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.