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Labor & Employment Blog

Labor & Employment Blawg

The Labor & Employment Blog provides employers with breaking news, insights, and legal analysis on the wide range of labor and employment issues facing employers and businesses.  While the Blog provides a general summary of regulation updates, it is not intended to be, and should not be relied upon as, legal advice.  The labor & employment attorneys at Chamberlain Hrdlicka stand ready to counsel employers on the issues they face.

Larry Carbo, Shareholder and Co-Chair

Diana Perez Gomez, Shareholder and Co-Chair

Julie Offerman, Shareholder

Kellen Scott, Shareholder

Leslie Tan, Senior Counsel

Elizabeth Feeney, Associate

AmyJo "AJ" Foreman, Associate

Lucas Meng, Associate

Hannah Strawser, Associate

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The Fifth Circuit Eliminates “Ultimate Employment Decision” Test and Broadens Scope of Actionable Employment Discrimination Claims

On August 18, 2023, the Fifth Circuit Court of Appeals delivered a much-awaited decision that broadens the scope of potential liability for employers under Title VII of the Civil Rights Act. For about thirty years, the Fifth Circuit has applied a more restrictive standard for disparate-treatment liability under Title VII’s anti-discrimination provision—requiring an employee to prove alleged discrimination in connection with an “ultimate employment decision,” such as hiring, granting leave, discharging, promoting, or compensating. No more. The en banc Fifth Circuit has overturned its existing precedent and, following Title VII’s statutory text, clarified that its anti-discrimination provision also extends to discrimination occurring with respect to an employee’s terms, conditions, or privileges of employment.

Nine female corrections officers sued Dallas County in Hamilton v. Dallas County, No. 21-10133, (5th Cir. Aug. 18, 2023), alleging the County’s sex-based scheduling policy violated Title VII’s prohibition against sex discrimination. The County’s policy allowed male officers to schedule both of their days off on the weekends, while female officers were not permitted to do so. The policy required female officers to schedule at least one of their “off days” during the workweek. The district court and appellate panel rejected the corrections officers’ discrimination claims because their complaint about the scheduling policy did not satisfy the Fifth Circuit’s then-existing requirement of an “ultimate employment decision.” Upon full consideration by the Fifth Circuit, the Court held that its previous limitation of actionable adverse employment actions to ultimate employment decisions misaligns with Title VII’s plain wording and thwarts legitimate claims of workplace bias.

The Fifth Circuit acknowledged its holding does not extend Title VII liability to de minimis discrimination or workplace trifles, but the Court declined to address the precise level of minimum workplace harm an employee must allege to state a plausible claim for discrimination with respect to one’s terms, conditions, or privileges of employment. Other circuit courts of appeals have addressed the threshold requirement and require a “tangible,” “objective,” or “material” instance of discrimination in the terms, conditions, or privileges of employment. Without addressing the particular issue, the Court in Hamilton had no trouble declaring that the County’s switch from a seniority-based scheduling system to one based on sex discriminated against the employees in the terms, conditions, or privileges of employment.

If you have any questions about this recent Fifth Circuit decision and what it may mean for you and your business moving forward, we encourage you to reach out to your Chamberlain counsel. 

Chamberlain Hrdlicka’s Labor & Employment Group is available to answer any questions and assist in helping you navigate this broadened scope of employer liability under Title VII. Feel free to forward the Labor & Employment Alerts to others who might be interested. If you have questions, please send an e-mail or call.

  • AmyJo "AJ"  Foreman

    AmyJo "AJ" Foreman is an associate in the litigation section. Her practice focuses primarily on commercial litigation, labor & employment, and appellate matters.

    AJ graduated from the University of Houston Law Center where she was ...

  • C. Larry  Carbo, III

    Larry Carbo maintains an active, nationwide commercial litigation practice and has tried over 30 cases to final verdict in state court, federal court and before arbitration tribunals. Larry focuses on the representation of ...

  • Diana Pérez Gomez

    Diana Gomez is a talented trial attorney with extensive experience in civil lawsuits in state and federal courts. She focuses on complex labor and employment disputes by providing a full range of employment law services to her ...

  • Elizabeth A. Feeney

    Elizabeth "Liz" Feeney is an associate in the Commercial Litigation section, focusing primarily on labor and employment matters. She graduated from the SMU Dedman School of Law and began her career at a mid-sized firm in Fort Worth ...

  • Hannah  Strawser

    Hannah Strawser is an associate in the Houston office and a member of the Firm's Commercial Litigation section, focusing primarily on labor and employment matters.

    Hannah attended the University of Houston Law Center where she was ...

  • Julie R. Offerman

    Julie is an experienced litigation attorney in Chamberlain’s Houston office. She has substantial experience defending employers nationwide in wage and hour class and collective action lawsuits, including matters involving ...

  • Kellen R. Scott

    Mr. Scott maintains a general civil litigation practice in state and federal courts, with particular emphasis on employment law, governmental defense, and civil rights.

    His practice includes the defense of employers and ...

  • Leslie T. Tan
    Senior Counsel

    Leslie Tan is an experienced attorney specializing in labor and employment matters and complex civil litigation. Ms. Tan enjoys guiding employers through challenging situations, from counseling on daily operations to ...

  • Lucas  Meng

    Lucas Meng joined Chamberlain Hrdlicka’s Commercial Litigation practice, specializing in labor and employment. He is an active litigator in federal and state court, where he defends clients in a wide variety of employment law ...