Fifth Circuit Overturns Title VII Discrimination Law Precedent
Under Title VII of the Civil Rights Act of 1964, §§ 2000e et seq., it is unlawful for an employer “to discriminate against any individual with respect to his compensation, terms, conditions or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1) (emphasis added).
For nearly thirty years, the Fifth Circuit, the federal court of appeals with jurisdiction to hear Texas cases, has applied the “ultimate employment decision” standard limiting Title VII disparate treatment discrimination claims. On August 18, 2023, in Hamilton v. Dallas Cnty., No. 21-10133, the Court abandoned the “ultimate employment decision” standard, aligning its interpretation of Title VII with the majority of other Texas circuit courts as well as United States Supreme Court precedent. This means it will be harder for Texas employers to get certain discrimination cases dismissed in the early stages of litigation.
In Hamilton a group of female detention service officers working for the Dallas County Sheriff’s Department sued Dallas County (after exhausting their administrative remedies) alleging disparate treatment based on sex under Title VII after the county switched from a seniority-based leave policy to a sex-based leave policy. The policy allowed male officers to allocate their weekly two days off to take a full weekend off, whereas female officers could only take one of two days off on the weekend. The lower court dismissed the claim because the pleading didn’t allege a discriminatory “ultimate employment decision such as hiring, granting leave, discharging, promoting, and compensating.” Hamilton v. Dallas Cnty., 2020 WL 704705, at 2 (N.D. Tex. Dec. 1, 2020) (quoting Felton v. Polles, 315 F.3d 470, 486 (5th Cir. 2002)). A Fifth Circuit panel of judges agreed with the dismissal by the lower court because the policy was not an “ultimate employment decision,”; however, it noted that the complained of conduct “fits squarely within the ambit of Title VII’s proscribed conduct: discrimination with respect to the terms, conditions, or privileges of one’s employment because of one’s sex.” Id. at 555 (emphasis added). It then recommended a full court hearing to examine the concerns raised by the panel.
The Fifth Circuit granted rehearing with the full court to address the questions raised by the earlier panel. The Court’s decision acknowledged that the precedent they had been relying on was based on a misinterpretation of a 1981 case, they had unreasonably ignored the broad phrasing of “terms, conditions, or privileges,” and they had unfairly imposed the requirement to show that the complained of adverse employment action was an “ultimate employment decision” (hiring, granting leave, discharging, promoting, and compensating). Ultimately the Fifth Circuit said it would no longer use the “ultimate employment decision standard” and the case was reinstated and remanded to the lower court.
Note: the female officers also brought a gender discrimination claim under the Texas Commission on Human Rights Act contained within Chapter 21 of the Texas Labor Code which has language similar to Title VII. The TCHRA claim was mentioned but not analyzed separately in the Fifth Circuit opinion, so it appears the “ultimate employment decision” standard still applies to TCHRA claims. This means that it may still be possible to get disparate treatment cases dismissed if the employee doesn’t include in the lawsuit a claim of a discriminatory adverse employment decision such as hiring, granting leave, discharging, promoting, and compensating.
The take home message is this: the Hamilton decision will allow employees to bring claims that might have been barred by the prior more stringent Fifth Circuit standard and it may be harder to get disparate treatment discrimination cases dismissed if they are brough solely under Title VII.
Please do not rely on this article as legal advice. We can tell you what the law is, but until we know the facts of your given situation, we cannot provide legal guidance. This website is for informational purposes and not for the purposes of providing legal advice.
