US judge tosses ex-Amazon worker's lawsuit over stalled EEOC investigations

By Daniel Wiessner

Nov 25 (Reuters) - A federal judge on Tuesday dismissed a former Amazon.com delivery driver's lawsuit claiming the the U.S. Equal Employment Opportunity Commission illegally halted investigations into workplace policies with discriminatory impacts at President Donald Trump's insistence.

U.S. District Judge Trevor McFadden in Washington, D.C., said that Leah Cross, who had filed a sex discrimination complaint against Amazon with the EEOC, lacked standing to pursue the case because courts cannot second-guess the commission's enforcement policies.

"Federal courts are not the proper forum for resolving claims that the Executive branch should 'bring more' investigations and enforcement actions," wrote McFadden, who was appointed by Trump, a Republican, during his first White House term.

The EEOC and lawyers for Cross did not immediately respond to requests for comment.

In an April executive order, Trump told federal agencies not to enforce laws prohibiting practices with an often unintended "disparate impact" on protected groups, a tool the government has used for decades to police discrimination in employment, housing, education, lending and other areas.

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 complaint by Cross claiming that Amazon's policy of limiting bathroom breaks for drivers had a disparate impact on women, which was closed on Sept. 29, according to her lawsuit. Amazon 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 in the lawsuit said 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.

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 addressing systemic discrimination and holding employers accountable if they fail to change unlawful practices.

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.

McFadden on Tuesday declined to wade into those claims.

"Cross 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," the judge wrote.

Trump in January fired Democratic EEOC commissioners Jocelyn Samuels and Charlotte Burrows, an unprecedented move that left the five-member commission without a quorum and unable to do much of its work. The Senate in October confirmed Trump nominee Brittany Panuccio, a Justice Department lawyer, to a vacancy, restoring a quorum and giving Republicans a 2-1 majority. Samuels has sued to be reinstated to her seat.

The case is Cross v. Equal Employment Opportunity Commission, 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; and Shelby Leighton and Hannah Kieschnick of Public Justice

For the EEOC: Abhishek Kambli, Dimitar Georgiev-Remmel and Peter Pfaffenroth of the U.S. Department of Justice

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