On August 18, 2023, in Hamilton v. Dallas County, the Fifth Circuit Court of Appeals reversed decades of precedent by broadening the standard for what constitutes an actionable adverse employment action.

Previously, an adverse employment action for Title VII discrimination claims consisted of an “ultimate employment decision” such as “hiring, granting leave, discharging, promoting, and compensation.” However, in Hamilton, the Fifth Circuit held that to sufficiently plead an adverse employment action, “a plaintiff need only allege facts plausibly showing discrimination in hiring, firing, compensation, or in the ‘terms, conditions, or privileges’ of his or her employment.” (Emphasis added).

In coming to its conclusion, the appeals court turned to the plain language of Title VII and indicated that the statute does not, explicitly or implicitly, limit liability to ultimate employment decisions. Instead, the statute not only prohibits discrimination in ultimate employment decisions, which includes hiring, refusing to hire, discharging, compensation, but also makes it unlawful for an employer to discriminate against an employee based on his or her “terms, conditions, or privileges of employment.”  

This interpretation is consistent with the Supreme Court decision in Hishon v. King & Spalding, where the Court held that an “adverse employment action ‘need only be a term, condition, or privilege of employment.’” Thus, the Fifth Circuit has now made clear that it applies the statute as written to include terms, conditions, or privileges in the standard for adverse employment action.

In Hamilton, nine female detention officers sued the Dallas County Sherriff’s Department alleging the County’s scheduling policy violates Title VII’s prohibition against sex discrimination. The County gives its detention service officers two days off each week. Up until April 2019, the shift schedules were based on seniority. However, the County adopted a new policy where only males can select full weekends off and females cannot. Instead, females can pick either two weekdays off or one weekend day plus one weekday. In applying the new standard, and reversing the district court, the Fifth Circuit concluded that, at least on at the pleadings stage, the Officers plausibly alleged discrimination with respect to the “terms, conditions, or privileges” of their employment as the “days and hours” one works are “quintessential ‘terms or conditions’ of one’s employment.”

This conclusion aligns with the Sixth Circuit’s recent holding in Threat v. City of Cleveland that a “shift schedule is a term of employment” and switching from a seniority based system to a sex-based system “discriminates against employees in the ‘terms, conditions, or privileges of employment.’”  Hamilton and Threat will likely influence other circuit courts to expand antidiscrimination laws and result in more demands and lawsuits against employers.

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