For almost thirty years, the Fifth Circuit has limited employer liability for claims under Title VII of the Civil Rights Act (“Title VII”) by restricting what constitutes an “adverse employment action” to “ultimate employment actions.” See Dollis v. Rubin, 77 F.3d 777, 781-82 (5th Cir. 1995) (per curiam) (“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.”). And, what constituted an “ultimate employment action” was limited by the Fifth Circuit to hire, termination, promotion, compensation, or leave.
A divided Fifth Circuit upended this precedent in an opinion issued August 2023, Hamilton v. Dallas County, holding that adverse employment actions under Title VII are not restricted to “ultimate employment actions.” 79 F.4th 494 (5th Cir. 2023).
Hamilton arose out of a scheduling policy enacted by the Dallas County Sheriff’s Department in 2019. The policy permitted male correctional officers to receive weekends off but disallowed female correctional officers from receiving weekends off. Nine female correctional officers filed suit in the Northern District of Texas, alleging that this policy violated the disparate treatment provisions of Title VII and the Texas employment discrimination statute (Chapter 21, Texas Labor Code).
In response, Dallas County filed a motion to dismiss, which the Northern District granted. Analyzing the plaintiffs’ claims within the framework of “ultimate employment actions,” the district court reasoned that a scheduling policy is not an ultimate employment action, and thus, that the plaintiffs were unable to state a claim under Title VII.
On appeal, the Fifth Circuit panel initially affirmed the district court decision under the same reasoning. The court nevertheless noted that it viewed the Department’s policy as a clear violation of Title VII as it “fit squarely within the ambit of Title VII’s proscribed conduct” bust was bound by court precedent. Hamilton v. Dallas County, 42 F.4th 550, 555 (5th Cir. 2022). The panel opinion urged the full Fifth Circuit to reexamine its interpretation of “adverse employment action” to only cover “ultimate employment actions.”
The Fifth Circuit granted rehearing and sat en banc to review Hamilton and more broadly, the Circuit’s “ultimate employment action” jurisprudence under Title VII.
The Fifth Circuit’s Reasoning
The Fifth Circuit began its analysis by examining the statutory text of Title VII, which provides in section 703(a) that:
“[i]t shall be an unlawful employment practice for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” (emphasis added)
Because the provision already references “fail[ing] or refus[ing] to hire or to discharge” and “compensation,” the Fifth Circuit reasoned that limiting the universe of adverse employment actions to just ultimate employment decisions renders superfluous the catchall provision—the “terms, conditions, or privileges of employment.” The court thus concluded that restricting adverse employment actions to ultimate employment decisions conflicted with the text of Title VII.
The Fifth Circuit then turned to Title VII cases decided by the United States Supreme Court. The court noted that the Supreme Court has interpreted adverse employment actions under Title VII to include “any benefits that comprise the incidents of employment, or that form an aspect of the relationship between the employer and employees.” See Hamilton, 479 F.4th, at 501 (quoting Hishon v. King & Spalding, 467 U.S. 69, 77 (1984)). The Fifth Circuit determined that requiring ultimate employment actions to state a claim under Title VII also conflicted with the Supreme Court’s interpretation of the statute.
With this framework, the court turned to the policy at issue. The Fifth Circuit held that the Department’s policy discriminated against the female correctional officers in the “terms, conditions, or privileges of employment,” which is enough to state a Title VII claim and survive a motion to dismiss. It reasoned that “the days and hours one works are quintessential ‘terms or conditions of one’s employment.”
Takeaway for Employers
In expanding the Fifth Circuit’s definition of “adverse employment action,” the court made it easier for plaintiffs to state claims under Title VII but failed to define the borders of what exactly constitutes an adverse employment action. Although the court reiterated that Title VII still does not impose a “general civility code [on] the American workplace,” employers should be aware that more workplace decisions will now give rise to liability under Title VII in the Fifth Circuit. See Hamilton, 479 F.4th, at 505 (quoting Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, (1998)).
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