5th Circuit Re-Examines Ultimate Employment Decision Rule

Leah Shepherd By Leah Shepherd February 15, 2023

​A federal appeals court is reviewing a case that could change what constitutes an adverse employment action in workplace discrimination cases. Nine female detention officers at the 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 5th U.S. Circuit Court of Appeals granted the women's petition for en banc review by all the judges on the court. Oral arguments were held Jan. 24, but the 5th Circuit hasn't released its en banc decision yet.

"The concept of adverse employment action is likely to expand beyond what we know it today," said Tiffany Cox Stacy, an attorney with Ogletree Deakins in San Antonio. "It seems to be trending in that direction. We could potentially be facing more and broader claims in the discrimination context."

What Counts as an Ultimate Employment Decision?

Under Title VII of the Civil Rights Act of 1964, employers can't "fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to [their] compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex or national origin."

Plaintiffs alleging discrimination must show they suffered an adverse employment action, such as being fired, suspended, or demoted with less pay. The definition of "adverse employment action" is narrower in discrimination cases than in retaliation cases, Stacy said. There continue to be varying standards among the federal circuit courts regarding this issue, according to an analysis by Jackson Lewis.

In Hamilton v. Dallas County, 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.

The U.S. District Court for the Northern District of Texas ruled in favor of Dallas County in 2020. "Changes to an employee's work schedule, such as the denial of weekends off, are not an ultimate employment decision," the district court said.

The 5th Circuit agreed in August 2022, concluding that the county's scheduling policy giving only male officers full weekends off was not unlawful discrimination under Title VII. The appeals court said it was bound by precedent that held that only ultimate employment decisions can constitute adverse employment actions. However, the three judges who issued the ruling invited the full circuit court to revisit its standard for ultimate employment decisions in discrimination cases.

The Biden administration filed a friend of the court brief in support of the female officers, urging the 5th Circuit to conclude that "shift assignments based on protected characteristics are actionable" under Title VII.

The National Women's Law Center, the American Civil Liberties Union and other groups joined in another friend of the court brief supporting the female officers, stating, "Dallas County's scheduling policy is a relic of a sex-segregated, pre-Title VII world premised on women's second-class status. … For those women who are caregivers—disproportionately women of color—the inability to manage their schedules on the same terms as men imposes an additional, sex-specific harm."

The brief explained how unfair scheduling can hamper an individual's career trajectory and income. Discriminatory policies "convey that members of the disfavored group are less qualified, less valued, and less desirable employees," the brief stated. "This stigma demonstrably impedes women's opportunities, with potential attendant economic effects, ranging from deterring them from seeking promotions to driving them off the job altogether — and in the process, reinforcing the assumption that women are fundamentally unsuited for such work."

Gender discrimination in the workplace doesn't just impact women. It can also erode fellowship, collegiality, collaboration and teamwork. If left unresolved, it can create a toxic work environment that could undermine the success of an organization, according to Deb Boelkes, author of Women on Top: What's Keeping You From Executive Leadership (Business World Rising, 2021).

Tangible Harm Must Be Shown

As things stand now, workers can't claim that an unfavorable schedule is an adverse employment action in a discrimination case, unless the schedule has a disparate impact on a protected group and there's a tangible harm associated with it. For example, there would be tangible harm if the scheduling policy caused someone to miss out on something with monetary value, such as overtime pay, a bonus, or premium pay periods.

"The cautionary tale is making sure the scheduling decisions that you make do not also have some tangible component associated with it," Stacy said. "It's an important concept for employers to be aware of because generally there is a lot of discretion in scheduling."

Depending on the final outcome, the Dallas case could lead to costly legal challenges for employers.

If the 5th Circuit ultimately rules in favor of the female officers, "[a]t a minimum, employers would likely face more detailed discrimination complaints, similar to what we already see in retaliation claims, where any and all trivial harms are brought forward, requiring defensive response from the employer that is intrinsically more expensive to defend in litigation and potentially lessening the likelihood of obtaining summary judgment," Stacy said.



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