What’s an “adverse employment action”?

In a major ruling that HR directors need to study, the 5th Circuit has overturned its longstanding interpretation of what is an “adverse employment action.” The new interpretation is sure to lead to more claims of workplace discrimination. 

Title VII makes it unlawful for an employer to discriminate on the basis of “race, color, religion, sex, or national origin.”  We all know that. But it would probably come as a surprise to a lot of people to know that the 5th Circuit has routinely dismissed cases alleging discriminatory treatment unless the discrimination took the form of an “ultimate employment decision.”  If the plaintiff complained about working conditions, or scheduling, the court tossed it out. It had to be about “hiring, granting leave, discharging, promoting, or compensating.” 

Nine women who work for Dallas County sued over the County’s policy for scheduling on the weekends, which was blatantly based on sex.  The policy for scheduling who worked on the weekend allowed men to take the whole weekend off. Not women.  What were they thinking?  The court laid it out in a footnote:

The Officers’ supervisor explained that the rationale behind the policy is “that it would be unsafe for all the men to be off during the week and that it was safer for the men to be off on the weekends.”

So a man can get a nice weekend off. Not the women.  Not very subtle, Dallas!!  It doesn’t take a legal genius to recognize the sex discrimination in that.

The district court and the three-judge panel from the 5th Circuit agreed that this policy discriminated on the basis of sex.  However, they also held that it did not violate Title VII because it only involved scheduling—it did not involve an “ultimate employment decision.”  Thus the women did not suffer an “adverse employment action.”

The 5th Circuit took up the case en banc and reversed its longstanding precedent. The court emphasized the part of Title VII that bars discrimination with respect to “compensation, terms, conditions, or privileges of employment…”  (Emphasis added).  Just reading the text of the statute, the court concluded that they had been reading it wrong.  It clearly prohibits discrimination in a broad context.  Key Quote:

…we are mindful that the statutory phrase, “terms, conditions, or privileges of employment,” is broad.  As the Supreme Court has repeatedly stated, this language, while contractual in nature, “is not limited to ‘economic’ or ‘tangible’ discrimination,” and “it covers more than ‘terms’ and ‘conditions’ in the narrow contractual sense.”  Indeed, the Court has held that even a discriminatory and hostile work environment—when sufficiently severe or pervasive—can rise to the level of altering the terms, conditions, or privileges of employment for Title VII purposes.

The plaintiffs survived the County’s effort to toss the case out, but the County may make some other arguments as the case goes forward.  The court’s opinion notes that Title VII does not permit liability for “de minimis workplace trifles” and is not intended to “transform Title VII into a general civility code for the American workplace.”  But this case is not about a poorly timed joke in the cafeteria.  It’s about who has to work on the weekends.  Wouldn’t most of us want to have a full weekend off now and then?  

It's Hamilton v. Dallas County, decided by the 5th Circuit en banc on August 18, 2023.  It’s cited as 2023 WL 5316716 and will soon be published in the Federal Reporter.


Got a question or comment for the Dawg?  Let me hear from you at jwalsh@wabsa.com