“Ultimate” Employment Actions May Not Be Necessary to Establish Title VII Liability


In order to establish a discrimination claim under Title VII, an employee must show, among other things, that they suffered some “adverse employment action.” Traditionally, courts have interpreted that to mean some “ultimate employment decision” (typically involving a direct economic impact, such as a lack of promotion or a termination). But a recent ruling from the U.S. Court of Appeals for the Fifth Circuit, as well as other sister Circuits, has broadened the definition of what constitutes an actionable adverse employment decision. This means that employers may now face greater risk of liability under Title VII.

Case Background. In Hamilton v. Dallas County, the Dallas County Sheriff’s Department allows officers to select two days a week to be off; men were allowed to choose two weekend days while women were not. Nine female officers sued, alleging that the sex-based scheduling policy violated Title VII. But because the scheduling policy did not constitute an “ultimate” employment action under prior Circuit law, a three-judge panel of the Fifth Circuit upheld the trial court’s dismissal of the case. In so doing, however, the panel noted that this case was the “ideal vehicle” for the en banc (or entire) Fifth Circuit to reconsider its adherence to the “ultimate employment decision” requirement.

The Fifth Circuit’s Decision. Taking up the call, the en banc court stated:

Today we hold that a plaintiff plausibly alleges a disparate-treatment claim under Title VII if she pleads discrimination in hiring, firing, compensation, or the “terms, conditions, or privileges” of her employment. She need not also show an “ultimate employment decision,” a phrase that appears nowhere in the statute and that thwarts legitimate claims of workplace bias. Here, giving men full weekends off while denying the same to women—a scheduling policy that the County admits is sex-based—states a plausible claim of discrimination under Title VII.

The Fifth Circuit noted that the “ultimate employment decision” analysis was based on a misinterpretation of the case in which it originated and ignores key language in the law. Characterizing it as lying on “fatally flawed foundations,” the Fifth Circuit rejected this standard in favor of one in which “a plaintiff need only allege facts plausibly  showing  discrimination in hiring, firing, compensation, or in the ‘terms, conditions, or privileges’ of his or her employment.” As applied to the current case, the sex-based scheduling policy falls within the catch-all provision, as the hours one works “are quintessential ‘terms or conditions’ of one’s employment.

The Fifth Circuit cautioned, however, that the harm must be more than de minimis, as Title VII is not “a general civility code for the American workplace.” The Fifth Circuit chose not to establish at this time the “precise level of minimum workplace harm a plaintiff must allege on top of showing discrimination in one’s ‘terms, conditions, or privileges of employment.’” Rather it noted that, whether this means the harm must be “tangible,” “objective,” or “material” (which are standards articulated by other Circuits), the allegations about the sex-based scheduling policy would meet any of these standards.

Lessons for Employers. In so holding, the Fifth Circuit joins a number of sister Circuits that have similarly rejected an “ultimate employment decision” standard, including the Second (as we discussed in our April 2023 E-Update), Fourth, Sixth, Ninth, Eleventh and D.C. (as discussed on our June 2022 E-Update) Circuits. The lesson for employers is that the traditional discrimination landscape is changing, and that they may now face liability under more relaxed standards. It is important for employers to ensure that policies are not discriminatory, even if they do not result in “ultimate employment decisions.”