Fifth Circuit: Expanded Title VII Exposure for Employers


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August 18, 2023



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Quick Look

  • Fifth Circuit expands exposure for Title VII liability by finding that employers can be held liable for disparate treatment under Title VII for decisions made regarding hiring, firing, compensation, or “the terms, conditions, or privileges” of employment.
  • Employee scheduling qualifies under “terms, conditions, or privileges” of employment.


The Fifth Circuit has expanded its definition of what constitutes an adverse employment action when establishing liability under Title VII, finding that a plaintiff can now allege a disparate-treatment claim under Title VII if they plead discrimination in any hiring, firing, compensation, or decision affecting the “terms, conditions, or privileges” of employment. The Fifth Circuit previously limited actionable adverse employment actions to “ultimate employment decisions,” a term that included only hiring, firing, granting leave, promoting, or compensating an employee.

In Hamilton v. Dallas County, nine female detention officers sued Dallas County, claiming sex-based discrimination stemming from the County’s scheduling policy. Specifically, the County used a sex-based scheduling policy to determine each officer’s two days off each week. Under the policy, only male officers were given the option of having a full weekend off from work whereas women officers were only permitted to take two weekdays or one weekend day plus one weekday off. Initially, the plaintiffs’ claim was dismissed because the district court determined that the Circuit’s existing precedent required a showing of an “ultimate employment decision,” and that changes to an employee’s work schedule, such as the denial of weekends off, did not constitute an “ultimate employment decisions.” The plaintiffs then pursued this interpretation to the Fifth Circuit.

In deciding the case, the Fifth Circuit noted that the plain language of Title VII does not limit actionable disparate treatment liability to only “ultimate employment decisions,” and in fact, prohibits discrimination for both “ultimate employment decisions” and decisions “with respect to [employees’] compensation, terms, conditions and privileges of employment.” The Fifth Circuit also noted that the United States Supreme Court has recognized that “any ‘benefits that comprise the incidents of employment, or that form an aspect of the relationship between the employer and employees’ … falls within Title VII’s ban on discrimination” and that Title VII’s test “is not limited to ‘economic’ or ‘tangible’ discrimination.”

In applying this standard to the current case, the Fifth Circuit found that a full weekend off is a preferred shift for both men and women, and by switching from a seniority-based scheduling system to one based on sex, the County was denying the female officers a “privilege” of their employment that was otherwise provided to the male employees. Ultimately, the Court found that the plaintiffs had met their burden of establishing a discriminatory adverse employment action that was based on their sex, and the case was sent back to the district court for further interpretation.

This ruling brings the Fifth Circuit precedent more in-line with the application of Title VII liability in other Circuits. However, the Court specifically noted that they were not addressing the “minimum workplace harm” that a plaintiff must allege for purposes of showing discrimination. Therefore, employers in the Fifth Circuit should continue to monitor application of this new standard.

Action Items

  1. Review workplace policies for prohibiting discrimination, harassment, and retaliation.
  2. Conduct regular workplace training on anti-discrimination and anti-harassment.
  3. Consult with legal counsel when making decisions that affect the terms, conditions, and privileges of employment to ensure compliance with anti-discrimination laws.

Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser. © 2023 ManagEase