The Civil Rights Act of 1964 prohibits discrimination on the basis of personal characteristics such as race, color, religion, sex, or national origin. Title VII of the Act specifically addresses discrimination by employers against employees or job applicants.
Title VII applies to public and private employers with 15 or more employees. There is only one very limited exception to the prohibition against discrimination in the workplace and it is when an employer’s action involves a legitimate occupational qualification.
Until recently, the Fifth Circuit Court of Appeals (which has jurisdiction over Texas) had followed a long-standing rule when determining if an employer’s actions violated Title VII requirements. In a case heard this summer, the Court abandoned 30 years of what it called ‘flawed’ law and made it easier for employees to meet the threshold to establish a Title VII discrimination claim.
Title VII Prohibits Discrimination in Employment
Title VII, Section 2000e-2, provides that it shall be 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 compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin …”
How the Fifth Circuit Previously Interpreted Title VII Requirements
It is not uncommon for Title VII discrimination claims to be based on circumstantial rather than direct evidence of discrimination. When direct evidence is not present, the law requires a claimant to prove the following four elements in order to meet the initial burden necessary to proceed with an employment discrimination claim, which include that they are:
- A member of a protected group
- Qualified for the employment position at issue
- Subject to an adverse employment action
- Treated less fairly than other similarly situated employees outside the protected class
For 30 years, the Fifth Circuit had interpreted the parameters of what constituted an adverse employment action very narrowly. If a claimant was not able to show that an employer’s adverse action was done without regard to an ultimate employment decision the burden was not met and the claim would be dismissed. Ultimate employment decisions were limited to hiring, granting leave, discharging, promoting, or compensating.
Recent Fifth Circuit Decision Opens the Door for More Employment Discrimination Claims
In Hamilton vs. Dallas County, female detention officers sued the Dallas County Sheriff’s Department alleging that sex-based scheduling policies violated Title VII’s prohibitions against sex discrimination.
The lower court had dismissed the officers’ claims because implementing a discriminatory scheduling policy did not involve an ultimate employment decision and therefore was not an adverse employment action under established law.
The scheduling policy the county implemented required all detention officers to pick two days off each week. However, only male officers could elect to take two consecutive weekend days off. Female officers could only select one weekend day each week and one weekday or two weekdays. Female officers were never allowed to take off consecutive weekend days.
The previous scheduling policy had been based on seniority. Dallas County admitted the new policy was discriminatory but defended its actions based on safety concerns for male officers if they had to work weekends.
The primary issue the Court needed to resolve was whether the female officers had experienced an ‘adverse employment action’ when Dallas County switched from a seniority-based scheduling system to a sex-based scheduling system.
In determining whether adverse employment actions would no longer be limited to only ultimate employment decisions, the Fifth Circuit looked at the plain language of the federal civil rights statute. The statute clearly states employment discrimination also includes discrimination with respect to the terms, conditions, or privileges of employment.
The court concluded the days an employee works were terms or conditions of employment. It also found that the ability to pick work shifts based on seniority was an employment privilege. The court then had little trouble deciding the female officers had plausibly alleged Title VII discrimination based on Dallas County’s switch to a sex-based scheduling policy.
The court pointed to support for its position in U.S. Supreme Court decisions as well as decisions of other circuit courts. For example, in 2021, the Sixth Circuit dealt with a similar Title VII case alleging discriminatory changes in employee scheduling and concluded that scheduling was a term of employment and employment benefits based on seniority were privileges of employment.
One of Dallas County’s arguments was that if it had committed an adverse employment action, the harm was too minimal to warrant Title VII relief. The county requested the court establish a standard with regard to the level of harm necessary to successfully plead a Title VII claim.
While the Fifth Circuit acknowledged Title VII does not apply to de minimis workplace trifles, it declined to establish a standard for determining how significant the workplace harm must be in order to impose Title VII liability. It only concluded that since days off were important to both male and female officers, the female officers had alleged facts that, if proven, indicated they experienced more than de minimis harm.
What Texas Employers Can Do to Avoid Potential Title VII Discrimination Claims
Although there is no clear standard for determining when an adverse employment action is harmful enough to result in Title VII liability, Texas employers should be wary of implementing any policies that treat employees differently with respect to any terms or conditions of employment and should review existing policies and procedures in light of the Fifth Circuit’s decision.
A pending U.S. Supreme Court case, Muldrow vs. City of St. Louis, may give employers some help in determining when an adverse employment action will result in Title VII liability. SCOTUS is getting ready to hear arguments in a case from the Eighth Circuit involving the alleged discriminatory lateral transfer of a female police officer. The issue before the court is whether an adverse employment action must also result in a significant employment disadvantage to the employee to be actionable under Title VII. Contact us to see how our labor and employment attorneys can help employers with Title VII liability.