Key Takeaways
- Employees in Louisiana, Mississippi, and Texas can now state a Title VII disparate-treatment claim if they plead discrimination in hiring, firing, compensation, or the “terms, conditions, or privileges of employment.” An “ultimate employment decision” is no longer required.
On August 18, 2023, the en banc United States Court of Appeals for the Fifth Circuit overturned decades of its own precedent and redefined what constitutes an adverse employment action under Title VII. In Hamilton v. Dallas County,1 the Court held that “a plaintiff plausibly alleges a disparate-treatment claim under Title VII if she pleads discrimination in hiring, firing, compensation, or the ‘terms, conditions, or privileges’ of her employment. She need not also show an ‘ultimate employment decision,’ a phrase that appears nowhere in the statute and that thwarts legitimate claims of workplace bias.”2
Background
In 2019, the Dallas County Sheriff’s Department changed its shift scheduling policy from a seniority-based policy to a sex-based policy under which only male officers were given full weekends off.3 Female employees could never receive full weekends off; either they could receive weekdays off or “partial” weekends off, meaning one weekday and one weekend day.4 Nine female detention service officers sued Dallas County, alleging the policy violated Title VII.5 But because shift scheduling was not an “ultimate employment decision,” a panel of the Fifth Circuit upheld dismissal of the officers’ complaint, and noted the case was “the ‘ideal vehicle’ for the en banc court to align [the Fifth Circuit] with Title VII’s text.”6
Fifth Circuit’s En Banc Analysis
Title VII makes it “unlawful for an employer ‘to fail or refuse to hire or to discharge any individual, or otherwise 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.”7 But in the Fifth Circuit, actionable adverse employment actions have long been limited to “ultimate employment decisions,”8 which included “decisions such as hiring, granting leave, discharging, promoting, or compensating.”9 Applying the plain text of Title VII, however, the Court explained that “that’s not what the statute says—at all. Nowhere does Title VII say, explicitly or implicitly, that employment discrimination is lawful if limited to non-ultimate employment decisions.” 10 And Title VII explicitly outlaws employers “‘otherwise . . . discriminat[ing] against’ an employee ‘with respect to [her] terms, conditions, or privileges of employment.’”11 Because the “ultimate-employment-decision test ignores this key language,” the Fifth Circuit reasoned, the test “renders the statute’s catchall provision all but superfluous. This we cannot do.”12 Accordingly, the Fifth Circuit discarded the ultimate-employment-decision test.13
Following the United States Court of Appeals for the Sixth Circuit’s recent decision in Threat v. City of Cleveland,14 the Fifth Circuit concluded that “switching from a seniority-based system to a sex-based system discriminates against employees in the ‘terms, conditions, or privileges of employment.’ It’s that simple. At the pleading stage, these allegations are sufficient to state a claim under Title VII.”15 While affirming that Title VII “does not permit liability for de minimis workplace trifles,” the Fifth Circuit left “for another day the precise level of minimum workplace harm a plaintiff must allege on top of showing discrimination in one’s ‘terms, conditions, or privileges of employment.’”16
The Fifth Circuit Joins Other Circuits and the Supreme Court
The Hamilton decision brings the Fifth Circuit in line with the other Courts of Appeals and the United States Supreme Court’s Title VII jurisprudence. Since 1984, the Supreme Court has explained that “an adverse employment action ‘need only be a term, condition, or privilege of employment,’” not an “ultimate employment decision.”17 And since the 1990s, a Title VII plaintiff has been permitted to “recover damages even for ‘discrimination in the terms, conditions, or privileges of employment’ that ‘did not involve a discharge,’ ‘loss of pay,’ or other ‘concrete effect on [his or her] employment status.’”18 In Hamilton, the Fifth Circuit recognized that “no other court of appeals applies so narrow a concept of an adverse employment action as the ‘ultimate employment decision’ rule.”19 By discarding the rule, the Fifth Circuit joins the rest of the circuits in recognizing Title VII causes of action for adverse actions less extreme than an ultimate employment decision.
Takeaways
The Fifth Circuit’s decision in Hamilton reduced the pleading standard for disparate-treatment Title VII claims, which will likely lead to an uptick in the number of such claims filed against employers. Employers preparing to update or draft policies or procedures affecting employees in Louisiana, Mississippi, and Texas should ensure they have legitimate, non-discriminatory reasons for those policies.
Employers should also pay close attention to the upcoming Supreme Court term, in which the Court has agreed to hear oral argument in Muldrow v. City of St. Louis (No. 22-193). In Muldrow, the Court will consider whether Title VII prohibits discrimination in transfer decisions absent a separate court determination that the decision to transfer caused a significant disadvantage.
Footnotes
1) No. 21-10133 (5th Cir. Aug. 18, 2023) (en banc).
2) Slip Op. at 2–3
3) Id. at 3.
4) Id.
5) Id. at 2.
6) Id.
7) Id. at 1–2 (quoting 42 U.S.C. § 2000e-2(a)(1)).
8) Id. at 2.
9) Id. at 7 (cleaned up).
10) Id. at 9.
11) Id. at 9–10 (quoting 42 U.S.C. § 2000e-2(a)(1)).
12) Id. at 10.
13) Id. at 11
14) 6 F.4th 672 (6th Cir. 2021).
15) Slip Op. at 14–15.
16) Id. at 17–18
17) Id. at 10 (quoting Hishon v. King & Spalding, 467 U.S. 69, 77 (1984)).
18) Id. (quoting Landgraf v. USI Film Prod., 511 U.S. 244, 254 (1994) (in turn quoting 42 U.S.C. § 2000e-2(a)(1)).
19) Id. at 11 (cleaned up)
