In its recent en banc opinion in Hamilton v. Dallas County, the U.S. Court of Appeals for the Fifth Circuit overturned nearly 30 years of precedent that required Title VII plaintiffs to allege that they had been subjected to an “ultimate employment decision.”

As a result, a host of heretofore unactionable conduct just became subject to suit in federal court in Texas, Louisiana, and Mississippi. (For the uninitiated, an en banc review means oral argument in front of all of the court’s judges. That’s a lot of judges, a lot of questions, and a daunting task for the attorneys, to say the least.)

 A dismissal despite stunning admissions

The facts of the case are simple. The Dallas County (Texas) Sheriff’s Department had a policy that allowed male detention officers to select full weekends off, while allowing female detention officers to select only one weekend day off. In short, male officers could get full weekends off, but their female counterparts never could.

Some of the female officers sued under Title VII, contending that the policy discriminated based on sex. That is not surprising.

What is surprising is that the County never seriously contested that its scheduling policy was “sex-based,” causing one appellate court judge to remark that “rarely in recent years have we seen such an admission.” And what is even more surprising is that a federal district court judge dismissed the lawsuit. No discovery. No depositions. Just a motion and dismissal.

And, perhaps most surprising of all is that the judge was not wrong. (At least, not at the time.) He dismissed the lawsuit because the Plaintiffs did not allege that an “ultimate employment decision” – such as hiring, granting leave, discharging, promoting, and compensating – had been made.

A three-judge panel of the Fifth Circuit affirmed the dismissal for the same reason. But the panel noted that the case presented an “ideal vehicle” for the full court to align itself with Title VII’s text. (That must have taken the shine off the County’s victory.)

After accepting the invitation, all 17 Fifth Circuit judges agreed that the dismissal of the lawsuit should be reversed and that the suit should be allowed to proceed. But there was disagreement about whether and how to define the type of harm needed for a valid Title VII claim.

Evisceration of the “ultimate employment decision” requirement

In an opinion laden with visual images, the Court majority concluded that “our ultimate employment decision rule stands on a fatally flawed foundation [and] we flatten it today.” Ouch!

As for the fatal flaw, the Court looked to the text of Title VII which, sans the bold face, makes it “an unlawful employment practice for an employer … to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his [or her] compensation, terms, conditions, or privileges of employment because of such individual’s [protected characteristic].” In a bow to the obvious, the Court noted that the text of Title VII does not require an ultimate employment decision. More to the point, it recognized that imposing such a requirement would render meaningless the prohibition against discrimination with respect to terms, conditions, or privileges of employment.

As for what it takes to allege discrimination with respect to terms, conditions or privileges of employment, the majority opinion kicked the can down the road. First, it rejected the County’s suggestion that Title VII liability is limited to conduct which “directly causes or [is] likely to cause … loss of or reduced employment compensation.” The majority was more receptive to the argument that discrimination with respect to the terms, conditions or privileges of employment requires a “materiality” or “objective harm” component in order to prevent liability from extending to “de minimis [or] trivial workplace trifles.” But it kicked that can down the road, leaving it to future cases “to determine the floor…for actionable harm.”

Concurrence with the result, but not the can kicking   

Three judges concurred only with the judgment. In other words, they agreed with the flattening of the “ultimate employment decision” standard and sending the case back to the trial court. But that is where the agreement ended.

The concurring judges pointed out that the questions left unanswered by the majority were (1) what kinds of terms or conditions of employment can create an actionable Title VII claim and (2) whether there should be a minimum-harm threshold.  As those judges saw it, “the majority holding amounts to this: we hold that speeding is illegal, but we will not say now what speed is illegal under what circumstances.”

What lies ahead and a (not so bold) prediction

Earlier this summer the U.S. Supreme Court breathed new life into the “undue hardship” standard applicable to employee requests for religious accommodations. That decision raised the bar for employers seeking to defend their denial of such requests.

Now, the Fifth Circuit has opened the door to claims of discrimination with respect to the “terms, conditions or privileges of employment,” a broad category that includes things like scheduling, training programs, and work assignments. And weekends off.

Although both decisions resulted in a sea change for employer obligations, neither provided much in the way of specifics for navigating these new waters. Rather, both left those charts to be drawn by the inevitable stream of lawsuits and decisions that will come during the next several years.

Unless you want to be swept away by that stream, our advice is that discretion is the better part of valor. When dealing with requests for religious accommodations, or employee complaints about the terms or conditions of their employment, move cautiously. Justify your decisions based on the actual, quantifiable impact on the business. Not on speculative, uncertain conclusions or “knee-jerk” reactions.

Borrowing an image from the concurrence in Hamilton, since you now know that speeding is against the law, be careful before you put the pedal to the metal.

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