Fifth Circuit Broadens Grounds for Title VII Liability

Author: Emily Scace, Brightmine Legal Editor

August 25, 2023

The full 5th Circuit Court of Appeals has reversed long-standing precedent regarding the type of adverse employment action a plaintiff must experience to prevail on a Title VII employment discrimination case.

The court's ruling in Hamilton v. Dallas County expands the grounds on which employees in Texas, Louisiana and Mississippi can file discrimination lawsuits to scheduling and other terms and conditions of employment that do not involve an "ultimate employment decision."

Hamilton involved the Dallas County Sheriff's Department's openly sex-based policy for allocating days off among its corrections officers. Only men were allowed to choose to have full weekends off; female officers could choose two weekdays or one weekend day and one weekday.

The County did not dispute that its policy was sex-based but contended that, under 5th Circuit precedent, it did not qualify as an adverse employment action that could create liability under Title VII.

Previously, the 5th Circuit had held that a plaintiff in a Title VII case needed to show a discriminatory "ultimate employment decision," such as hiring, firing, granting leave, promoting, or compensating, in order to satisfy the adverse employment action requirement. Applying that precedent, the district court that initially heard the case found that the scheduling policy the plaintiffs challenged did not fit within the category and dismissed the suit.

But on appeal, the full 5th Circuit sitting en banc overturned the district court, concluding that the "ultimate employment decision" requirement contradicted the plain language of Title VII.

"Nowhere does Title VII say, explicitly or implicitly, that employment discrimination is lawful if limited to non-ultimate employment decisions," the court emphasized. In addition to a list of specifically prohibited actions such as hiring and firing, the text of the statute contains a catchall provision that  "makes it unlawful for an employer 'otherwise to discriminate against' an employee with respect to [her] terms, conditions, or privileges of employment.'" Requiring a plaintiff to show an ultimate employment decision would render Title VII's catchall provision meaningless, the court reasoned.

Analyzing the plaintiffs' specific claims in the case, the court held that "[t]he days and hours that one works are quintessential 'terms or conditions' of one's employment." While acknowledging that Title VII is not "a general civility code" and "does not permit liability for de minimis workplace trifles," the court concluded that the County's scheduling policy constituted an adverse employment action and remanded the case to the district court for further proceedings.

Although the 5th Circuit was the only circuit with the "ultimate employment decision" requirement, questions remain about the precise contours of what constitutes an actionable employment discrimination claim under Title VII. In June, the Supreme Court agreed to hear a case to resolve a circuit split on the question of whether Title VII prohibits discrimination in job transfers that do not cause a significant disadvantage to the transferee. That case, Muldrow v. City of St. Louis, is scheduled for argument in the October 2023-24 term.