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Litigation News

Winter 2024 Vol. 49, No. 2

Court Expands Actionable Employment Discrimination Claims

Frances Codd Slusarz


  • A federal appellate court has expanded the scope of actionable claims under Title VII of the Civil Rights Act. 
  • The appeals court determined that disputes about work schedules are actionable under Title VII because they concern the terms, conditions, and privileges of employment.
Court Expands Actionable Employment Discrimination Claims
Vithun Khamsong via Getty

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Rejecting nearly 60 years of precedent, a federal appellate court has expanded the scope of actionable claims under Title VII of the Civil Rights Act. Calling its previous standard “atextual,” the appeals court determined that disputes about work schedules are actionable under Title VII because they concern the terms, conditions, and privileges of employment. In light of this and similar decisions, ABA Litigation Section leaders expect the U.S. Supreme Court to soon refine the scope of actionable employment claims under Title VII.

Employer Makes Work Scheduling Preferences Explicitly Based on Sex

To state a claim for employment discrimination, the plaintiff has to have suffered an “adverse employment action.” In Hamilton v. Dallas County, the U.S. Court of Appeals for the Fifth Circuit en banc reversed its decades-old rule that an employee did not state a claim for employment discrimination under Title VII unless the adverse employment action was an “ultimate employment decision.” More specifically, the adverse employment action had to involve things like “hiring, granting leave, discharging, promoting, [or] compensating.”

In Hamilton, the plaintiffs, a group of nine female correctional officers, sued the Dallas County Sheriff’s Department for equal access to weekends off as the department’s male officers enjoyed. All officers were entitled to two days off per week, and weekends off was a highly desirable schedule. Previously, the county had scheduled shifts according to seniority. This changed in 2019, when the county decided that only male officers could take full weekends off. Female officers could only take weekdays or partial weekends off.

The county claimed that “it would be unsafe for all the men to be off during the week and that it was safer for men to be off on the weekends.” The fact that male and female officers performed the same tasks, and the number of inmates was consistent throughout the week, refuted this rationale. Indeed, the county did not dispute its discriminatory intent.

As scheduling work shifts does not involve an “ultimate employment decision,” the U.S. District Court for the Northern District of Texas dismissed the case for failure to state a claim. A three-judge panel of the Fifth Circuit reluctantly affirmed the trial court’s decision but urged the full court to “reexamine [its] ultimate-employment-decision requirement” to address the circuit’s “deviation from Title VII’s plain text.” The Fifth Circuit granted the employees’ motion for rehearing en banc and reversed the trial court’s decision.

Title VII Broadly Protects Against Discrimination at Work

Title VII makes it unlawful 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 [or her] compensation, terms, conditions, or privileges of employment because of such individual’s race, color, sex, or national origin.” Focusing on the plain language of the statute, the appellate court explained that Title VII says nothing about “ultimate employment decisions.” Rather, it lists ultimate employment decisions as examples of discrimination and makes it unlawful to “otherwise discriminate against” an employee “with respect to [the] terms, conditions, or privileges of employment.” The court acknowledged that “[n]o other court of appeals applie[d] so narrow a concept of adverse employment action” as the “ultimate employment decision” rule.

Having rejected the “ultimate employment decision” standard, the court described work schedules as “quintessential” terms or conditions of employment. Accordingly, when the county switched from a seniority-based system of shift selection to one based on sex, the female officers plausibly alleged that the defendant denied the female officers a privilege of seniority because of their sex.

The county urged that an employee should be required to show a “materially adverse employment action,” a “tangible employment action,” or an “objective material harm,” because Title VII does not cover “de minimis” discrimination. The court rejected this argument, finding that the employees satisfied the minimum pleading standard for discrimination under Title VII. The employees alleged that full weekends off is a preferred shift and that female officers were required to work weekends, while male officers could take full weekends off. Moreover, male officers were allowed to exercise the privileges of seniority, while the female officers could not.

Section leaders surmise that the Fifth Circuit would not have overturned its “ultimate employment decision” standard if the facts underlying Hamilton had been less blatantly discriminatory. “Had it been one person who wanted weekends off, I think the Fifth Circuit would have stuck with their original standard and waited for another case,” believes Susan P. Norton, Coral Gables, FL, coeditor of the Section’s Model Jury Instructions: Employment Litigation. “But it was such an obvious, almost classic case of discrimination.”

Supreme Court Guidance Anticipated on Pleading Requirements

Critically, the Hamilton court did not define the minimum pleading requirements to state a claim for discrimination but instead deferred to the U.S. Supreme Court’s grant of certiorari in Muldrow v. City of St. Louis. Section leaders are not concerned about this exercise of judicial restraint. “It would have been difficult for the majority to define what term or condition of employment gives rise to a Title VII claim,” explains Cassandra B. Robertson, Cleveland, OH, cochair of the Appellate Subcommittee of the Section’s Civil Rights Litigation Committee. “To do so would require speculation. I think the court did the right thing to decide the case that was before it, and leave the difficult line-drawing to future cases.”

In Muldrow, a female police sergeant brought a Title VII claim against the city, alleging that her transfer from a Federal Bureau of Investigation (FBI) task force to a patrol division role constituted gender discrimination. The U.S. District Court for the Eastern District of Missouri granted summary judgment in favor of the employer, reasoning that a job transfer was not an adverse employment action. The U.S. Court of Appeals for the Eighth Circuit affirmed because the employee failed to allege a “tangible change in working conditions that produce[d] a material employment disadvantage.”

As a member of the FBI task force, the plaintiff worked Monday to Friday, had access to FBI resources including an unmarked FBI vehicle, had the opportunity to work in plain clothes and outside the city limits of St. Louis, and had the opportunity to earn up to $17,500 in annual overtime pay. As a patrol sergeant, the plaintiff was responsible for administrative matters such as reviewing and approving arrests and supervising officers on patrol. In addition, she worked a rotating schedule of weekends, wore a police uniform and drove a marked police car, and worked in a defined patrol area. Her salary remained the same. She was no longer eligible for the FBI’s $17,500 overtime pay, but she was eligible to work overtime for the city.

The employee argued that the patrol division role was an adverse employment action because it was more administrative than the task force role and far less prestigious. The Eighth Circuit was not persuaded because internal transfers are not adverse employment actions unless the employee demonstrates that a diminution to salary, title, or benefits was suffered.

“It seemed to me to be more than just a transfer,” asserts Norton. “You have a specific, sizeable amount of overtime that was no longer available to the plaintiff. The transfer seemed to have a lot more ramifications than inconvenience to the female officer or her personal preference,” reasons Norton.

Section leaders expect significant guidance from the Supreme Court as to what constitutes an adverse employment action. “They would not accept certiorari just to reverse Muldrow. They obviously want to make a statement,” Norton explains. “I think the Supreme Court will explain further what constitutes a materially adverse employment decision, and I believe it will take less to demonstrate a materially adverse employment decision than it does now,” she predicts.

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