Cross v. EEOC

Cross v. EEOC

What’s at Stake

Along with co-counsel at Public Citizen, Towards Justice, and FarmSTAND, Public Justice filed a lawsuit challenging a recent memorandum from the EEOC directing the closure of all charges alleging disparate impact discrimination and prohibiting the investigation and conciliation of disparate impact charges going forward.

Summary

Under Title VII of the Civil Rights Act of 1964 (Title VII) and the Age Discrimination in Employment Act (ADEA), the EEOC has a statutory obligation to accept charges of discrimination from anyone aggrieved by an “unlawful employment practice,” to investigate those charges, and to attempt to facilitate a resolution through conciliation. Both statutes are designed so that a worker alleging discrimination must file a charge with the EEOC and give the EEOC some time to investigate it before they are permitted to file suit in court.

Disparate impact discrimination—when a neutral policy has a disproportionate adverse effect on a protected group—is an unlawful employment practice under both Title VII and the ADEA. In 1991 Congress added an express reference to disparate impact liability in the text of Title VII, codifying a long history of both the Supreme Court and the EEOC recognizing disparate impact discrimination as a theory of liability. And until recently, the EEOC has consistently investigated and litigated cases involving disparate impact discrimination.

In September 2025, the EEOC issued a memorandum abdicating its statutory duty to investigate and conciliate disparate impact charges. The memo directed EEOC staff to administratively close all Title VII and ADEA charges “premised solely on disparate impact liability” by September 30, 2025. The memo used similar categorical language regarding conciliation: the “EEOC cannot facilitate the resolution of a pending charge that is premised solely on disparate impact liability through conciliation.” As to charges that alleged both disparate impact and disparate treatment, the investigation and conciliation process could proceed as to the disparate treatment portion of the claim, but not the disparate impact portion.

Core Legal Problem

Plaintiff Leah Cross is a worker who we represent in a separate case against Amazon.com, Inc. In May 2023, we assisted Leah with filing a class-based charge of discrimination with the EEOC alleging that Amazon’s policy of denying bathroom breaks to its workers had a disparate impact on female workers.  The EEOC began its investigation, but on September 24, the EEOC investigator notified co-counsel that they would be administratively dismissing Leah’s charge based on the memo, and, on September 29, 2025, Leah received a notice that her charge was being dismissed without a cause finding.

We filed an APA case challenging the EEOC memo. We are seeking a preliminary injunction staying the effective date of the memo under § 705 of the APA and providing workers the option of a continued EEOC investigation while the court decides the legality of the memorandum. The memo violates the clear statutory mandate that the EEOC investigate and conciliate all charges of discrimination within its jurisdiction and is in effect a substantive rule that the EEOC enacted in secret without following the procedures set forth in the APA or its own statutory requirements for enacting a rule.