Court Broadens Meaning of Adverse Employment Action

Leah Shepherd By Leah Shepherd August 23, 2023

​A new ruling from the 5th U.S. Circuit Court of Appeals will make it easier for employees to file discrimination lawsuits based on scheduling and other employment-related decisions.

On Aug. 18, the court confirmed that federal anti-discrimination laws can apply to scheduling and other decisions that aren't ultimate employment actions.

Under Title VII of the Civil Rights Act of 1964, employers are prohibited from discriminating against any individual with respect to their compensation, terms, conditions or privileges of employment because of their race, color, religion, sex or national origin. Before this ruling, workers alleging discrimination had to show they suffered as a result of an ultimate employment decision, such as refusal to hire, termination, suspension or demotion with reduced pay.

But under the new ruling, a claim can be based on any decision affecting terms, conditions or privileges of employment, said Tiffany Cox Stacy, an attorney with Ogletree Deakins in San Antonio.

For example, the new ruling could apply to decisions around remote work, lunch breaks, office selection and worksite location, according to Will Manuel, an attorney with Bradley in Jackson, Miss. "It may have opened a Pandora's box of where we go from here," he said.

"I think every practitioner under the sun is amazed at this result—a most surprising left turn for this court," said Jeff Englander, an attorney with Morrison Cohen in New York City.

To bring a discrimination claim involving an unfavorable schedule, employees would have to show it had a disparate impact on a protected group and there was a tangible harm associated with it, such as missing out on overtime pay, a bonus or premium pay periods.

The court didn't define the bare minimum of harm required when a plaintiff alleges discrimination, but it confirmed that Title VII does not permit liability for "de minimis workplace trifles," Stacy said.


In Hamilton v. Dallas County, nine female detention officers at a Dallas County, Texas, jail brought a gender discrimination lawsuit because the county gave only male officers full weekends off. The female officers were required to work at least one day each weekend.

The county argued that female employees didn't suffer an adverse employment action because the scheduling policy did not affect their job duties, compensation or benefits. The female employees argued that the scheduling policy made their jobs objectively worse, so it did count as an adverse employment action.

In 2020, the U.S. District Court for the Northern District of Texas ruled that schedule changes, such as the denial of weekends off, are not an ultimate employment decision.

The 5th Circuit reversed that decision. "The facts alleged paint a clear picture of disparate treatment because of the officers' sex," the court stated.

The case "serves as a reminder to employers that [workplace] decisions should not be made on the basis of any protected category, even when those decisions do not culminate in an ultimate employment decision," Stacy said.

To defend against a discrimination claim, an employer can argue that it based its policy or decision on a legitimate business reason, such as safety concerns or a seniority system, Manuel said. "Bad performance is another thing you can use as a defense, but you've got to have the documentation to back it up," he added.

What Should Employers Do?

Because of the new ruling, "We are going to see a lot more litigation over what constitutes an adverse employment action, at least until the U.S. Supreme Court weighs in," said Keith Markel, an attorney with Morrison Cohen in New York City. "Add this to the list of post-pandemic complaints employees will file to stave off termination or claim retaliation. It's becoming harder and harder for employers to manage their workforce because almost any business decision can be construed as adverse, if an employee doesn't agree with it."

As a result, HR "needs to take a more critical look at employment actions falling short of ultimate employment decisions. This may mean greater [HR] involvement or oversight of progressive discipline, particularly to the extent such discipline might impact an employee's eligibility for a transfer, pay raise, bonus, promotion, or scheduling and shift changes," Stacy said.

In addition, employers should "take a closer look at their current scheduling policies and anticipated changes in those policies" to assess whether the changes are needed for effective business operations, she said.

Markel said HR should "continue to focus on the legitimate business rationales for making employment decisions, regardless of how employees may construe or twist them, so long as those decisions are based on nondiscriminatory reasons. HR professionals should continue to make sure that any decisions and the underlying reasons for those decisions are well documented."

Employers can continue to use a seniority system for scheduling, work shifts and other arrangements, but it must be applied in a race-neutral and gender-neutral way, Manuel said.



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