Can you have an employment policy that is clearly based on gender? What if it doesn’t affect an “ultimate employment decision,” such as hiring, firing, promoting, granting leave or compensation? Last year, we told you about a sheriff’s department in Texas with a scheduling policy that was clearly based on gender. At that time, the Fifth Circuit strictly interpreted what may affect a plaintiff’s “terms, conditions or privileges of employment” and determined that only ultimate employment decisions could be adverse employment actions. Because the female officers were challenging a scheduling policy (rather than an ultimate employment decision), the court affirmed the trial court’s dismissal of the case.  

Why are we talking about this again? The Fifth Circuit may be reconsidering this ultimate employment decision threshold.

What’s Old and What’s New?

In Hamilton v. Dallas County, an employer, a jail, instituted a scheduling policy entitling all employees to two days off each week. Like most employees, all the officers wanted the weekend off, however, only male employees were permitted to take off both weekend days. The employer based the scheduling policy on gender, explaining that it believed it was safer for the male employees to be off during the weekend.

The female officers objected, claiming that the policy discriminated against them based on their sex. Generally, gender-based employment practices violate federal and state anti-discrimination laws. In this case, however, the court did not reach the question of whether the gender-based policy was okay. Instead, a three-judge panel of the Fifth Circuit affirmed the trial court’s dismissal of the female employees’ claims because scheduling is not an ultimate employment decision.

The Fifth Circuit vacated its decision and granted a rehearing en banc (before all of the Fifth Circuit judges) to reexamine its ultimate employment decision requirement and reconsider the court’s precedent.

What’s Next?

The full Fifth Circuit Court heard the case on January 23, 2023, and has not yet issued a decision, but the fact that it took up the issue en banc suggests the court may be ready to depart from the ultimate employment decision requirement. During oral arguments, Dallas County argued the court’s ultimate employment decision is the appropriate standard and lowering the threshold would cause a flood of litigation. On the other hand, the female employees asserted the Fifth Circuit should adopt a less stringent standard as used by other circuit courts. If the Fifth Circuit lowers the threshold, it could broaden employees’ ability to bring claims involving any adverse employment action less than an ultimate employment decision (i.e., scheduling, disciplinary action, performance evaluations, etc.). It could also result in a court determining whether the jail can have a gender-based scheduling policy for safety reasons. In the meantime, employers should re-examine their policies and ensure they comply with all federal and applicable state law. Please watch this space for future updates.