Friday, August 18, 2023: U.S. Fifth Circuit Court of Appeals Ruled That Title VII Actionable Adverse Employment Actions Not Limited to Only “Ultimate” Employment Decisions
Actionable Adverse Actions Need Only Impact “Terms & Conditions” of Employment
Pending U.S. Supreme Court Review Expected to Address This IssuA bedrock principle of Title VII discrimination law is that one must suffer “adverse” action because of a protected status (race, sex, etc.) with respect to the terms, conditions, or privileges of employment. Departing from decades of its own precedent, the full U.S. Fifth Circuit Court of Appeals (New Orleans) ruled that “actionable adverse employment actions” may violate Title VII of the Civil Rights Act of 1964 (“Title VII”) even if they do not qualify as “ultimate employment decisions.”
Sitting “en banc” – which means that all of the appellate court’s available judges heard the case and voted on the decision, the Fifth Circuit wrote: “…we have long limited the universe of actionable adverse employment actions to so-called ‘ultimate employment decisions.’ We end that interpretive incongruity today.”
To that end, the appeals court held:
“To adequately plead an adverse employment action, plaintiffs need not allege discrimination with respect to an ‘ultimate employment decision.’ Instead, 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.”
The phrase “ultimate employment decision” means employer actions such as hiring, firing, promoting, compensation determinations, and granting leave, as opposed to other types of employment decisions which arguably might have some tangential effect upon those ultimate decisions, such as scheduling and other decisions involving working conditions.
In its 18-page majority decision, the Fifth Circuit stated that the phrase “ultimate employment decision” does not appear anywhere within the text of Title VII. As such, it “thwarts legitimate claims of workplace bias.” Accordingly, workers within the jurisdiction of the Fifth Circuit (Louisianna, Mississippi, and Texas) will have an easier time establishing employer violations of Title VII in the future.
How We Got Here
The case, Hamilton v. Dallas County (Case No. 21-10133), involved a sex-based scheduling system for jail guards in the Dallas County Sheriff’s Department. Nine female detention officers sued the county alleging that changes to the policy for scheduling days off constituted sex discrimination under Title VII and the Texas Employment Discrimination Act. This scheduling policy allowed female officers equal time off, but only during weekdays or by a combination of one weekday and one weekend day. In August 2022, a three-judge panel of the Fifth Circuit held, based on the circuit’s own precedent, that the policy did not violate Title VII.
Finding in favor of the plaintiffs, the en banc Fifth Circuit on Friday concluded that “giving men full weekends off while denying the same to women—a scheduling policy that the County admits is sex-based—states a plausible claim of discrimination under Title VII.”
Recent Supreme Court Decisions Favored Text Over Court Precedent
Two circuit judges filed concurring opinions. In one, Judge James C. Ho noted that two recent U.S. Supreme Court decisions – Groff v. DeJoy (Case No. 22-174; June 29, 2023) and Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, (Case No. 20–1199; June 29, 2023) – “the Court favored text over longstanding atextual precedent. And it did so knowing full well that both decisions leave unanswered a whole range of questions that courts will now have to confront in future cases.” (See our stories on Groff here and Students for Fair Admissions here.
Editor’s Note: We find it downright incredible in 2019 (when the Dallas County Sheriff’s Department ordered the new work scheduling policy) that the Department thought it was a good business judgment to treat male and female Correctional Officers differently simply based on their gender, regardless whether the Department thought it was legal to do so.
The Fifth Circuit noted in its en banc decision that the Department intended to discriminate based on sex and knew it was discrimination (“…the County does not dispute its discriminatory intent”). [footnote 18 omitted]. The Fifth Circuit’s en banc decision footnote 18 is illuminating as it incorporates by reference this passage from the federal District Court’s (i.e., the trial court’s) decision reported at 42 F.4th 550, 553:
“Before April 2019, Plaintiffs-Appellants’ schedules were based on seniority. However, in or around April 2019, [footnote omitted] a gender-based scheduling policy went into effect and only male officers were given full weekends off whereas female officers were allowed two weekdays off or one weekday and one weekend day off. Plaintiffs-Appellants alleged that “[w]hen [they] asked the [s]ergeant how scheduling was determined, he stated that it was based on gender” and explained that it would be safer for the male officers to be off during the weekends as opposed to during the week.2”
Footnote 2 of the trial court’s opinion is worth repeating here (and get ready to envision the face-palm emoji leaping to mind):
“2. Relevant here, male and female officers perform the same tasks and the number of inmates during the week is the same number on weekends.”
The point of this Editor’s Note is that an employer does not need the law to serve as a bayonet sticking in a manager’s back to know that it should not enforce a work policy that is immoral, disrespectful and treats employees differently based on their race, sex, national origin, color, religion, disability or veteran’s status, ancestry, etc.
At some point, it is useful for managers to just take a moment for a commonsense reality check and ask the question: “Is this a good idea, all things and all employees considered, for our business?” If a manager is missing a moral streak, companies can always fall back on the old stand-by “commonsense question” to ask: “Would you want someone to treat your son or daughter this way”?
Similar, Pending Supreme Court Case
On June 30, 2023, the U.S. Supreme Court agreed to hear Muldrow v. City of St. Louis (Case No. 22-193). There, the federal Eighth Circuit Court of Appeals followed its binding circuit precedent to hold that discriminatory job transfers (and denials of requested transfers) are lawful under Title VII when they do not impose “materially significant disadvantages” on employees. The High Court limited its review to the following question:
“Does Title VII prohibit discrimination in transfer decisions absent a separate court determination that the transfer decision caused a significant disadvantage?”