Update – August 18, 2023
On August 18, 2023, the full Fifth Circuit Court of Appeals, sitting en banc, overruled the decision made by a three-judge panel and eliminated the requirement that actionable claims of adverse employment decisions under Title VII must involve an “ultimate employment decision.” For decades, the Fifth Circuit limited liability for employers under Title VII disparate treatment claims to “ultimate employment decisions,” like hiring, firing, promotion, or pay. In this ruling, the court recognized that the text of Title VII contains no such limitation, and instead clearly allows for liability for other discriminatory decisions. The court further ruled that an employee’s work schedules—which in this case, were restricted so women could not take full weekends off—are “quintessential” terms and conditions of employment. The plaintiffs, nine female detention service officers, are now free to demonstrate that the scheduling policy put in place by Dallas County illegally discriminated against them based on sex.
Update – August 11, 2022
On August 3, 2022, a three-judge panel on the Fifth Circuit Court of Appeals upheld the dismissal of the complaint made by nine female detention service officers. The court came to this conclusion despite the fact that allowing men, but not women, to have full weekends off, solely on the basis of sex, should surely constitute impermissible sex-based discrimination. Unfortunately, the panel felt they were bound by precedent within the Fifth Circuit that an “adverse employment action” under Title VII can only be an “ultimate employment decision,” like hiring, firing, or promoting. Under that precedent, denying only female employees full weekends off—even when the decision was made with explicitly discriminatory intent—is not a violation of Title VII, and therefore the case must be dismissed.
But there may still be hope. Several other Courts of Appeal have confronted similar questions around ultimate employment decisions and come to the opposite conclusion regarding the requirements of Title VII. Some of these decisions have even required that courts overrule prior cases. The Fifth Circuit panel suggested that if the employees appealed, the full Fifth Circuit could potentially reconsider this question (en banc review) and reexamine their precedent to better align both with other courts and to “achieve fidelity to the text of Title VII.”
The National Women’s Law Center, along with the ACLU Women’s Rights Project, the ACLU of Texas, our pro bono partners at Katz, Marshall & Banks, and 41 organizations committed to women’s and civil rights, filed an amicus brief in the 5th Circuit on May 21, 2021 in support of nine Black women working at the Dallas County Jail. The Jail had instituted a policy wherein schedules were restricted by sex—women working at the Jail were not allowed to schedule off the full weekend, but men were allowed to take off both Saturday and Sunday. The County is arguing that the sex-based scheduling policy does not violate Title VII because it does not affect job duties, compensation, or benefits. Our amicus brief details why this policy is sex discrimination under Title VII and the harm to all women—particularly women of color and women with caregiving responsibilities—that occurs when employees are denied the ability to control their work schedules. For more background on the case, please read our blog.