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.

A case currently before the Fifth Circuit involves workplace scheduling: one of the “non-ultimate” employment-related decisions that, as of this writing, cannot support a discrimination claim. In Felesia Hamilton, et al. v. Dallas County, female employees at the Dallas County Jail claimed that their employer instituted a discriminatory scheduling policy based on gender. The jail’s employees are entitled to two days off during each calendar week, and most prefer to use those off days on weekends. The jail, however, established a scheduling policy that only allowed male officers to take both Saturdays and Sundays off. Female officers were permitted to take off two weekdays or a combination of one weekday and one weekend day. A supervising sergeant at the jail allegedly explained to the plaintiffs that the scheduling mechanism was, in fact, based on gender because the jail believed “it would be safer for the male officers to be off during the weekends as opposed to during the week.”

The Hamilton case is a relatively rare example where the plaintiffs allege direct—as opposed to circumstantial—evidence of discrimination. The plaintiffs claimed the sergeant openly revealed that the jail instituted a scheduling system that took account of employees’ gender. Gender-based employment practices generally violate federal and state law. Yet in August 2022, the Fifth Circuit affirmed the trial court’s decision to dismiss the jail employees’ complaint for failure to state a plausible claim for relief. The Court’s decision solely turned on the fact that the employees complained about their work scheduling, not demotion, firing, pay, or other workplace decisions considered to be “ultimate employment decisions.”

Critically, the three-judge Fifth Circuit panel that heard the Hamilton appeal openly held its nose when it ruled in the Dallas County Jail’s favor. The Court noted that it was constrained by its own prior precedent limiting employment discrimination claims to ultimate employment actions. The Court also suggested that this judicially-established limitation may contradict the plain language of Title IX, which generally speaks of “terms, conditions, or privileges” of employment, not actions of a particular nature or severity. And the Court noted that the Fifth Circuit’s standard for employment discrimination claims is out of step with that of other courts nationwide. The panel concluded by suggesting that the plaintiffs should pursue en banc review of the decision by the entire membership of the Fifth Circuit, which—unlike a single three-judge panel—can reexamine the Court’s precedent.

The jail employees took the panel’s invitation, ran with it, and asked the Fifth Circuit for en banc reconsideration. That request was granted, and the en banc Court heard the case on January 24, 2023. The full Court has not yet issued a decision. The three-judge panel’s earlier expression of open disagreement with the Court’s existing “ultimate employment decision” requirement and eagerness to reconsider the issue in the en banc format suggest, however, that the Fifth Circuit’s membership may be ready to drop the requirement.

If the Fifth Circuit no longer requires plaintiffs to allege an ultimate employment action on the level of a compensation or hiring/firing/leave decision, the door for plaintiffs who wish to bring a discrimination claim would open wider. Employers may, therefore, need to prepare for a broader swath of discrimination claims to get judicial consideration. Courts in the Fifth Circuit would likely begin to consider other workplace actions – such as those regarding scheduling and working conditions – when analyzing discrimination claims. But it is not yet clear where the Fifth Circuit would draw the new line for discrimination plaintiffs if it reconsiders the current standard.

We will provide an update when the en banc Fifth Circuit issues its decision in Hamilton. In the meantime, if you have any questions about Title VII, ADEA, or state law discrimination claims or other employment issues, please contact Oleg Nudelman at onudelman@thompsonhorton.com.