The Fifth Circuit Adopts a New Standard for Discrimination Claims and Allows Suits Based on Workplace Actions that Affect the “Terms, Conditions, and Privileges of Employment”

The Fifth Circuit Court of Appeals has broadened the scope of employment actions that may become grounds for an employment discrimination lawsuit and reversed its longstanding precedent that previously required plaintiffs to show they experienced a discriminatory ultimate employment decision, such as being hired, granted leave, discharged, promoted, or compensation issues. On August 18, 2023, the Fifth Circuit issued an en banc decision in the Felesia Hamilton, et al. v. Dallas County case and adopted a new threshold for discrimination lawsuits. The Fifth Circuit will now allow plaintiffs to sue if they claim that discrimination affected the “terms, conditions, and privileges” of their employment. This is a lower threshold than the prior “ultimate employment decision” standard.

The Fifth Circuit noted that “de minimis workplace trifles” are still insufficient to establish a discrimination claim. The Court, however, declined to give lower courts and employers more guidance on the threshold that will now apply in discrimination lawsuits and suggested the standard will be fine-tuned in future decisions. As is, the Fifth Circuit’s decision may lead to an increased number of employment discrimination lawsuits and make it more difficult for employers to obtain dismissal of claims at early stages of litigation.

Summiting Mt. Clemens: The Fifth Circuit Reminds Employers that Failing to Maintain Accurate Time Records Could Be a Very Costly Mistake

The Fair Labor Standards Act requires employers to create and maintain accurate records of hours worked each workday and each workweek by non-exempt employees.  These types of records are commonly used to prove overtime and minimum wage violations—but what are employees supposed to do when their employer not only fails to properly compensate them, but also fails to properly create or maintain the very documents needed to prove their claims?

Are Your Employment Practices Up to Snuff, or Evidence of Pretext?

The factors you rely on to promote or hire one candidate over another may put you at risk of violating Title VII of the Civil Rights Act.

Title VII prohibits employers from discriminating based on race, color, religion, sex, and national origin in decisions related to hiring, firing, promotion, and compensation.  In Watson v. School Board of Franklin Parish, 2023 WL 2054308 (5th Cir. Feb. 16, 2023), the Fifth Circuit found that the reasons proffered by a school district for selecting one candidate over another were unworthy of credence and could be based on race.  Why?  Read more to find out.

 

The Great Pronoun Debate Continues Unresolved!

Last week the Seventh Circuit issued its long-awaited decision in Kluge v. Brownsburg Comm. Sch. Corp., __ F.4th ___, 2023 WL 2821871 (7th Cir. 2023), a case involving a high school music teacher (Kluge) who was terminated (or forced to resign) for refusing to use the gender-preferred names and pronouns of transgender students in his class, which he objected to on religious grounds.

The Fifth Circuit Reconsiders What Workplace Actions May Form the Basis of a Discrimination Claim

The Fifth Circuit Court of Appeals could soon broaden the scope of employment actions that may serve as grounds allowing an employee to file a discrimination claim. Currently, Fifth Circuit precedent requires plaintiffs to show they experienced a discriminatory ultimate employment decision, such as being hired, granted leave, discharged, promoted, or compensation issues. Those who claim they suffered other discriminatory conduct that falls short of the “ultimate” action bar cannot pursue a discrimination claim. The Fifth Circuit, however, may be in the process of reconsidering and eliminating that requirement.

Federal law under Title VII and the Age Discrimination in Employment Act (ADEA)—as well as parallel Texas state anti-discrimination law—prohibits employers from discriminating against any person with respect to their compensation or the “terms, conditions, or privileges” of their employment on the basis of the employee’s race, color, religion, sex, age, or national origin. The Fifth Circuit’s decisions—unlike most other federal courts nationwide—have limited the availability of discrimination claims to circumstances when an employee experiences an “adverse employment action” that constitutes an “ultimate employment decision.” In other words, Fifth Circuit precedent strictly defines and limits the types of events that alter the “terms, conditions, or privileges” of employment. The Court has repeatedly held that “ultimate employment decisions” only include events such as hiring, granting leave, discharging, promoting, or compensation. A plaintiff who has not experienced one of these adverse employment actions cannot bring a discrimination claim in Texas federal or state courts.

STATS 101: EEOC Filings are Still Down, but Certain Claims are More Popular than Ever

Recent data published by the EEOC shows a continuing downward trend in the number of employment-related charges. For example, EEOC data shows a decline of more than 27,000 charges filed annually in 2021 as compared to the number of charges filed in 2014. There are a number of factors contributing to this decline, including the impact of COVID-19 and the resulting labor shortages and—until recently—the relative ease of finding new employment. As the country continues to recover from the pandemic and face uncertain economic conditions, however, digging a little deeper into the data can reveal a few trends that may help guide educational employers in addressing areas of employment challenges that are certain to continue.