Seyfarth Synopsis:  Confronted with pleadings that unequivocally showcases the Dallas County Sheriff’s Department’s discriminatory scheduling policies, the Fifth Circuit finds that the strict application of its precedent regarding the definition of an “adverse employment action” is simply incompatible with the text of Title VII. Hamilton V. Dallas County. What follows next remains to be seen as unanswered questions fills the void left by decades of overturned precedent.   

Last November we blogged on this case to alert you that the Fifth Circuit’s definition of what constitutes an “adverse employment action” for purposes of a discrimination claim might be broadened. Today we blog to tell you that has happened.

Facts of the case: The Dallas County Sheriff’s Department gives its detention officers two days off per week.  Prior to April 2019, the schedules were based on seniority, with most officers preferring to take their two days off during the weekend.  Sometime in April 2019, the Sheriff’s Department enacted a scheduling policy that prohibited its female detention officers from taking the full weekend off, allowing them to only take two weekdays off or one weekday and one weekend day off.  By contrast, it allowed the male officers to take the full weekend off.  When the female officers asked their sergeant how scheduling was determined, the sergeant minced no words in confirming that the scheduling policy was indeed gender-based.  He insisted that it would be safer for the male officers to be off during the weekends as opposed to during the week.  Notably, the male and female officers performed the same tasks and the number of inmates during the week was the same as the number on weekends.  The female officers reported the scheduling policy to their sergeant, lieutenant, chief, and human resources to no avail. 

The litigation: After filing a charge of discrimination with the Equal Employment Opportunity Commission and receiving Notice of Right to Sue Letters, the female officers filed this Title VII and the Texas Employment Discrimination Act (“TEDA”) lawsuit on February 10, 2020. Dallas County moved to dismiss the lawsuit.  The trial court judge dismissed the lawsuit on the basis that the female officers failed to state a plausible claim for relief because they did not suffer an adverse employment action.  Although the trial court acknowledged that the County’s scheduling was an unfair, facially discriminatory policy that could plausibly make the female officers’ jobs objectively worse, it was bound to dismiss because “binding precedent of this [c]ircuit compel[led]” it to hold that the female officers did not suffer an adverse employment action.

On appeal, the Fifth Circuit affirmed the trial court’s dismissal of the lawsuit, holding that the dismissal was correct under the Fifth Circuit’s definition of adverse employment action.  Despite clearly being discriminated against, the female officers had not shown that they suffered an adverse employment action – a  dispositive factor in attaching liability – because the Fifth Circuit has consistently defined “adverse employment action” to include only ultimate employment decisions such as hiring, granting leave, discharging, promoting, or compensating.  The appellate court was bound by a rule it developed a long time ago in Dollis v. Rubin, 77 F.3d 777 (5th Cir. 1995) in which it adopted language from a Fourth Circuit case regarding a different provision of Title VII:  “Title VII was designed to address ultimate employment decisions, not to address every decision made by employers that arguably might have some tangential effect upon those ultimate decisions.”  Even though its definition was at odds with that of several of its sister circuits, the Fifth Circuit panel was stuck with precedent.

Considering that this was a case of undisputed gender discrimination, the Fifth Circuit decided that the case was an ideal vehicle to reconsider its prior precedent, which can only be done by the entire court in this circumstance.  For that reason, the full Fifth Circuit agreed to review the ultimate employment decision requirement.  On August 18, 2023, the Fifth Circuit vacated its 1995 decision in Dollis v. Rubin and set a new standard: a plaintiff does not need to show an ultimate employment decision, which the opinion described as a phrase that appears nowhere in the statute and that thwarts legitimate claims of workplace bias, to bring a plausible claim of discrimination under Title VII. “Satisfied that our ‘ultimate employment decision’ standard lies on fatally flawed foundations, we flatten it today.” Instead, employees or job applicants only need to show that they were subjected to workplace bias “because of a protected characteristic, with respect to hiring, firing, compensation, or the ‘terms, conditions, or privileges of employment.'”

TAKEAWAYS With this expansion of the Fifth Circuit’s definition of “adverse employment action”, employers in the Fifth Circuit may face more litigation because unhappy employees or former employees will no longer be as restricted in pursuing their discrimination claims.  Therefore, employers should confirm that any policies and practices which are expressly or implicitly discriminatory are supported by legitimate reasons even if applying the policy would not result in an adverse employment action under the prior Fifth Circuit definition.