On August 18, 2023, the full Fifth Circuit Court of Appeals expanded the range of negative employer actions that can serve as a basis for an employment discrimination lawsuit. This decision overruled established precedent limiting discrimination claims under Title VII of the Civil Rights Act of 1964 to “ultimate employment decision” related to hiring, granting leave, discharging, promoting, or setting compensation. Since the Fifth Circuit’s 1995 ruling in Dollis v. Rubin, employees have been barred from challenging employer decisions as discriminatory that fell short of ultimate employment decisions.
The case at the heart of this legal shift – Hamilton v. Dallas County, 5th Cir. Banc, No. 21-10133 – involved a challenge to a scheduling policy that prohibited female detention officers from having full weekends off. The Sheriff’s Department permitted men to have full weekends off but did not allow female detention officers to have a full weekend off schedule. Females were allowed either two weekdays off or one weekday and one weekend day off. The district court dismissed the female detention officers’ complaint, and a three-judge panel affirmed the lower court’s dismissal because under Dollis, a difference in scheduling allowances was not an “ultimate employment action” sufficient to support a Title VII discrimination claim. The three-judge panel invited the full Fifth Circuit “to reexamine our ultimate-employment-decision requirement and harmonize our case law with our sister circuits’ to achieve fidelity to the text of Title VII.”
The Fifth Circuit sitting en banc held that Dollis’s creation of an “ultimate employment decision” requirement for Title VII cases was based on a misinterpretation of a Fourth Circuit case, which “used [‘ultimate employment decision’] merely to describe trends in Title VII litigation, not to restrict Title VII’s broad coverage to a handful of examples of discrimination mentioned in the [Fourth Circuit] opinion.” The Fifth Circuit concluded that the statute’s text makes it unlawful for an employer “otherwise to discriminate against” an employee “with respect to . . . terms, conditions, or privileges of employment” and is not limited to “ultimate employment decisions.” Therefore, the Fifth Circuit vacated Dollis and set a new standard: a plaintiff need only allege facts plausibly showing discrimination in hiring, firing, compensation, or in the “terms, conditions, or privileges of employment” to bring a lawsuit under Title VII.
The Fifth Circuit acknowledged the U.S. Supreme Court caution to federal courts not to “transform Title VII into a general civility code for the American workplace” and reiterated that Title VII “does not permit liability for de minimis workplace trifles.” The Court did not resolve the question of what precise level of minimum workplace harm a plaintiff must allege on top of showing discrimination in ones “terms, conditions, or privileges of employment” for a discrimination claim. Instead, the Court found that the female detention officers alleged “ ‘tangible,’ ‘objective,’ and ‘material’ instances of sex discrimination in the terms, conditions, or privileges of employment—and far more than ‘de minimis.’”
As a result of the Fifth Circuit’s expansion of negative employer actions that can trigger an employment discrimination lawsuit, employers should closely scrutinize broad range of employment actions to minimize potential liability under Title VII. Employers should continue to review their policies and practices to ensure that their application does not result in a disadvantage to employees belonging to a protected class.
