Fifth Circuit Makes It Easier for Employees to Assert Title VII Claims Against Employers
The full U.S. Court of Appeals for the Fifth Circuit recently broadened the scope of actionable adverse employment actions that can serve as the basis for a discrimination lawsuit. It overturned a nearly three-decade precedent which limited actionable adverse employment actions to “ultimate employment decisions.”
Under Title VII of the Civil Rights Act of 1964, employers cannot fail or refuse to hire or to discharge any individual, or otherwise discriminate against any individual with respect to their compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex or national origin. Since its 1995 ruling in Dollis v. Rubin, the Fifth Circuit Court required employees to experience actions that rose to the level of “ultimate employment decisions” to assert a Title VII claim. Under that precedent, ultimate employment decisions were actions such as hiring, granting leave, discharging, promoting and compensating. Adverse employment actions below this level were not actionable.
In Hamilton v. Dallas County, female detention officers alleged the Dallas County Sheriff Department’s scheduling policy violated Title VII. The scheduling policy entitled all employees to two days off each week. However, male detention officers were allowed to take full weekends off while female officers were required to take two weekdays off or one weekday and one weekend day. Female officers were not allowed to take full weekends off purportedly due to safety concerns. Following Dollis, a three-judge panel for the Fifth Circuit Court agreed that changes to an employee’s work schedule, such as the denial of weekends off, were not “ultimate employment decisions” and affirmed the dismissal of the lawsuit. However, the same three-judge panel then vacated the decision and granted a rehearing en banc so the full Fifth Circuit Court could reexamine its ultimate-employment-decision requirement.
The full Fifth Circuit Court heard the case on Jan. 23 and issued its ruling Aug. 18. In its ruling, the Fifth Circuit Court interpreted the plain language of Title VII and reasoned its determination of what constitutes an actionable adverse employment action ignored Title VII’s broad language. The Court said the phrase “ultimate employment decision” was too limited and appears nowhere in the plain language of Title VII. The Court opined its ultimate employment decision standard “[layed] on fatally flawed foundations” and reversed precedent to apply Title VII as written and as construed by the U.S. Supreme Court. The Fifth Circuit ruled the following:
To adequately plead an adverse employment action, plaintiffs need not allege discrimination with respect to an “ultimate employment decision.” Instead, a plaintiff need only show that she was discriminated against, because of a protected characteristic, with respect to hiring, firing, compensation, or the “terms, conditions, or privileges of employment.”
The Fifth Circuit held the female detention officers alleged viable claims under Title VII and reversed and remanded the officers’ case for further action consistent with its ruling.
The Court’s ruling carries significant implications for employers because the statutory phrase, “terms, conditions, or privileges of employment” is broad, and the statute does not provide a minimum level of actionable harm an employee must demonstrate, if any. The new ruling could open the doors to “a flood of Title VII litigation over run-of-the-mill workplace squabbles,” as Dallas County argued. The Court acknowledged that there is some merit in seeking a limitation but did not address the precise level of minimum workplace harm a plaintiff must allege on top of showing discrimination in “terms, conditions, or privileges of employment.” The Fifth Circuit indicated its decision to not address this particular issue is supported by the fact that the U.S. Supreme Court is poised to address the issue in another case - Muldrow v. City of St. Louis.
Please contact Maritza Sanchez or any member of Phelps’ Labor and Employment team if you have questions or need advice or guidance.
