs in disparate impact cases are generally required to show statistically significant differences in outcomes that cannot be explained by legitimate, non-discriminatory factors in order to win.

Cross in her lawsuit said EEOC investigations are especially important in disparate impact cases, where workers may not otherwise have access to the statistical evidence needed to prove their claims. Once the EEOC closes a case, a worker has 90 days to file a lawsuit.

The EEOC process also informs workers of employers' potential defenses to their claims and offers an opportunity to settle claims without going to court, Cross' lawyers said in the complaint.

The lawsuit claims that the EEOC's September memo is arbitrary and capricious, and contrary to Title VII and the ADEA, in violation of the federal Administrative Procedure Act. Cross also says the memo should have gone through the formal rulemaking process mandated by the APA, and that it is invalid because the commission lacked a quorum when it was issued.

The case is Cross v. EEOC, U.S. District Court for the District of Columbia, No. 25-cv-3702.

For Cross: Karla Gilbride and Kelly Lew of Public Citizen Litigation Group; Shelby Leighton and Hannah Kieschnick of Public Justice; and others

For the EEOC: Not available

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