Labor & Employment Law Daily Wrap Up, PROCEDURE—D.D.C.: Former Amazon delivery driver cannot challenge EEOC memo closing disparate impact claims, (Dec 2, 2025)

By Kathleen Kapusta, J.D.

The employee challenged the EEOC’s “discretionary judgment concerning the allocation of enforcement resources.”

A former Amazon delivery driver who filed a discrimination claim alleging the company’s onerous delivery requirements had a disparate impact on female drivers lacked standing to challenge an EEOC memorandum that, in response to President Trump’s executive order, closed disparate impact claims. Not only did she fail to show she suffered a cognizable legal injury from the Commission’s allegedly unlawful closing of her investigation; she also did not show that a favorable ruling would redress that injury, a federal court in the District of Columbia concluded, dismissing her APA claims against the EEOC for lack of subject matter jurisdiction (Cross v. EEOC, No. 1:25-cv-3702 (TNM) (D.D.C. Nov. 25, 2025)).

Disparate impact. After her termination for failure to meet delivery quotas, the employee filed a discrimination claim with the Colorado Civil Rights Division, which transferred her claim to the EEOC. She alleged that the delivery requirements imposed by Amazon were so high that female drivers lacked time to deviate from the route to seek out bathroom facilities. Because male drivers, however, used bottles as a substitute for restrooms, they could avoid straying from the delivery routes. This difference, she contended had a disparate impact on women, in violation of Title VII.

Executive order. During the EEOC’s two-year investigation of her claim, President Trump issued Executive Order 14281, entitled “Restoring Equality of Opportunity and Meritocracy,” which instructed federal agencies to “deprioritize the enforcement of all statutes and regulations to the extent they include disparate-impact liability.” It also instructed the EEOC and Attorney General to “assess all pending investigations, civil suits, or positions taken in ongoing matters under every Federal civil rights law within their respective jurisdictions, including Title VII of the Civil Rights Act of 1964, that rely on a theory of disparate-impact liability, and [to] take appropriate action with respect to such matters consistent with the policy of this order.”

EEOC memorandum and lawsuit. The EEOC then issued a memo requiring staff to close all disparate impact charges. Upon receiving notice that the investigation of her claim had been administratively closed, the employee sued the EEOC in federal court alleging that it violated the Administrative Procedure Act by acting contrary to Title VII by “selectively exclud[ing] categories of discrimination from the charge-investigation process;” that it acted arbitrarily and capriciously through its abrupt change in policy; that its memo constitutes a substantive rule that is “in excess of statutory jurisdiction, authority, or limitations;” and that it should have promulgated its memo through notice-and-comment rulemaking procedures.

Relief sought. She also sought a preliminary injunction with sweeping relief, including a declaration that the memo is without force or effect, an injunction barring the EEOC from implementing it, and an order tolling her deadline for filing lawsuits in matters that the EEOC closed under the memo.

Standing. Before turning to the merits of the preliminary injunction, the court addressed whether the employee established standing to sue. To meet the injury in fact requirement, she argued that the EEOC prematurely closed the investigation into her claim. A judicially cognizable injury, said the court, “requires, among other things,” that the “dispute is traditionally thought to be capable of resolution through the judicial process.” Citing the U.S. Supreme Court’s 2023 decision in U.S. v. Texas, which involved a challenge by two states to the Department of Homeland Security guidelines that prioritized arrests of some illegal immigrants over others, the court here noted that the Supreme Court declined the states’ request that the federal judiciary order the DHS to alter its arrest policy so that it arrests more noncitizens.

Explaining that the Supreme Court underscored the lack of “precedent, history, or tradition of courts ordering the Executive Branch to change its arrests or prosecution policies” to facilitate “more arrests” or “more prosecutions,” the court here noted that asking the Executive to bring more arrests “run[s] up against the Executive’s Article II authority to enforce federal law.” Here, said the court, the employee was seeking more investigations of discrimination claims in general, which would result in a fuller investigation of her own charges against Amazon. But “as Texas made clear, federal courts are ‘not the proper forum for resolving claims that the Executive branch’ should ‘bring more’ investigations and enforcement actions.”

Object of enforcement action. Moreover, even if the employee suffered from Amazon’s policies and had an interest in the EEOC’s pursuit of an enforcement action, she was not the object of an enforcement action, the court observed, and thus she lacked standing to challenge the agency’s enforcement decisions, including what claims it investigates.

In an attempt to distinguish Texas, the employee argued that her challenge concerned investigatory decisions, not prosecutorial ones. Finding this to be a distinction without a difference, the court pointed out that because the decision to prosecute is generally “the byproduct of an investigation,” “the investigation itself” is “treated as a discretionary function.” Further, said the court, since Texas, the D.C. Circuit has also rejected challenges to agency enforcement policies and priorities for lack of standing because of “the basic rule that private persons... have no judicially cognizable interest in procuring enforcement of the... laws against third parties.”

And while the employee argued that her request for an order directing the EEOC to keep investigating posed no risk to its discretionary functions because her case ended in an “administrative closure,” not a “no cause finding,” how her investigation ended did not determine standing, said the court, explaining that agency enforcement discretion applies across the board, not just when courts agree with agency decisions.

Shall. The court next rejected the employee’s contention that, because Title VII states that the EEOC “shall” make an investigation, the investigation of disparate impact claims is mandatory. Observing that the same was true of the governing statute in Texas, the court noted that laws granting government actors authority often “use the word ‘shall’ to authorize, but not to require... action.” But even when “shall” is mandatory in statutory directives to an agency, courts “need a ‘stronger indication from Congress that judicial review of enforcement discretion is appropriate,’ before finding that an investigatory ‘mandate’ from Congress ‘entitle[s] any particular plaintiff to enforce that mandate in federal court.’” Accordingly, the court observed, even if Congress required the EEOC to investigate all complaints, its failure to do so here was not a cognizable injury to the employee.

Abdicated. The employee also argued that the EEOC abdicated its enforcement duties by singling out disparate-impact claims. While the Texas Court cautioned that, theoretically, “the standing calculus might change if the Executive Branch wholly abandoned its statutory responsibilities” to enforce the immigration laws, that is not what happened here, said the court, as the EEOC still investigates discrimination charges, including some originally premised on disparate impact. Not only did the EEOC memo make clear that investigators who “previously solely commenced an investigation based on disparate impact liability” could in appropriate cases pursue that same investigation on a disparate treatment liability, the employee had already received a two-year investigation, which was hardly a “total abdication” of the EEOC’s responsibility, the court stated.

Redressability. Turning to redressability, the court noted that the relief sought by the employee was for further investigation. It was unclear to the court, however, what a sufficient investigation would be, especially given the two years the EEOC already spent investigating her claims. Moreover, even if it were to order the EEOC to resume the investigation, the agency could again dismiss her claims without explanation.

Finding that the employee failed to show she suffered a cognizable legal injury that a favorable ruling by it would redress, the court dismissed the employee’s claims.

The case is No. 1:25-cv-3702 (TNM).

Judge: McFadden, T.

Attorneys: Nathan Leys (FarmSTAND) for Leah Cross. Abhishek Kambli, U.S. Attorney's Office, for the EEOC and Andrea Lucas.

Cases: Procedure Discrimination AgencyNews DistrictofColumbiaNews