On August 18, 2023, the Fifth Circuit Court of Appeals, which holds jurisdiction over Texas, Louisiana and Mississippi, abandoned a decades-old interpretation that discrimination must be related to an “ultimate employment decision” to be a violation of Title VII. The “ultimate employment decision” requirement limited discrimination claims to hirings, firings, promotions or compensation decisions.  The new decision enables claims for any adverse employment action related to any term, condition or privilege of employment that is based on a protected characteristic such as race, color, religion, sex (including pregnancy, sexual orientation or gender identity), national origin, age (40 or older), military status, disability and genetic information (including family medical history).

Background

In Hamilton v. Dallas County, the Dallas County Jail replaced its seniority-based scheduling policy with a sex-based scheduling policy that allowed only male officers full weekends off.  In arriving at this policy, the jail reasoned that if male officers were not off on the weekends, they would take off weekdays instead, creating a potential safety issue. Nine female officers brought a discrimination claim and the jail sought to dismiss the claim because the schedule change was not an “ultimate employment decision.”

Evaluating the issue on appeal, the Fifth Circuit nullified the “ultimate employment decision” requirement, pointing out that “[n]owhere does Title VII say, explicitly or implicitly, that employment discrimination is lawful if limited to non-ultimate employment decisions.” The Court of Appeals focused on the text of the applicable section of Title VII, which states an employer cannot discriminate against an employee “with respect to his terms, conditions or privileges of employment.” Accordingly, the Court found that the “ultimate employment decision” requirement would render this statute meaningless.

Key Takeaways

The realm of possible employment discrimination claims has broadened.  Employees within the Fifth Circuit Court of Appeals’ jurisdiction can now make a discrimination claim based on any adverse employment decision related to any term or condition of employment. That said, the law still “does not permit liability for de minimis workplace trifles.” Where the new boundaries will be set is open to interpretation. 

Employers should be more cautious than ever before making decisions that may be interpreted to be based upon a protected characteristic.

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