Employment Alert: En banc Fifth Circuit Opinion Broadens the Scope of Viable Discrimination Claims

August 21, 2023 by

On Friday, August 18, 2023, the US Court of Appeals for the Fifth Circuit issued an en banc opinion vacating the Court’s longstanding precedent which prevented litigants from moving forward with employment discrimination cases under Title VII of the Civil Rights Act of 1964 unless they were subjected to an “ultimate employment decisions” related to hiring, termination, granting leave, promotions, or compensation despite this language being notably absent from the express text of Title VII.

In Hamilton v. Dallas County, nine female correction officers brought suit against Dallas County for a sex-based, discriminatory scheduling policy implemented in April 2019 that allowed male correctional officers to have full weekends off, while excluding female correctional officers from this same scheduling opportunity. Hamilton v. Dallas County, Cause No. 21-10133. Prior to April 2019, scheduling decisions were based on seniority. The case was dismissed by the District Court on the basis that the scheduling policy, while admittedly sex-based, did not involve an “ultimate employment decision,” which prior legal precedent required. On initial appeal, the Fifth Circuit panel affirmed the District Court’s decision, but opined that this case was the “ideal vehicle” for an en banc Court to reverse decades-old precedent and realign Fifth Circuit precedent with the express language of Title VII. The en banc Fifth Circuit ended the “interpretive incongruity” that had for so long controlled Fifth Circuit discrimination cases with the holding 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.”

This new standard aligns with the express language of Title VII, as well as rulings from the Sixth and D.C. circuit courts, which recently overturned similar “ultimate employment decision” requirements and expanded the scope of federal antidiscrimination law. This standard also comes as, next term, the US Supreme Court is set to examine whether job transfers and denials of requests to move can form the basis of a Title VII claim when they don’t impose “materially significant disadvantages” on employees.

Key Takeaway

The new Hamilton opinion expands the scope of potential discrimination claims for employees by allowing broader and more comprehensive protections for employees as it relates to employer’s decisions affecting matters of employment. Now, an employee need only plausibly allege that an employer’s disparate treatment occurred during an employment decision that involved hiring, firing, leave, compensation, or the “terms, conditions, or privileges” of the plaintiff’s employment. As such, employers should consider whether a decision affects not only the hiring, firing, leave, and compensation elements of employment, but also whether the decision may involve other terms, conditions, or privileges of employment.

Morgan Buller

Morgan Buller is a litigation associate with experience in a wide variety of civil practice areas, including commercial and business litigation, labor & employment, mass tort and class action litigation, and antitrust litigation.

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