Law360 (November 12, 2025, 6:57 PM EST) -- A D.C. federal judge wondered Wednesday whether he had the authority to force the U.S. Equal Employment Opportunity Commission to continue probing disparate impact discrimination claims after an April executive order stopped all such investigations in their tracks.

A D.C. federal judge wondered during oral arguments whether forcing the EEOC to reopen an investigation into a woman's disparate impact discrimination claims would create a separation of powers problem given the agency's prosecutorial discretion. (iStock.com/Syahrir Maulana) During oral arguments Wednesday, attorneys for a woman who claimed that Amazon's bathroom break policies violated Title VII of the Civil Rights Act argued that the EEOC had abdicated its statutory obligations to investigate all claims by issuing an "administrative closure" of the commission's two-year probe.

But U.S. District Judge Trevor N. McFadden wondered whether forcing the agency to reopen the investigation would create a separation of powers problem given the agency's prosecutorial discretion.

According to Karla Gilbride, a Public Citizen Litigation Group attorney and former EEOC general counsel representing the former Amazon employee, when the agency receives a complaint it has two points of discretion — whether to find cause to believe that it is true and the breadth of the investigation. Other than that, Gilbride said, the text of the Civil Rights Act is clear that the commission "shall make an investigation" of the charge.

"What is not within the agency's discretion … is whether it conducts an investigation at all," she said.

That's what the D.C. Circuit wrote in 1999's Martini v. Federal National Mortgage Association, Gilbride said Wednesday. In that case, the court described the statute's "express requirement that the Commission investigate every charge filed."

In his April executive order, President Donald Trump said that disparate impact — when an ostensibly neutral policy applied evenly across different groups unintentionally winds up discriminating against a group of people — would no longer be considered a viable theory of liability in discrimination claims. Months later, the EEOC told its field office to close all investigations related to claims of disparate impact under Title VII and the Age Discrimination in Employment Act. Prior to the order, the EEOC had consistently acted on disparate impact for nearly 60 years, the plaintiff — Leah Cross — has argued. Its recognition was also expressly codified in the Civil Rights Act of 1991.

The parties were in court Wednesday to argue Cross' motion for a preliminary injunction that would invalidate the EEOC's September disparate impact memo, freeze the 90-day deadline to file suit for people whose investigations were administratively closed and give individuals the option to have their investigations reopened by the agency.

Judge McFadden wondered, however, whether the U.S. Supreme Court's ruling in United States v. Texas hadn't foreclosed Cross' standing in the matter. In that 2023 case, several states challenged the Biden administration's immigration enforcement priorities in an attempt to force the U.S. Department of Homeland Security to make more arrests. But the high court held that the executive branch "possesses authority to decide 'how to prioritize and how to aggressively pursue legal actions against defendants who violate the law.'" It also said that the Supreme Court has "long held 'that a citizen lacks standing to contest the policies of the prosecuting authority when he himself is neither prosecuted nor threatened with prosecution.'"

Judge McFadden said he understood where the circuit court was coming from in its Martini ruling from 1999.

"I wouldn't quibble with that, but I … question post-Texas whether [I] can order the EEOC to conduct that non-discretionary investigation," he said, "even if Congress," via the statute, had wanted the EEOC to do so.

Gilbride said the government was trying to "shoehorn" the Texas ruling into Cross' case, noting that she wasn't an uninvolved third party, as her claim was filed under Title VII and was unlawfully closed without any finding.

"If you can just take entire categories of discrimination off the table, … it really cuts at the heart of the scheme that Congress created," she said.

Arguing for the government, Deputy Associate Attorney General Abhishek Kambli told Judge McFadden that the "shall make an investigation" language in Title VII doesn't change the agency's prosecutorial discretion. And besides, he said, it's unclear that the court could even remedy Cross' injury when there's no clear standard for what constitutes a full investigation.

"What's the limiting principle?" Kambli asked.

The Immigration and Nationality Act also has lots of "shall" language, he said, but "that didn't move the needle in USA v. Texas." Kambli even hinted that the government might try to challenge the viability of disparate impact claims more broadly, calling it a "constitutionally suspect theory."

But Judge McFadden responded that what Cross is asking for is fairly straightforward — she wants a "conclusion of the investigation" with a finding one way or another, "not just an abortion of it."

"I thought she was pretty clear that she was just looking for a complete investigation," the judge said.

Federal law requires that employment discrimination claims be brought to the EEOC before the case goes to a civil court. Once an investigation is closed, the EEOC issues a "right-to-sue" notice giving the filer 90 days to file suit. According to Cross, she now faces the irreparable harm of having just 90 days to go to court without the benefit of a completed EEOC probe and the investigative materials compiled by the agency.

But Kambli said that she could go to court and ask for a tolling order based on the litigation in front of Judge McFadden. And even the "worst case scenario" — that she has to sue before getting a full investigation — wouldn't be irreparable harm because "there is no legally protected interest in when you get to file your case," he said.

"Irreparable harm in the D.C. Circuit requires that it be certain and that it be great," Kambli argued. And the fact that there's some uncertainty about what Cross thinks she could gain from a completed investigation "alone defeats irreparable harm."

Leah Cross is represented by Karla Gilbride and Kelly Lew of the Public Citizen Litigation Group, Valerie L. Collins and David Seligman of Towards Justice, Nathan Leys of FARMSTAND and Shelby Leighton of Public Justice.

The federal government is represented by Stanley E. Woodward Jr., Abhishek Kambli, Jeanine Ferris Pirro, Peter C. Pfaffenroth and Dimitar Georgiev of the U.S. Department of Justice.

–Additional reporting by Grace Elletson. Editing by Michael Watanabe.

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