Addressing what it deemed an “interpretive incongruity,” on August 18, 2023, the Fifth Circuit shifted nearly 30 years of Title VII disparate treatment precedent in Hamilton et al. v. Dallas County. Prior to Hamilton, Fifth Circuit standards required plaintiffs claiming discrimination on the basis of race, color, religion, sex, or national origin to allege that the discrimination impacted an “ultimate employment decision.” But with Hamilton, the Fifth Circuit emphasized the plain language of Title VII and held that, to be actionable, an employment decision merely needed to be one that impacted “terms, conditions, or privileges” of employment, even if that decision didn’t constitute an “ultimate employment decision,” which previous Fifth Circuit precedent defined to include “only ultimate employment decisions such as hiring, granting leave, discharging, promoting, and compensating.”
The policy at issue in Hamilton was a sex-based policy in which male officers could take full weekends off, while female officers could take one weekend day off, and a second day off had to occur during the week. The only issue before the Fifth Circuit was whether the plaintiff female officers had “plausibly alleged facts constituting an actionable adverse employment action under Title VII.” Emphasizing that Title VII’s plain language prohibits “discriminat[ion] against any individual with respect to his compensation, terms, conditions, or privileges of employment,” the Fifth Circuit held that the “statute’s catchall provision” referencing “terms, conditions, or privileges of employment” could not be rendered “all but superfluous.” Accordingly, the court held that Title VII protections were not limited to only claims in which “ultimate employment decisions” were at issue, and the plaintiff officers in Hamilton had pleaded sufficient facts to proceed with their claim. The court’s opinion noted that “[n]o other court of appeals applies so narrow a concept of an adverse employment action” as Fifth Circuit precedent had, and held that the court was now “apply[ing] the statute as it is written and as construed by the Supreme Court.”
The Hamilton opinion does not establish what level of materiality a plaintiff must establish in order to proceed with a claim, noting that it was “leav[ing] 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.’” Accordingly, there remains some uncertainty about threshold standards that must be established in order for a claim to go forward. But, following Hamilton, the Fifth Circuit has now held that the scope of adverse employment actions that could give rise to a claim is now broader than it had been.
