On August 18, 2023, the U.S. Court of Appeals for the Fifth Circuit expanded the types of employment actions that may constitute “adverse employment action” under Title VII in Hamilton v. Dallas Cnty., 5th Cir. en banc. No. 21-10133, 8/18/23. Overruling its nearly 30-year precedent that actionable employment actions under Title VII must relate to “ultimate employment decisions,” the Fifth Circuit held that a plaintiff need only show that they were discriminated against with respect to hiring, firing, compensation, or the terms, conditions, or privileges of employment, even if such actions were not ultimate employment actions.

In Hamilton, nine female correctional officers sued the Dallas County Sheriff’s Department asserting that they were subjected to disparate treatment due to the County’s sex-based scheduling policy under which only male officers were given full weekends off. The County moved to dismiss, staking its argument on precedent from Dollis v. Rubin, in which the Fifth Circuit specified that an adverse employment action for Title VII discrimination must consist of “ultimate employment decisions,” such as hiring, granting leave, discharging, promoting, and compensating. The County argued that the Plaintiffs failed to show they suffered an adverse employment action because the County’s work scheduling policy did not affect the job duties, compensation, or benefits of the Plaintiffs. In granting the Court’s motion to dismiss, the U.S. District Court for the Northern District of Texas concluded that changes to an employee’s work schedule, such as the denial of weekends off, are not an ultimate employment decision. On initial appeal, a Fifth Circuit panel, relying on the Dollis precedent, affirmed; however, it urged the Fifth Circuit en banc to re-examine the “ultimate employment decision” requirement.

The Fifth Circuit en banc—reversing and remanding the district court’s decision in Hamilton and vacating its Dollis decision—held 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 without any need to also show an “ultimate employment decision.” The Court keyed in on the statutory language of Title VII, noting that “nowhere does [the statute] say, explicitly or implicitly, that employment discrimination is lawful if limited to non-ultimate employment decisions.” Rather, the Court elaborated, Title VII prohibits discrimination in certain specified ultimate employment decisions (e.g., hiring, discharging, compensation), but it also makes it unlawful for an employer to otherwise discriminate against an employee with respect to the “terms, conditions, or privileges of employment.” The Court found that their “ultimate-employment-decision test ignores this key language.”

Considering this premise, the Court determined that the Plaintiffs sufficiently pled discrimination because a policy requiring female officers but not male officers to work weekends could constitute sex discrimination in the terms, conditions, or privileges of employment. On this point, the Fifth Circuit here reached a decision similar to that of the D.C. Circuit in Chambers v. D.C. The opinion in that case, which concerned a discriminatory job transfer, did, however, acknowledge that while other circuits have addressed a similar question concerning the necessary showing a plaintiff must make to plausibly allege discrimination regarding a job transfer, “those circuits…speak with discordant voices when it comes to the sort of harm that can support a claim…”

Ultimately, in coming to its conclusion, the Fifth Circuit left “for another day” the question of what “precise level of minimum workplace harm a plaintiff must allege” to constitute actionable discrimination. The Court’s open-ended decision thus produces one obvious implication: the Fifth Circuit can likely expect to see more cases involving debate over whether the kinds of actions that do not rise to the level of an “ultimate employment action” are nonetheless sufficient to trigger Title VII liability. The absence of a solid limiting principle invites plaintiffs to test the boundaries of the law in determinations over what workplace effects could be considered terms and conditions of employment. The Court, for its part, acknowledged that Title VII is not meant to be a general civility code used to police ordinary workplace interactions; however, it is yet to be determined exactly what guardrails the Fifth Circuit will ultimately set for the types of workplace conduct actionable under Title VII.

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Photo of Steven J. Pearlman Steven J. Pearlman

Steven J. Pearlman is a partner in the Labor & Employment Law Department and Co-Head of the Whistleblowing & Retaliation Group and the Restrictive Covenants, Trade Secrets & Unfair Competition Group.

Steven’s practice covers the full spectrum of employment law, with a particular…

Steven J. Pearlman is a partner in the Labor & Employment Law Department and Co-Head of the Whistleblowing & Retaliation Group and the Restrictive Covenants, Trade Secrets & Unfair Competition Group.

Steven’s practice covers the full spectrum of employment law, with a particular focus on defending companies against claims of employment discrimination, retaliation and harassment; whistleblower retaliation; restrictive covenant violations; theft of trade secrets; and wage-and-hour violations. He has successfully tried cases in multiple jurisdictions, and defended one of the largest Illinois-only class actions in the history of the U.S. District Court for the Northern District of Illinois. He also secured one of only a few ex parte seizures orders that have been issued under the Defend Trade Secrets Act, and obtained a world-wide injunction in federal litigation against a high-level executive who jumped ship to a competitor.

