In August of 2022, just after Prime Day, Leah Cross started working as an Amazon delivery driver in Colorado. She took the job because she had long heard that it was a decent and paid well. She thought it would be a way to get her foot in with a reputable company that offered good benefits. But in the end, “It was kind of the complete opposite of my experience there,” she said.

What Cross found soon after starting was “shocking,” she said. The company gave her quotas so high that she was making over 200 stops a day; each stop could include delivering to a dozen homes. She was closely monitored by video cameras, and if she started to lag behind the company’s targets, a supervisor would call her. She was working 10-to-12-hour days, but the quotas meant that she didn’t have any time for necessary breaks. One day early in her employment at Amazon, she stopped to get menstruation products and got a disciplinary call from a dispatch officer. Normally, that would have resulted in a write-up, but she got away with a verbal warning.

The inability to take bathroom breaks became a particular problem. If she stopped at a bathroom along her route, she would receive calls from supervisors asking where she had gone and if she was lost. Higher-ups told her that in order to meet the company’s quotas, she would have to buy “devices,” she recalled—she ended up getting a funnel that facilitated urinating into a water bottle. She tried to hold her bladder for as long as possible, but once it became “a dire situation,” she said, she had to close the van doors and urinate into a bottle in the back, carefully avoiding the surveillance cameras. She started bringing a gym bag packed with supplies: bottles to hold urine, trash bags to dispose of them, and extra clothes in case she peed on what she was wearing. “It kind of felt like you were loading up to go to war just to deliver some packages,” she said. Sometimes she would open the van doors after she was done only to be confronted by a waiting customer looking for a package, flooding her with embarrassment.

Cross’s inability to take regular bathroom breaks led to kidney issues and yeast infections. Even today, she deals with the aftereffects, having to remind herself that at her job at a nursing home she can use the bathroom whenever she needs to. “It’s something I still got to work on and get over,” she said.

In May 2023, Cross filed a complaint with the Colorado Civil Rights Division, a state-level agency that processes workplace discrimination claims under state law as well as on behalf of the Equal Employment Opportunity Commission, the sole federal agency tasked with enforcing private sector workers’ rights. She alleged that Amazon discriminated against her and other delivery drivers by imposing such demanding quotas that they were forced go without bathroom breaks, a practice she alleged had a disparate impact on people with vaginas who struggled to pee into bottles. “Disparate impact” is a legal standard that requires courts to look at the impact, not the intent, of laws to determine if they are discriminatory. To find that Amazon had discriminated on a disparate impact basis, the agency wouldn’t need to uncover evidence of deliberate discrimination against women; even a universal policy like denying all workers bathroom breaks could be discriminatory if it disproportionately harmed a protected class of workers under Title VII of the Civil Rights Act of 1964, which prohibits discrimination based on race, color, religion, sex, and national origin. Cross’s claim was later transferred to the EEOC. The agency told her in December 2024 it was “very interested” in moving forward with her case. Cross described herself as a wallflower, not eager to bring a spotlight to herself, but she knew that bringing the case would represent “something much greater than just my life.”

But in late September, Cross was notified by the EEOC that her charge was being closed. It wasn’t for a lack of evidence of discrimination; it didn’t have anything to do with the merits of her allegation at all. The agency had, contra years of precedent, its own statute, and settled law, decided to abandon all disparate impact discrimination charges and litigation.

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“It’s frustrating,” Cross said. It seemed, she said, that her experience didn’t matter. “You fight this long just for that basic human decency, and you’re trying to put your faith in that.”

Disparate impact cases involve employer policies or practices that appear to be neutral but result in a discriminatory outcome without having any relevance to the job itself. Think of a height and weight test to be a firefighter, a poor substitute for a strength test that excludes women, or mandatory medical exams for retail jobs that systematically shut out people with disabilities who could otherwise perform the work. Proving that something violates the disparate impact standard doesn’t require proving that there was intent to discriminate, which is a high bar to clear, just that the outcome was unnecessarily discriminatory.

Project 2025, the Heritage Foundation tome that outlined priorities for a future Republican administration, called for ending the use of disparate impact, claiming that it “makes everything presumed illegal unless given special dispensation by the federal government.” Pointing to the fact that interracial marriages are increasing, it argues that “many Americans do not fit neatly into crude racial categories” and that “disparities do not (and should not legally) imply discrimination per se.” In April, President Trump followed suit, signing an executive order purporting to revoke the use of disparate impact liability across the government. In May, Thomas Colclough, director of the EEOC’s Office of Field Programs, sent a memo, shared with The Nation, to all state and local agencies that enforce local and federal anti-discrimination law saying that the agencies would no longer be paid to process disparate impact claims on its behalf. It also said that any charges they process related to disparate impact would be subject to “substantial weight review.” In that process, the EEOC reviews the state or local agency’s decisions and if it finds that they have too often conflicted with what the federal agency would have done itself, that agency can be decertified and cut off from funding completely. In other words, if state and local agencies process disparate impact claims, they may face financial retribution from the EEOC. The larger, better-resourced agencies may decide to pursue these claims anyway, but the smaller ones that rely heavily on federal funding are second-guessing their ability to bring such cases.

In June, the EEOC backed out of racial discrimination litigation that it had brought on behalf of workers at the Sheetz convenience store chain who it had previously found had likely been discriminated against based on disparate impact. Then in September, EEOC chair Andrea Lucas sent out a memo instructing employees to administratively close any pending charges based on disparate impact claims, including Cross’s.

