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In Hamilton v. Dallas County, 2020 U.S. Dist. LEXIS 223831, 2020 WL 7047055, at *2 (N.D. Tex. Dec. 1, 2020), a federal district court judge dismissed a lawsuit by female Dallas County detention officers alleging that a gender-based decision related to weekend work schedules violated Title VII of the Civil Rights Act of 1964.  At the root of that case was the fact that, although male and female officers received the same number of days off during a workweek, only male officers were permitted to take both weekend days off.  The female officers complained about the scheduling policy, but the County maintained the policy, citing safety concerns. 

The basis for the trial court’s decision to dismiss the lawsuit was Fifth Circuit precedent limiting actionable behavior under Title VII to that which rises to the level of an “ultimate employment decision,” as opposed to actions related to “terms, conditions or privileges of employment.”  Under that precedent, ultimate employment decisions are typically limited to decisions such as hiring, firing, promoting, granting leave, and compensation.  Terms, conditions or privileges of employment relate to less-than-ultimate employment decisions—in this case, scheduling.  Although there is not a complete split amongst the federal circuit courts, courts other than the Fifth Circuit follow less stringent standards than the ultimate employment decision rule, purportedly based on the text and intent of Title VII.

A three-judge panel for the U.S. Fifth Circuit Court of Appeals subsequently affirmed the trial court’s dismissal in 2022 based on the well-established Fifth Circuit precedent.  However, the Fifth Circuit then vacated the decision and granted a rehearing en bancHamilton v. Dallas Cnty., 42 F.4th 550, 557 (5th Cir.), reh’g en banc granted, opinion vacated, 50 F.4th 1216 (5th Cir. 2022).  The en banc rehearing was urged by the very three-judge panel that affirmed the district court’s decision, which stated in its reasoned opinion:

The strength of the allegations here—direct evidence of a workforce-wide policy denying full weekends off to women in favor of men—coupled with the persuasiveness of [existing case law] make this case an ideal vehicle for the en banc court to reexamine our ultimate-employment-decision requirement and harmonize our case law with our sister circuits’ to achieve fidelity to the text of Title VII.

Id. at 557 (internal citations omitted).

On January 23, 2023, the full Fifth Circuit reheard the case, including oral arguments related to whether decisions about employee work schedules based on gender constitute actionable adverse employment actions under Title VII.  Dallas County maintained its argument that the ultimate employment decision rule already recognized by the Fifth Circuit is the appropriate standard for actionable disparate treatment under Title VII, and that loosening the standard to include less significant disparate treatment goes beyond what Title VII permits and will cause a flood of unmanageable litigation.  The female detention officers contended that the rule improperly screens out legitimate Title VII discrimination complaints, and that the Fifth Circuit should adopt a less stringent standard used by other circuits that considers decisions made on the basis of a protected characteristic to fall under Title VII protection as terms, conditions, or privileges of employment—even if those decisions are not ultimate employment decisions.

The fact that the Fifth Circuit granted a rehearing en banc, coupled with the above-mentioned commentary from the Court’s three-judge panel in affirming the lower court’s dismissal, illustrates the Court’s interest in this issue.  But it remains to be seen what different rule the Fifth Circuit will adopt, if any, and how employers in the Fifth Circuit will navigate any changes to the standard through revised policies or other measures.