Employers Within the Fifth Circuit Are Now Open to More Claims Under Title VII with the Abandonment of the Previous Title VII “Ultimate Employment Decisions” Rule

By: Dallas F. Kratzer III, Kaitlin L. Robidoux

Published: August 22, 2023

The Fifth Circuit no longer limits Title VII claims to “ultimate employment decisions” per the en banc decision in Hamilton v. Dallas County.

In Hamilton, a group of female officers alleged that the Dallas County Sheriff’s Department violated Title VII by adopting a scheduling policy that allowed only male officers to “select full weekends off” and permitted female officers to only “pick either two weekdays off or one weekend day plus one weekday.”* Title VII prohibits discrimination in employment on the basis of sex, race, color, religion, and national origin.

On Dallas County’s motion, the district court dismissed the complaint because the policy was not an “ultimate employment decisions such as hiring, granting leave, discharging, promoting, and compensating.” On appeal, a panel affirmed, noting that it was bound by circuit precedent. The Fifth Circuit then accepted the case for en banc review.

The en banc court determined that Title VII reaches beyond “ultimate employment decisions.” Writing for the majority, Judge Don R. Willett observed that the “ultimate employment decisions” rule was based on a narrow reading of the statute applied by only the Fifth Circuit and a 30-year-old misinterpretation of another case.

Judge Willett then observed that the text of Title VII liability is not so restrictive and thus dispatched the “ultimate employment decisions” rule. He then explained that “the days and hours that one works are quintessential terms or conditions of one’s employment” and were previously a seniority-based privilege, so the officers adequately pleaded their claim.

Hamilton aligns the Fifth Circuit with its sister circuits and the U.S. Supreme Court. While Title VII liability extends beyond “ultimate employment decisions,” it still “does not permit liability for de minimis workplace trifles.” Dallas County has until November 16 to petition the Supreme Court for certiorari, but it is unlikely that the Supreme Court will accept this case for review because the Fifth Circuit’s prior standard was an anomaly. The Fifth Circuit covers Texas, Louisiana, and Mississippi.

For assistance or questions concerning Title VII liability and other employment law concerns, please contact the authors or any member of the Steptoe & Johnson Labor & Employment Compliance Team.

Our attorneys can review and update policies, consult with you about the implications of this decision on your business, and work with you on your employment-related needs.

*All quotes are edited for readability.

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