In August 2023, the full Fifth Circuit joined the Sixth and D.C. Circuits in broadening the kinds of employment actions capable of supporting a Title VII claim. Traditionally in the Fifth Circuit as elsewhere, Title VII actions have been limited to “ultimate employment decisions”, typically involving hiring or firing. In Hamilton v. Dallas County, the Fifth Circuit reversed its own decades-old precedent adopting this principle in what it describes as a return to the actual text of Title VII, which prohibits discrimination against an employee “with respect to his [or her] compensation, terms, conditions, or privileges of employment.”
The case involves a fairly startling factual scenario. In April 2019, the Dallas County Jail replaced its seniority-based scheduling policy with a scheduling policy that was in part overtly gender-based, allowing male officers the opportunity to have full weekends off while female officers were only allowed one weekend day off. The purported justification for this gender-based arrangement was evidently that it “would be safer for the male officers to be off during the weekends” (42 F.4th 550, 552). Why the Dallas County Jail believed this might be so was never explained in the publicly available record. In any event, the gender-based nature of the policy was explicitly admitted, but Dallas County argued that the policy did not offend Title VII because it did not involve an “ultimate employment decision.” This argument prevailed at the trial court and before a three-judge panel of the Fifth Circuit, but was then rejected by the en banc Fifth Circuit, finding that a less favorable scheduling system where female officers never received full weekends off was a term, condition or privilege of employment within the plain language of Title VII.
Remarkably for such an important and precedent-altering case, no judges dissented, a fact perhaps explained by the unusual fact that the employer in the case admitted the intention to discriminate based on gender with respect to a fundamental aspect of the employment relationship—the work schedule. There was, however, a concurrence by two judges objecting to the absence of any guidance in the opinion regarding what suffices to constitute an actionable adverse employment decision: presumably, an unwritten “ladies first” policy for eating birthday cake would not constitute an actionable adverse employment decision, but the Fifth Circuit opinion leaves the door wide open. The concurrence argues that “de minimis injuries” do not count and only material harm does. There is nothing in the court’s opinion implying otherwise, but nor is there any language to reassure employers in the Fifth Circuit that there is still some minimal standard of harm that a plaintiff must suffer before suing under Title VII.
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- M. Brian Sabey at (720) 282-2025 or briansabey@hallrender.com; or
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Hall Render blog posts and articles are intended for informational purposes only. For ethical reasons, Hall Render attorneys cannot—outside of an attorney-client relationship—answer specific questions that would be legal advice.