Reporting to boards of directors, their audit committees, CEOs and in-house counsel, Steven conducts sensitive investigations and has testified in federal court. His investigations have involved complaints of sexual harassment involving C-suite officers; systemic violations of employment laws and company policies; and fraud, compliance failures and unethical conduct.

Steven was recognized as Lawyer of the Year for Chicago Labor & Employment Litigation in the 2023 edition of The Best Lawyers in America. He is a Fellow of the College of Labor and Employment Lawyers.  Chambers describes Steven as an “outstanding lawyer” who is “very sharp and very responsive,” a “strong advocate,” and an “expert in his field.” Steven was 1 of 12 individuals selected by Compliance Week as a “Top Mind.” Earlier in his career, he was 1 of 5 U.S. lawyers selected by Law360 as a “Rising Star Under 40” in the area of employment law and 1 of “40 Illinois Attorneys Under Forty to Watch” selected by Law Bulletin Publishing Company. Steven is a Burton Award Winner (U.S. Library of Congress) for “Distinguished Legal Writing.”

Steven has served on Law360’s Employment Editorial Advisory Board and is a Contributor to Forbes.com. He has appeared on Bloomberg News (television and radio) and Yahoo! Finance, and is regularly quoted in leading publications such as The Wall Street Journal.

The U.S. Chamber of Commerce has engaged Steven to serve as lead counsel on amicus briefs to the U.S. Supreme Court and federal circuit courts of appeal. He was appointed to serve as a Special Assistant Attorney General for the State of Illinois in employment litigation matters. He has presented with the Solicitor of the DOL, the Acting Chair of the EEOC, an EEOC Commissioner, Legal Counsel to the EEOC and heads of the SEC, CFTC and OSHA whistleblower programs. He is also a member of the Sedona Conference, focusing on trade secret matters.

Photo of Atoyia Harris Atoyia Harris

Atoyia Harris is a special employment law counsel in the Labor and Employment Department and a member of the Employment Litigation & Counseling Group. With bench trial, jury trial, and administrative hearing experience, Atoyia approaches each matter strategically to provide the best result…

Atoyia Harris is a special employment law counsel in the Labor and Employment Department and a member of the Employment Litigation & Counseling Group. With bench trial, jury trial, and administrative hearing experience, Atoyia approaches each matter strategically to provide the best result for her clients. She has successfully defended matters on a wide variety of issues.

Atoyia advises clients and conducts investigations and trainings on issues related to discrimination, harassment, and retaliation. Her practice also includes counseling clients on reductions-in-force, Covid-19 related matters, issues arising out of social movements including Black Lives Matter and #MeToo, and other sensitive employment issues.

Atoyia is co-chair of the Firm’s Black Lawyers Affinity Group, serves as a member of the Firm’s Associate Council, and is on the Proskauer Women’s Alliance Steering Committee.

Active in the New Orleans legal community, Atoyia is a member of the Young Lawyers Board for the Federal Bar Association’s New Orleans Chapter and other organizations. She is also a member of the national Defense Research Institute’s Membership Committee and Diversity and Inclusion Planning Committee.

Atoyia received her J.D. with an International Law Certification from Loyola University New Orleans College of Law. Atoyia served as the Moot Court Selection Chair and staff member of the Loyola Law and Technology Journal. While in law school, Atoyia interned as a law clerk for the Honorable Jay C. Zainey at the United States District Court for the Eastern District of Louisiana and the Honorable Robin Giarrusso at the Orleans Parish Civil District Court. Atoyia was also a member of the award-wining Robert F. Wagner Labor and Employment Moot Court Team.

Prior to law school, Atoyia received her Bachelor of Music in Industry Studies with emphasis in classical piano from Loyola University New Orleans and was member of the Loyola University women’s basketball team.

Photo of Alexander J. Blutman Alexander J. Blutman

Alexander J. Blutman is an associate in the Labor Department and a member of the Employment Litigation & Counseling Group.

Alex earned his J.D. cum laude from Harvard Law School, where he was Co-Managing Editor of the Harvard Journal of Sports & Entertainment

Alexander J. Blutman is an associate in the Labor Department and a member of the Employment Litigation & Counseling Group.

Alex earned his J.D. cum laude from Harvard Law School, where he was Co-Managing Editor of the Harvard Journal of Sports & Entertainment Law and Co-Producer of the Harvard Law School Parody. While at Harvard, Alex spent time as a legal intern with the UNLV Athletics Department, Special Olympics International, and the National Football League.

Prior to law school, Alex worked as a paralegal at an Am Law 100 law firm. He graduated from Duke University, where he served as a student-manager for the men’s basketball team.