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Working for the Weekend: NWLC Files Amicus Brief in Support of Employees Denied Control Over Work Schedules
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.”
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In May 2021, NWLC, the ACLU Women’s Rights Project, the ACLU of Texas, 41 organizations committed to civil rights, and our pro bono partners at Katz, Marshall & Banks filed an amicus brief in the Fifth Circuit in support of nine Black women working at the Dallas County Jail.
In April 2019, the Jail instituted a new policy for how employees arranged their work schedules. Previously, schedules were determined by seniority—employees who had worked there the longest got first pick of the days they would work. Understandably, this meant most senior employees chose to take off Saturday and Sunday. But under the new policy, scheduled days off were restricted by sex. Women working at the Jail were not allowed to schedule off the full weekend; they could only take off partial weekends and had to schedule off one weekday. Why? The Jail claimed—without any evidence—that it was “unsafe for all the men to be off during the week” and “safer for the men to be off on the weekends.”
Right away, this type of overt sex-based policy should be raising red flags.
Under Title VII of the Civil Rights Act, employers cannot make employment decisions—hiring, firing, promotion, pay—based on protected characteristics, including sex. When Title VII was passed nearly 60 years ago, it sought to dismantle facially discriminatory policies that treat some employees worse based on sex—like saying men can schedule off full weekends, but women can’t. The Jail is arguing that the scheduling policy doesn’t violate Title VII because it doesn’t affect “job duties, compensation, or benefits.” In other words, the policy isn’t that big a deal because it doesn’t make the employee’s jobs any worse.
But we know that isn’t true. NWLC has worked for years to highlight the harm to all employees—particularly women of color and women with caregiving responsibilities—that occurs when they don’t have the ability to control their work schedules.
Despite making historic gains in the paid workforce, women continue to shoulder the majority of family caregiving responsibilities, including child care, caring for older family members, and caring for loved ones with disabilities. For Black women and Latinas, care responsibilities are more likely to conflict with work obligations because they are more likely to be both primary breadwinners and primary caregivers for their families. Yet there remain too many workplace policies that have a disproportionate negative impact on caregivers, including unstable and unpredictable work schedules. Many jobs that are primarily held by women—cashiers, housekeepers, and restaurant servers—are notorious for these kinds of abusive scheduling practices that deny employees the right to control which hours they work.
When workers with caregiving responsibilities can’t control their work schedules whether because of a discriminatory sex-based policy or because an employer utilizes just-in-time scheduling real harm occurs. Imagine being unable to take an elderly parent to a doctor’s appointment or scrambling to find child care for atypical hours. Or not being able to attend continuing education or training courses because you couldn’t arrange your shifts to align with the classes. For the women in this case, the scheduling policy meant they missed getting to watch their kids play sports and being able to worship with their friends at church.
At NWLC, we are working to end these workplace practices. We are working with our allies in Congress to pass the Schedules That Work Act and the Part-Time Worker Bill of Rights to eradicate abusive scheduling practices and give employees more predictable, stable, and adequate work hours. And we are in solidarity with these women in Dallas County to explain to the Fifth Circuit why the sex-based scheduling policy violates Title VII.
