Fifth Circuit Upends 30 Years Of Title VII Precedent, Making It Easier For Employees To Bring Discrimination Claims

• Published date: 23 August 2023
• Subject Matter: Employment and HR, Discrimination, Disability & Sexual Harassment
• Law Firm: Sheppard Mullin Richter & Hampton
• Author: Mr Stephen E. Fox, Jonathan E Clark and Alexandria Amerine

Last week, the Fifth Circuit Court of Appeals upended longstanding, employer-friendly precedent in cases brought under Title VII of the Civil Rights Act. For decades, an employment discrimination plaintiff in the Fifth Circuit had to demonstrate the "adverse employment action" forming the basis of their complaint constituted an "ultimate employment decision"-which the Court of Appeals effectively limited to hiring, firing, promotion, or compensation. No longer. In a move sure to surprise some, the traditionally employer-friendly Court broadened the scope of cognizable discrimination claims in the Fifth Circuit.

The case is Hamilton et al. v. Dallas County Sheriff's Department.¹ There, female corrections officers filed a complaint for sex discrimination based on Dallas County's gender-based scheduling policy. The Court of Appeals described the policy-at-issue as follows:

"The department uses a sex-based policy to determine which two days an officer can pick. Only men can select full weekends off-women cannot. Instead, female officers can pick either two weekdays off or one weekend day plus one weekday. Bottom line: Female officers never get a full weekend off."

The County's rationale for the policy was that it would be unsafe for all men to be off during the week and, instead, safer for men to be off on weekends. Notably, however, evidence showed male and female officers performed the same tasks, and the number of inmates at the affected facilities was roughly identical during the week and on weekends.

The district court granted the County's motion to dismiss under Rule 12(b)(6)-citing Fifth Circuit precedent regarding Title VII discrimination claims. Specifically, the district court noted that under decades of Fifth Circuit jurisprudence, "an adverse employment action for Title VII discrimination consists of ultimate employment decisions such as hiring, granting leave, discharging, promoting, and compensating." Applying that standard, the district court reasoned that "changes to an employee's work schedule, such as the denial of weekends off, are not an ultimate employment decision." The district court then dismissed the plaintiffs' complaint for failure to allege an "adverse employment action."

On appeal, a three-judge panel of the Fifth Circuit affirmed the district court's dismissal. But when doing so, the panel noted the County did not dispute the policy's discriminatory intent and "the conduct complained of here squarely fits within the ambit of...