Disparate impact charges and litigation have now completely stopped moving forward, according to two EEOC employees with knowledge of the issue. No disparate impact charges are getting investigated. and all are being immediately closed, nor will any litigation be brought by the agency, one of the employees said. The agency is just “ignoring disparate impact as if it didn’t exist,” she said.

In doing so, the agency is likely violating the law, said Jenny Yang, a partner at law firm Outten Golden and former EEOC chair, and Joseph Sellers, a partner at Cohen Milstein. The Supreme Court has consistently found that Title VII of the Civil Rights Act prohibits disparate impact discrimination, dating back to a 1971 case. Then Congress overwhelmingly passed the Civil Rights Act of 1991, which codified disparate impact discrimination as prohibited by Title VII. “This is clearly established law,” Sellers said.

To have the agency abandon it, then, is “probably unlawful,” Sellers said. Under statute, the agency must look into all claims workers file. Executive orders don’t have the legal authority to change or enact law, and disparate impact has been written into law for 34 years. “The agency has made a blanket decision that is at odds with its statutory mandate to enforce the law,” Yang said.

“There’s never been a wholesale refusal to process disparate impact claims before,” Sellers said. “This is entirely new and extraordinary.”

It also means the agency is dropping an important and powerful tool to root out discrimination against American workers, which is its legal obligation. The agency is abandoning “people who are particularly vulnerable that are not otherwise going to be [helped] by the private sector,” said David Lopez, a law professor at Arizona State University and former EEOC general counsel. “It’s flipping the agency’s mission on its head.”

This leaves workers who experience this kind of discrimination without the benefits of the EEOC process. They won’t get access to the information the agency typically digs up in an initial investigation. The agency won’t demand that they be made whole and that an employer fix its policies moving forward in the conciliation settlement process. They won’t ever have the agency bring a lawsuit on their behalf, signaling the seriousness of their claim.

Now people like Kenni Miller must seek justice on their own. After Miller applied to be an overnight shift supervisor at a Sheetz convenience store in Pennsylvania, he received a conditional offer of employment and worked the job for over a month without any performance complaints until an old conviction came up in his background check. The company rescinded his job even though his past didn’t have any relevance to the work. “I was trying to build a future, and Sheetz made a snap judgment about me that had nothing to do with my ability to do the job,” he said in a press release.

Miller took the matter to the EEOC, which not only investigated his claim but brought its own lawsuit on behalf of him and other workers in April 2024 alleging that the company’s long-standing practice of screening job applicants’ criminal backgrounds disproportionately harmed Black applicants like Miller, as well as Native American and multiracial ones. The lawsuit “represents years and years of public investment,” Yang noted, whose firm is now representing Miller, which turned up “serious legal findings of reasonable cause to believe discrimination did exist.” But in June the agency dropped the case, forcing Miller to intervene in an attempt to become a plaintiff and pursue it on his own. That decision meant he had to go public, risking employer retaliation, where he was able to remain anonymous while the EEOC pursued the matter. “The government is abandoning our case,” Miller said. “It is disheartening, but we’re not going to give up our fight for justice.” A judge has yet to rule on whether Miller can continue the lawsuit on his own.

Other workers can still bring private lawsuits based on disparate impact, but it’s an incredibly difficult and typically expensive undertaking. First, they have to have an understanding that disparate impact discrimination may be at play—and many won’t be able to name it. They may not even know exactly what discriminatory policy is holding them and others like them back. Hiring discrimination is particularly mysterious to workers—it’s hard to know why you weren’t hired, and most companies won’t say why. Proving disparate impact, meanwhile, usually requires accessing huge amounts of data and then paying to have it analyzed by experts, a process that can take years. At the EEOC, investigators can compel employers to collect and release that data and put government resources toward analyzing it. But for private lawyers, there are many disparate impact cases they simply can’t take on because they don’t have the resources and can’t expect a big enough payout. Workers will be faced with trying to foot large legal bills or giving up on their claims altogether. They have a very short window in which to decide: Once the EEOC closes a charge and issues a right-to-sue letter, workers have just 90 days to bring their own lawsuits.

Without the EEOC pursuing these claims, and with many workers unable to carry them forward on their own, it “permits these long-standing practices that may not be justified as a matter of law to continue,” Sellers said. Employers, no longer fearing enforcement from the EEOC, won’t have an incentive to fix discriminatory policies. They might even fear incurring the wrath of the Trump administration if they collect data and try to remedy any potentially discriminatory practices. Hiring practices that disproportionately keep Black people or women out, or workplace policies that unnecessarily harm Latinos or people with disabilities, will remain unchecked. Companies will say to themselves, “This is not something we have to worry about,” Lopez said, “because who’s going to come after us?

“Without disparate impact, it’s just open season.”

With the help of law firms Public Citizen Litigation Group, FarmSTAND, Towards Justice, and Public Justice, Leah Cross filed a lawsuit against the EEOC, arguing that its decision to close all disparate impact claims was arbitrary and capricious and contrary to law. But in late November, Cross suffered yet another setback: US District Judge Trevor McFadden dismissed her lawsuit against the EEOC, saying that she lacked standing. Cross found out just before Thanksgiving. “Having that hope get crushed and crushed each time—it’s the feeling of being tossed aside and not taken seriously,” she said.

She and her legal team haven’t yet decided whether they’re going to appeal the decision, although Valerie Collins, an attorney at Towards Justice, noted that they don’t agree with the conclusion that Cross lacks standing. Cross is exhausted by the process, but she’s willing to keep going—not just for herself, but to help those who are still driving for Amazon. “That’s one thing I want to change,” she said, “so I will stick with it.