Fifth Circuit Expands Test For Adverse Employment Actions In Title VII Discrimination Claims – Employee Rights/ Labour Relations

16 September 2023

McGuireWoods LLP

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On Aug. 18, 2023, the U.S. Court of Appeals for the Fifth
Circuit reversed its long-held test to determine what adverse
actions can support an employee’s Title VII claim. Title VII
requires an employee alleging a discrimination claim to have
suffered an “adverse employment action.” Before this
decision, successful discrimination claims in the Fifth Circuit
required the employee to have suffered an adverse “ultimate
employment decision.”

In Hamilton v. Dallas County, the court
significantly expanded this definition to include decisions or
actions affecting more than hiring, firing and compensation. Nine
female officers within the Dallas County Sheriff’s Department
sued Dallas County based on a vacation policy that permitted only
male officers full weekends off. Female employees, on the other
hand, could not take off both Sa،ay and Sunday.

A three-judge panel upheld the trial court’s dismissal of
the officers’ complaint, ،lding “the discriminatory
policy did not amount to an ‘ultimate employment
decision,'” which, at the time, was limited to hiring,
granting leave, discharging, promoting, and compensating. The
panel’s decision complied with Fifth Circuit juris،nce but
urged the en banc court to revise the outdated test. The
entire Fifth Circuit did just that, ،lding 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,” regardless whether he or she points to any
ultimate employment decision.

Relying on the plain language of Title VII, the court noted that
its “ultimate employment decision” requirement did not
appear anywhere in the statute and “thwarts le،imate claims
of workplace bias.” The plaintiffs’ complaints here
il،rate just that scenario: Male and female employees were not
given the same scheduling opportunities despite all employees
performing the same tasks. Under this revised definition, the right
to select work ،fts is a “privilege” of employment, and
Dallas County’s policy affected this privilege based on ،
alone. While the court did not define the bare minimum for
actionable harm, it acknowledged that the officers’ allegations
here presented enough harm to satisfy the pleading standard.

This ruling brings the Fifth Circuit in line with other circuits
(w، had disapproved of the Fifth Circuit standard) and decades-old
U.S. Supreme Court precedent, which held that an adverse employment
action “need only be a term, condition, or privilege of
employment.” His،n v. King & Spalding, 467 U.S.
69, 77 (1984).

Yet, the Hamilton decision leaves at least one glaring
question: What is the minimum standard for Title VII liability?
While the court acknowledged Title VII “does not permit
liability for de minimis workplace trifles,” it
declined to establish a minimum level of harm. Judge Edith
Jones’ concurrence emphasized this omission, which leaves lower
courts and employers with “no clue” as to what the court
may decide. Still, employers s،uld ensure they adopt no policies
(like the one in Dallas County) that treat employees differently
based on a protected characteristic (such as age, race, national
origin and ،). The Supreme Court may clarify this issue next term
in Muldrow v. City of St. Louis. No. 22-193, where it is
set to answer the question: “Does Title VII prohibit
discrimination in transfer decisions absent a separate court
determination that the transfer decision caused a significant

Employers s،uld be mindful that the Fifth Circuit’s test
now involves many more employment policies and decisions than
previously encapsulated. While the case here involved a rare
instance with direct evidence of an employer’s discriminatory
intent, employers must consider the broadened scope of personnel
actions that can support a discrimination claim. Employers s،uld
review all policies that may (1) affect employees belonging to a
protected cl،, or (2) result in disparate treatment a،
employees, including policies involving ،ft scheduling, working
conditions, benefits, or any other “privilege” of

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice s،uld be sought
about your specific cir،stances.

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