If you are an employer covered by the federal Fifth Circuit (Texas, Louisiana and Mississippi), you are probably familiar with the “ultimate employment decision” standard: In determining whether an employee suffered an adverse action under Title VII, you look to only “ultimate” decisions (e.g., hiring, termination, non-promotion). The landscape has just changed. In a fairly broad en banc ruling (meaning all the judges heard the case), the Fifth Circuit has now done away with that rule. From now on, the Fifth Circuit courts will look solely to the text of Title VII to determine whether someone suffered an adverse action. By doing so, has the court opened up Title VII to a new wave of claimants?

Women Working on the Weekends

We wrote about the initial Fifth Circuit decision here and here. In the underlying case, women detention officers in Dallas County were not allowed to take off both days in a weekend while male officers could. Several women officers filed a sex discrimination claim under Title VII. The district court dismissed their claim by saying that this discriminatory scheduling policy was not an “ultimate employment decision” and could not be the basis for a Title VII suit. The district court based its decision on established Fifth Circuit law that adverse employment decisions only included things such as hiring, granting leave, discharging, promoting or compensation. Simple scheduling decisions did not fit under that classification.

Initially, the three-judge panel for the Fifth Circuit agreed with the lower court. Even noting that the employer did not dispute its discriminatory intent, the panel felt it had to follow decades of decisions holding that an adverse action had to be an ultimate employment decision. However, the panel encouraged the entire Fifth Circuit to look at this law because it did not appear to match up to the actual text of Title VII.

Turn to the Text

The full court started by looking at the actual text of Title VII. While the court recognized that it had been applying the “ultimate employment decision” standard for over 30 years, it had to admit that such a term does not exist in the language of Title VII. In fact, while the text of Title VII does prohibit employers from discriminating when making decisions on hiring, refusing to hire, discharging and compensation, it also makes it illegal for an employer to otherwise discriminate against an employee with respect to terms, conditions or privileges of employment. The Fifth Circuit also recognized that the U.S. Supreme Court has held that you can have a Title VII claim for discrimination in the terms, conditions or privileges of employment, not just decisions on discharge, hiring or loss of pay.

In looking at the female detention officers’ claim, the court held that their claim fell into that “catchall category” of “terms, conditions, or privileges of employment.” The right to pick certain work shifts based on seniority is a privilege of employment, and thus covered by Title VII. Therefore, their claim should go forward.

How Far Does This Go?

The majority opinion recognized that the phrase “terms, conditions, or privileges of employment” is fairly broad. The county argued that Title VII should not extend to “de minimis” employment disputes, like scheduling. The Fifth Circuit recognized that the Supreme Court had cautioned judges not to “transform Title VII into a general civility code for the American workplace,” but the opinion noted that requiring weekend work only from female officers was a tangible, objective and material instance of sex discrimination in the terms of employment.

Several judges issued a concurring opinion in which they raised the same fear as the county. They agreed with the court’s decision in this case but feared that by removing the “ultimate employment decision” requirement, employers will have “no clue” as to what is the minimum standard for Title VII liability. The judges noted that other claims under Title VII, like hostile environment, retaliation and constructive discharge, require “threshold standards connoting objective, material injury.” They encouraged the court to wait until the Supreme Court weighs in to establish the bottom line standard.

What Should We Do?

First, don’t require only women to work on the weekends (or do anything else without putting some serious thought into it). Part of the reason this case interested the Fifth Circuit was due to the obviousness of the discriminatory decision. Female officers were prohibited from some benefit because they were female. Not every employment decision has such a stark appearance. There are more subtle actions an employer may take that could be perceived as discriminatory. 

Second, keep an eye out for any scheduling or otherwise on-the-job decisions that may adversely affect a group based on the Title VII classifications. It is fair to say that the Fifth Circuit has probably widened the door for claimants, but we are not sure just how much. The Supreme Court could give some direction on where the floor is for Title VII liability, but employers should avoid any actions that would make them a cautionary tale.