Fifth Circuit Nixes Its Own ‘Flawed’ Limit on Title VII Employee Discrimination Claims

A federal appeals court has discarded its own long-time precedent and expanded the scope of discrimination claims that employees can bring against their employers under Title VII of the Civil Rights Act.

In so ruling, the Fifth Circuit of Appeals, which covers Louisiana, Mississippi, and Texas, departed from its previous holdings that limited the type of adverse employment actions that could be brought under Title VII to those involving so-called “ultimate employment decisions,” which has been followed even though the federal law contains no such language or limitation.

The appeals court has now acknowledged that “nowhere does Title VII say, explicitly or implicitly, that employment discrimination is lawful if limited to non-ultimate employment decisions.”

Rather, the court said, for almost 60 years, Title VII of the Civil Rights Act has made it unlawful 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 [or her] compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” The court stressed that the law makes it unlawful for an employer “otherwise to discriminate against” an employee.

In the case before it, the court ruled in favor of female county employees who challenged a sex-based scheduling policy used by the Dallas County Sheriff’s Department. The department gives its detention service officers two days off each week. 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.

Nine female detention service officers sued Dallas County, alleging that this sex-based scheduling policy violates Title VII’s prohibition against sex discrimination. They noted that weekend days are “preferred days off” for both men and women. Schedules are sex-based even though “male and female employees perform the same tasks.”

After exhausting their administrative remedies, the officers sued the county for sex discrimination under Title VII. They also asserted a parallel state-law discrimination claim under the Texas Employment Discrimination Act.

Policy Rationale

The officers’ supervisor explained that the rationale behind this policy was “that it would be unsafe for all the men to be off during the week and that it was safer for the men to be off on the weekends.” However, “male and female employees perform the same tasks and the number of inmates during the week is the same as the number of inmates on the weekend.”

The district court granted the county’s motion to dismiss the officers’ sex bias complaint, noting that, under the precedent, “an adverse employment action for Title VII discrimination claims consists of ‘ultimate employment decisions such as hiring, granting leave, discharging, promoting, and compensating.'” Applying that precedent, 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.”

A circuit appeals panel next took up the case. The panel upheld the district court’s dismissal of the officers’ complaint, similarly ruling that the discriminatory scheduling policy did not amount to an “ultimate employment decision.” But the same panel noted that this case was the “ideal vehicle” for the full court to abandon that precedent and “align its circuit with Title VII’s text.” The panel concluded by urging the full court to “reexamine” the circuit’s “ultimate-employment-decision” requirement.

Challenge Accepted

The full appeals court accepted the challenge. It held that a plaintiff plausibly alleges a disparate-treatment claim under Title VII if she pleads discrimination in hiring, firing, compensation, or the “terms, conditions, or privileges” of her employment. The court said she “need not also show an ‘ultimate employment decision,’ a phrase that appears nowhere in the statute and that thwarts legitimate claims of workplace bias.” Giving men full weekends off while denying the same to women—a scheduling policy that the county admits is sex-based—states a plausible claim of discrimination under Title VII, the court wrote in reversing and remanding.

The court noted that no other court of appeals applies so narrow a concept of an adverse employment action” as the “ultimate employment decision” rule. Satisfied that its “ultimate employment decision” standard “lies on fatally flawed foundations, we flatten it today,” the court declared, vowing to apply the statute “as it is written and as construed by the Supreme Court.”

In considering application of Title VII to the sheriff department officers’ allegations, the court said it was mindful that the statutory phrase, “terms, conditions, or privileges of employment,” is broad and that as the Supreme Court has repeatedly stated, this language, while contractual in nature, “is not limited to ‘economic’ or ‘tangible’ discrimination,” and “it covers more than ‘terms’ and ‘conditions’ in the narrow contractual sense.”

Turning to the female officers’ claims, the judges said they “have little difficulty concluding that they have plausibly alleged discrimination “with respect to [their] . . . terms, conditions, or privileges of employment.” The days and hours that one works are quintessential “terms or conditions” of one’s employment, the court concluded.

“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”— just as the statute says. The officers here have done so,” the court wrote.

State Claim

In finding the plaintiffs’ allegations about the sex-based scheduling policy were sufficient to state a claim under Title VII, the court also reversed and remanded the officers state-law claim for further proceedings as well.

The ruling “moves the Fifth Circuit closer to its sister courts, including the Eleventh Circuit covering Georgia, Alabama, and Florida, as well as the Fourth Circuit, which includes North Carolina, South Carolina, and Virginia,” and the Supreme Court, noted attorney Brandon O. Moulard, a partner in Parker Poe law firm, in his analysis of the decision.

Moulard advised employers to prepare for a “higher scrutiny” from plaintiffs’ attorneys and an increase in Equal Employment Opportunity Commission charges and federal litigation. He urged employers to carefully review their workplace policies governing work assignments, shift schedules, and days off in the wake of the ruling.