Earlier this month, the Fifth Circuit Court of Appeals (covering Texas, Mississippi, and Louisiana) issued an en banc decision in Hamilton v. Dallas County holding employees no longer have to show they were subject to an “ultimate employment decision” in pleading Title VII discrimination claims.
Previously, Title VII discrimination claimants in the Fifth Circuit had to establish an “ultimate employment decision” such as hiring, firing, granting leave, promoting, or unfairly compensating employees. Now, plaintiffs need only allege discrimination affecting “terms, conditions, or privileges of employment.” This brings the Fifth Circuit standard in line with many other circuits, including the Fourth, Sixth, Eleventh, and D.C. Circuits.
Hamilton involved a Dallas County policy allowing male detention center officers to have full weekends off while female officers were not. The Fifth Circuit was not persuaded that this sex-based scheduling policy was acceptable under Title VII’s statutory text.
Hamilton broadens the types of personnel actions providing the basis for a cognizable Title VII discrimination claim in the Fifth Circuit. However, the Court did not define a particular standard for “terms, conditions, or privileges of employment,” other than reminding us that “de minimis workplace trifles” are not enough.
At the very least, this decision serves as a worthwhile reminder that “[n]owhere does Title VII say, explicitly or implicitly, that employment discrimination is lawful if limited to non-ultimate employment decisions.”
Employers with operations in the Fifth Circuit should review their policies to ensure (1) they are consistent with the new standard and (2) they are being neutrally applied.