Fifth Circuit: Discrimination More Than “Ultimate Employment Decisions”

Darrell VanDeusen
Darrell VanDeusen

Since July 2, 1965, Title VII has made it illegal 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.” 42 U.S.C. § 2000e-2(a)(1).   Nowhere does the law require that the discrimination be an “ultimate employment decision,”  like a termination, demotion, or a failure to hire.

For nearly 30 years, however, the Fifth Circuit, which covers Mississippi, Louisiana, Texas, and (yes, really) the Canal Zone held that an “ultimate employment decision” was precisely what was needed to proceed with a disparate treatment claim in that court.   See Dollis v. Rubin, 77 F.3d 777 (5th Cir. 1995).   It reached that conclusion by grossly misreading the Fourth Circuit’s decision in Page v. Bolger, 645 F.2d 227, 233 (4th Cir. 1981).  The Fourth Circuit pointed that out in Von Gunten v. Maryland, 243 F.3d 858, 866 (4th Cir. 2001).

And the Supreme Court has, for years, recognized that discrimination need not be an “ultimate” employment decision.  “Hostile work environment” is the easiest example here.

But the wheels of justice turn slowly when precedent is respected.  It took until last week for the Fifth Circuit to come around in an en banc decision in Hamilton v. Dallas County, No. 21-10133 (Aug. 18, 2023)

Dallas County is in Texas.  The Sheriff’s Department gave detention services employees two days a week off.  According to the court, beginning in April 2019, “[t]he department use[d] 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.”   Yes, you read that correctly.  In 2019.  If you think I am making up the facts, read the case yourself.

The County did not dispute the discriminatory intent of the new policy. In fact, the court noted that a supervisor “explained that the rationale behind this policy is ‘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.’”  It was also acknowledged that weekends were the preferred days off.  Nine female detention officers sued.

Citing Dollis, the district court dismissed the lawsuit.  Because “the denial of weekends off is not an ultimate employment decision,” the Fifth Circuit panel affirmed the district court’s dismissal. But that panel expressed misgivings at having to follow precedent, noting that “[t]he conduct complained of here fits squarely within the ambit of Title VII’s proscribed conduct.”  Since Dollis stood in the way, the panel urged the full court to “reexamine our ultimate-employment-decision requirement” in light of our deviation from Title VII’s plain text.” 

And so it came to pass that the full Fifth Circuit changed the tune.  “Today we hold,” said the court, “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. 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.  Here, 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.”

That is all well and good.  But, despite some “hair on fire” reporting suggesting this decision will open the floodgates of litigation, that is unlikely.  In Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 78 (1998), the Supreme Court cautioned federal courts not to “transform Title VII into a general civility code for the American workplace.”  Title VII does not permit liability for “de minimis workplace trifles” and all of the Circuits have adopted some limitation on what is actionable and what is not.

The take-away here?  It is easy to agree with the result in this case, particularly when the sex discrimination was so blatant in the Sheriff’s Department.  For me, though, it is the (far too late) correction of a misreading of the Fourth Circuit’s decision.  Dollis was a per curium decision (meaning no single judge took the “credit” for writing the opinion).  So, it’s possible that a law clerk misread Page v. Bolger, and that for nearly 30 years plaintiffs in the Fifth Circuit paid the price. 

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