Last week, the Fifth Circuit Court of Appeals upended longstanding, employer-friendly precedent in cases brought under Title VII of the Civil Rights Act. For decades, an employment discrimination plaintiff in the Fifth Circuit had to demonstrate the “adverse employment action” forming the basis of their complaint constituted an “ultimate employment decision”—which the Court of Appeals effectively limited to hiring, firing, promotion, or compensation. No longer. In a move sure to surprise some, the traditionally employer-friendly Court broadened the scope of cognizable discrimination claims in the Fifth Circuit.
The case is Hamilton et al. v. Dallas County Sheriff’s Department.[1] There, female corrections officers filed a complaint for sex discrimination based on Dallas County’s gender-based scheduling policy. The Court of Appeals described the policy-at-issue as follows:
“The department uses a sex-based policy to determine which two days an officer can pick. Only men can select full weekends off—women cannot. Instead, female officers can pick either two weekdays off or one weekend day plus one weekday. Bottom line: Female officers never get a full weekend off.”
The County’s rationale for the policy was that it would be unsafe for all men to be off during the week and, instead, safer for men to be off on weekends. Notably, however, evidence showed male and female officers performed the same tasks, and the number of inmates at the affected facilities was roughly identical during the week and on weekends.
The district court granted the County’s motion to dismiss under Rule 12(b)(6)—citing Fifth Circuit precedent regarding Title VII discrimination claims. Specifically, the district court noted that under decades of Fifth Circuit jurisprudence, “an adverse employment action for Title VII discrimination consists of ultimate employment decisions such as hiring, granting leave, discharging, promoting, and compensating.” Applying that standard, the district court reasoned that “changes to an employee’s work schedule, such as the denial of weekends off, are not an ultimate employment decision.” The district court then dismissed the plaintiffs’ complaint for failure to allege an “adverse employment action.”
On appeal, a three-judge panel of the Fifth Circuit affirmed the district court’s dismissal. But when doing so, the panel noted the County did not dispute the policy’s discriminatory intent and “the conduct complained of here squarely fits within the ambit of Title VII’s proscribed conduct; discrimination with respect to the terms, conditions, or privileges of one’s employment because of sex.” Regardless, however, the panel concluded it was “bound by [Fifth Circuit] precedent” and noted this case was an “ideal vehicle” for the full Fifth Circuit to reconsider the wisdom of its definition of an “adverse employment action” under Title VII.
The Fifth Circuit took the panel up on that offer. On January 23, 2023 the Fifth Circuit reheard oral argument en banc. Seven months later, on August 18, the Court of Appeals issued its opinion. In a complete reversal of both the dismissal order and its own precedent, the Fifth Circuit upended itself—stating that despite Title VII’s broad definition of unlawful discrimination “we have long limited the universe of actionable adverse employment actions to so-called ultimate employment decisions. We end that interpretive incongruity today.”
The Court of Appeals began its analysis by acknowledging the plain language of Title VII is far broader than its former holdings allowed. Specifically, Title VII makes it unlawful for an employer to “fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his [or her] compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” (emphasis added). The Court acknowledged the final portion of the statutory phrase is broad, not limited to economic or tangible discrimination, and covers more than “terms” or “conditions” in the contractual sense.
But for nearly 30 years, the Fifth Circuit limited disparate-treatment liability under Title VII to so-called “ultimate employment decisions”—a phrase the Court first coined in a 1995 case, Dollis v. Rubin. 77 F.3d 777. In Dollis, the Court reasoned 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.” By its own admission, the Fifth Circuit’s authority for that proposition was tenuous at best. In fact, the Court conceded that Dollis’s “embrace of an ultimate employment decision rule was based on a misinterpretation” of dicta from a 1981 Fourth Circuit case, Page v. Bolger. 645 F.2d 227 (4th Cir. 1981).
The Fifth Circuit then conceded its narrow interpretation of what constituted “adverse employment actions” caused it to reach “some remarkable conclusions.” In a tone that can only be described as embarrassment, the Court of Appeals recounted its holding in the 2019 case Peterson v. Linear Controls, Inc. There, plaintiff alleged “he and his black team members had to work outside without access to water while his white team members worked inside with air conditioning.” Relying on its former precedent, the Court of Appeals held those conditions were not adverse employment actions because “they [did] not concern ultimate employment decisions.” This result, the Court stated, was not in keeping with “what the statute says—at all.”
After casting aside Dollis and its progeny, the Court turned to the case at bar. The Fifth Circuit had “little difficulty” concluding that the female officers in Hamilton have plausibly alleged discrimination with respect to the terms, conditions, or privileges of their employment as the “days and hours that one works are quintessential” to same. Ultimately, the Fifth Circuit reversed and remanded the district court’s dismissal order—finding plaintiffs’ sex-based scheduling allegations against the County more than sufficient to state a claim under Title VII.
The Court of Appeals demurred on supplying a bright-line rule for what precise level of workplace harm a plaintiff must allege to state a Title VII discrimination claim. To be sure, however, pleading a discrimination case in the Fifth Circuit just got much, much easier. Henceforth, 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—just as the statute says.”
FOOTNOTES
[1] 2023 WL 5316716 (5th Cir. Aug. 18, 2023).