The U.S. Court of Appeals for the Fifth Circuit recently announced that Title VII plaintiffs are no longer required to plead an “ultimate employment decision" to properly allege a disparate treatment claim. Applying a strict interpretation of the statutory language, the Fifth Circuit made clear that a Title VII plaintiff can survive a motion to dismiss by pleading adverse actions with respect to “terms, conditions, or privileges of employment.” This decision is a departure from decades-old precedent within the Fifth Circuit requiring a plaintiff to allege disparate treatment with respect to an “ultimate employment decision,” such as hiring, firing, promotions, grants of leave, or compensation.

Background

The plaintiffs in Hamilton v. Dallas County were nine female detention service officers working at the Dallas County jail. While all officers were allowed two days off per week, only male officers were permitted to be off on both Saturdays and Sundays. Female officers were only allowed partial weekends off and were never allowed to be off both Saturday and Sunday in a given weekend. Before this policy was implemented, officers’ shifts and schedules were determined based on seniority. The plaintiffs alleged their supervisor told them the scheduling policy change was “based on gender” and that it would be unsafe for all the male officers to be off during the week. All employees, both male and female, however, performed the same tasks and the number of inmates was the same during the week as on weekends.

The plaintiffs filed suit in the Northern District of Texas in February 2020 to challenge the gender-based scheduling policy. Dallas County moved to dismiss, arguing the plaintiffs failed to allege they suffered an actionable adverse employment action because the scheduling system was not an “ultimate employment decision.” The district court granted Dallas County’s motion to dismiss, opining that “[a]lthough Dallas County’s alleged facially discriminatory work scheduling policy demonstrates unfair treatment, the binding precedent of this Circuit compels the Court to grant Dallas County’s motion.”

A Fifth Circuit panel affirmed the district court’s decision based on the circuit’s prior precedent requiring an “ultimate employment decision,” which a single panel could not overturn. The Fifth Circuit panel called on the full court to reconsider the “ultimate employment decision” requirement and bring the Fifth Circuit in line with other circuits as well as with the text of Title VII.

Hamilton Discards the “Ultimate Employment Decision” Standard

The full court reviewed the panel decision affirming dismissal of the case. Relying on the plain text of Title VII, the court determined the plaintiffs plausibly alleged a claim of discrimination. The Fifth Circuit reasoned that Title VII does not limit unlawful discrimination to “ultimate employment decisions.” While the statute prohibits discrimination in ultimate employment decisions, like hiring, refusing to hire, and discharging, it also prohibits an employer from “otherwise discriminat[ing]” against an employee in “compensation, terms, conditions, or privileges of employment.” Limiting viable claims to only those asserting “ultimate employment decisions” ignored this language in Title VII’s catchall provision.

Under this construction of the statute, the plaintiffs plausibly alleged a disparate treatment claim because they were denied the “privilege” of picking shifts based on seniority. Instead, the “terms or conditions” of their employment—i.e., the days and hours they worked—were determined based on sex.

In reaching its holding, the Fifth Circuit recognized that nearly every circuit has adopted some limitation to liability for disparate treatment under Title VII, such as by excluding “de minimis” actions or by requiring a “materially adverse employment action,” a “tangible employment action,” or an “objective material harm.” While the court recognized that Title VII liability requires more than “de minimis workplace trifles,” the court ultimately refused to define the level of harm necessary for a plaintiff to allege a plausible claim of disparate treatment under Title VII.

The Hamilton court provided several examples of adverse actions that would qualify as adverse employment actions, while not being considered “ultimate employment decisions,” such as denying seniority privileges to females while allowing males to exercise theirs; requiring females to work weekends but not males; assigning night and day shifts based on race; and requiring black team members to work outside, while allowing white team members to work inside. The Fifth Circuit, however, did not define the exact measure of materiality that will apply in order to have actionable harm in the Fifth Circuit, instead leaving that question “for another day.”

By removing the requirement that a plaintiff must plead an “ultimate employment decision,” Hamilton represents a defining shift for employers in the Fifth Circuit. Nevertheless, a Title VII plaintiff must still plead an adverse action that has some measure of materiality. The exact measure of materiality required will be confronted in future cases.