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By: Robert Chadwick
On Friday, August 18, 2023, an en banc panel of the U.S. Court of Appeals for the Fifth Circuit reversed nearly three decades of precedent as to the reach of Title VII of the Civil Rights Act of 1964. The Fifth Circuit has federal appellate jurisdiction in Texas, Louisiana, and Mississippi.
In Hamilton v. Dallas County, the Fifth Circuit held that “[t]o adequately plead an adverse employment action, plaintiffs need not allege discrimination with respect to an ‘ultimate employment decision.’” “Instead, a plaintiff need only show that she was discriminated against, because of a protected characteristic, with respect to hiring, firing, compensation, or the ‘terms, conditions or privileges of employment.’”
In 1995, in Dollis v. Rubin, the Fifth Circuit decided that “Title VII was designed to address ultimate employment decisions, not to address every decision made by employers that arguably might have some tangential effect upon those ultimate decisions.” In subsequent cases, the court clarified the phrase “ultimate employment decisions” to mean “only ultimate employment decisions such as hiring, granting leave, discharging, promoting or compensating.”
After Dollis, employers in the Fifth Circuit routinely obtained dismissals of discrimination claims which did not concern ultimate employment decisions. In Peterson v. Linear Controls, Inc., for instance, the Fifth Circuit held a plaintiff did not state a Title VII claim where he “alleged that he and his black team members had to work outside without access to water, while his white team members worked inside with air conditioning.”
These dismissals led one Fifth Circuit Justice to opine that “[n]o other court of appeals applies so narrow a concept of an adverse employment action” as the “ultimate employment decision rule.”
Hamilton v. Dallas County
At issue in Hamilton v. Dallas County was a scheduling policy of the Dallas County Sheriff’s Department. Under the policy, only male officers could select full weekends off – women could not. Instead, female officers could pick either two weekdays off or one weekend day plus one weekday.
Nine female officers sued Dallas County, alleging this sex-based scheduling policy violated Title VII. Citing the “ultimate decision rule,” the district court granted Dallas County’s motion to dismiss. A three-judge panel of the Fifth Circuit initially upheld the decision.
However, the employees then requested a rehearing before the full bench of Fifth Circuit judges, the majority of whom ultimately reversed the decision. In its ruling, the court departed from the ultimate decision rule, and held: “In light of the allegation that full weekends off is a preferred shift for both men and women, it is plausible that requiring female officers to work weekends but not male officers is a ‘tangible,’ ‘objective,’ and ‘material’ instance of sex discrimination in the terms, conditions, or privileges of employment.”
Is this the Beginning of a National Trend?
Hamilton v. Dallas County is only the most recent federal case to focus on non-economic employment discrimination. In 2021, in Threat v. City of Cleveland, the 6th Circuit found that shift scheduling was protected by Title VII. In 2022, in Chambers v. D.C., the D.C. Circuit held the denial of a request for transfer was actionable under the Act.
In the 2023-2024 term, even the U.S. Supreme Court is expected to weigh in on the reach of Title VII to non-economic terms and conditions of employment. On June 30, 2023, the Court granted review in Muldrow v. St. Louis, where a Title VII plaintiff alleges gender bias in a forced transfer.
If federal courts are focusing on non-economic terms of employment so should employers. Policies which should be reviewed include those affecting work conditions, scheduling, transfers, and discipline. If those policies adversely impact members of a protected class, they may be viewed as discriminatory, even if they do not result in an economic disadvantage.