For decades, courts in the Fifth Circuit have followed a particularly strict rule limiting when employees can sue under Title VII for workplace discrimination.

That changed last Friday.

A full panel of the Fifth Circuit Court of Appeals in Hamilton v. Dallas County jettisoned a long-standing, employer-friendly precedent that limited employment discrimination suits under Title VII to those relating to so-called "ultimate employment decisions."

The en banc court found that Title VII reaches beyond "ultimate employment decisions" and bars the "entire spectrum" of disparate treatment in the workplace, including discrimination as to the "terms, conditions, or privileges of employment." The Fifth Circuit covers Louisiana, Mississippi, and Texas.

The Hamilton decision effectively widens the scope of employment actions workers may challenge under Title VII. Its decision moves the Fifth Circuit closer to its sister courts, including the Eleventh Circuit covering Georgia, Alabama, and Florida, as well as the Fourth Circuit, which includes North Carolina, South Carolina, and Virginia.

Last Friday's ruling opens employers within the Fifth Circuit to more claims for discrimination based on race, color, religion, sex, gender, and national origin. And it will no doubt embolden plaintiffs' attorneys to push the envelope in litigating these cases. Employers should prepare for an increase in Equal Employment Opportunity Commission (EEOC) charges and litigation. Employers should also review workplace policies around employment decisions like work assignments, shift schedules, and days off, among others.

What Did the Fifth Circuit Rule on?

Title VII of the Civil Rights Act of 1964 prohibits discrimination in employment on the basis of race, color, religion, sex, and national origin. Since the mid-1990s, the Fifth Circuit had interpreted Title VII to require employees to point to an "ultimate employment decision," such as hiring, granting leave, firing, promoting, or compensating, to state a viable claim.

A group of nine female correctional officers sued the Dallas County Sheriff’s Office under Title VII for using a scheduling policy that allowed male officers, but not female officers, to take full weekends off. The officers alleged the policy violated Title VII’s prohibition of sex-based discrimination.

Bound by Fifth Circuit precedent, the district court dismissed the officers’ suit, reasoning that a change to an employee’s work schedule, such as denying days off, is not an "ultimate employment decision." A panel of the Fifth Circuit Court of Appeals initially affirmed the dismissal for the same reason. That panel, however, urged the full court of appeals to reexamine the "ultimate employment decision" requirement for Title VII suits. The court then agreed to rehear the case before a full panel of judges.

What’s the New Standard Moving Forward?

The Fifth Circuit rejected the "ultimate employment decision" rule for three main reasons. First, the court acknowledged that the rule was based on its misinterpretation of a 1981 Fourth Circuit decision. Second, nothing in Title VII’s text limits discrimination claims to those that concern "ultimate employment decisions." And in fact, the "ultimate employment decision" rule ignores language in Title VII making it unlawful for employers "to discriminate against" an employee "with respect to [her] terms, conditions, or privileges of employment," according to the court's ruling. Third, getting rid of the "ultimate employment decision" rule aligns the Fifth Circuit with its sister circuits and the Supreme Court, none of which has interpreted Title VII so narrowly. 

To state a viable disparate-treatment claim under Title VII, a plaintiff must allege that she suffered an adverse employment action because of her race, color, religion, sex, or national origin, according to the Fifth Circuit ruling. And to show an adverse employment action, a plaintiff need only allege facts plausibly showing discrimination in hiring, firing, compensation, or in the "terms, conditions, or privileges" of her employment.

Applying that new standard, the court had "little difficulty" concluding that the female officers experienced discrimination related to their terms, conditions, and privileges of employment. "The days and hours that one works," the court explained, "are quintessential 'terms or conditions' of one’s employment."

The Fifth Circuit reversed the district court’s dismissal and remanded the case, finding the plaintiffs’ allegations about the county’s sex-based scheduling policy sufficient to state a claim under Title VII.

Takeaways

While Hamilton leaves no doubt that Title VII encompasses more than just claims for "ultimate employment decisions," it did not answer what kind of "term or condition" of employment creates an actionable Title VII discrimination claim.

The court emphasized that Title VII does not permit liability for de minimis workplace trifles. But it did not define the precise level of minimum workplace harm a plaintiff must allege. Clarity on the minimum standard for Title VII liability will only come from further litigation.

The Supreme Court’s forthcoming decision in Muldrow v. City of St. Louis, Missouri, which will address whether an involuntary lateral transfer violates Title VII, will likely have an impact on this question.

Even still, Hamilton makes it much easier for a plaintiff to state a plausible discrimination claim in the Fifth Circuit. Employers should prepare for a higher scrutiny from plaintiffs' attorneys and an increase in EEOC charges and federal litigation. That means a careful review of workplace policies — especially those governing work assignments, shift schedules, and days off — is needed in the wake of the ruling.

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