Labor & Employment Blog

On August 18, 2023, the Fifth Circuit Court of Appeals delivered a much-awaited decision that broadens the scope of potential liability for employers under Title VII of the Civil Rights Act. For about thirty years, the Fifth Circuit has applied a more restrictive standard for disparate-treatment liability under Title VII’s anti-discrimination provision—requiring an employee to prove alleged discrimination in connection with an “ultimate employment decision,” such as hiring, granting leave, discharging, promoting, or compensating. No more. The en banc Fifth Circuit has overturned its existing precedent and, following Title VII’s statutory text, clarified that its anti-discrimination provision also extends to discrimination occurring with respect to an employee’s terms, conditions, or privileges of employment.

Nine female corrections officers sued Dallas County in Hamilton v. Dallas County, No. 21-10133, (5th Cir. Aug. 18, 2023), alleging the County’s sex-based scheduling policy violated Title VII’s prohibition against sex discrimination. The County’s policy allowed male officers to schedule both of their days off on the weekends, while female officers were not permitted to do so. The policy required female officers to schedule at least one of their “off days” during the workweek. The district court and appellate panel rejected the corrections officers’ discrimination claims because their complaint about the scheduling policy did not satisfy the Fifth Circuit’s then-existing requirement of an “ultimate employment decision.” Upon full consideration by the Fifth Circuit, the Court held that its previous limitation of actionable adverse employment actions to ultimate employment decisions misaligns with Title VII’s plain wording and thwarts legitimate claims of workplace bias.

The Fifth Circuit acknowledged its holding does not extend Title VII liability to de minimis discrimination or workplace trifles, but the Court declined to address the precise level of minimum workplace harm an employee must allege to state a plausible claim for discrimination with respect to one’s terms, conditions, or privileges of employment. Other circuit courts of appeals have addressed the threshold requirement and require a “tangible,” “objective,” or “material” instance of discrimination in the terms, conditions, or privileges of employment. Without addressing the particular issue, the Court in Hamilton had no trouble declaring that the County’s switch from a seniority-based scheduling system to one based on sex discriminated against the employees in the terms, conditions, or privileges of employment.

If you have any questions about this recent Fifth Circuit decision and what it may mean for you and your business moving forward, we encourage you to reach out to your Chamberlain counsel. 

Chamberlain Hrdlicka’s Labor & Employment Group is available to answer any questions and assist in helping you navigate this broadened scope of employer liability under Title VII. Feel free to forward the Labor & Employment Alerts to others who might be interested. If you have questions, please send an e-mail or call.