10-29-2025
A former Amazon delivery driver is suing the EEOC, accusing the agency of unlawfully abandoning her sex discrimination case. Leah Cross wants to require the EEOC to resume investigating her claims that Amazon discriminates against female drivers by failing to provide sufficient bathroom breaks. (Source: AP)
Cross says that an EEOC investigator told her the agency was closing her case because it was based on the disparate impact rule. That rule has served to protect employees from unfair treatment based on protected characteristics such as race and gender since at least 1971. However, the current administration has signed an executive order that directs the EEOC to halt all such investigations, and the EEOC has closed all complaints that are based on “disparate impact liability.”
This theory of liability holds that facially neutral policies may be discriminatory if they disproportionately and negatively impact a protected group under Title VII. The EEOC’s decision was based on the executive order that directs agencies to avoid using a disparate impact theory of liability because the new order presumes that racial and gender imbalances are the result of discrimination and leads to practices that undermine meritocracy. Complainants retain the right to file their own lawsuits to independently pursue cases of discrimination.
Cross worked for Amazon for several months in 2022. She filed her charge two years ago, asserting that the company’s required delivery schedules made it very difficult for drivers to find time to use the bathroom. She said she packed a “Shewee” (a portable urination option for women) and a change of pants (in case of accidents using the portable option). Amazon did not comment to the AP about the case but did state that it builds routes to ensure time for two 15-minute breaks and a 30-minute meal break. Amazon also provides an app for drivers to see nearby restroom facilities, such as gas stations. Cross’s lawyer is Karla Gilbride, now an attorney for a non-profit litigation group, and formerly general counsel for the EEOC.
Employers should refer to Executive Order 14281 of April 23, 2025, and although the EEOC indicated that it will not pursue cases that are based on the disparate impact rule, organizations should continue to monitor the situation.