Bloomberg Law
Aug. 18, 2023, 7:08 PMUpdated: Aug. 18, 2023, 10:19 PM

Full 5th Cir. Expands Anti-Bias Rights in Weekend Work Case (1)

Annelise Gilbert
Annelise Gilbert
Khorri Atkinson
Khorri Atkinson
Senior Labor & Employment Reporter

A full federal appeals court in New Orleans broadened the scope of negative employer actions that can trigger workplace discrimination lawsuits, reversing a nearly three-decade precedent that limited the requirement to only “ultimate employment decisions.”

The US Court of Appeals for the Fifth Circuit in an en banc opinion Friday vacated its 1995 ruling in Dollis v. Rubin, which blocks litigants from moving ahead with discrimination cases filed under Title VII of the Civil Rights Act of 1964 unless they’ve experienced an “ultimate employment decision” related to hiring, granting leave, terminations, promotions, or pay.

In a lawsuit challenging a Texas county’s policy that allows only male detention center officers to have full weekends off, the Fifth Circuit concluded that Dollis erroneously restricts Title VII’s “broad” prohibitions against employment discrimination.

This decision falls in line with rulings from the Sixth and D.C. circuits, which have recently overturned similar ultimate-employment-decision requirements and expanded the scope of federal antidiscrimination law.

It also comes as the US Supreme Court is set to examine next term whether job transfers and denials of requests to move can form the basis of a Title VII claim when they don’t impose “materially significant disadvantages” on employees.

The Fifth Circuit said a plaintiff doesn’t need to “show an ‘ultimate employment decision,’ a phrase that appears nowhere in the statute and that thwarts legitimate claims of workplace bias,” to bring a plausible claim of discrimination under Title VII.

“Satisfied that our ‘ultimate employment decision’ standard lies on fatally flawed foundations, we flatten it today,” the opinion by Judge Don R. Willett said.

Carolyn Wheeler, who authored an amicus brief in support of the officers on behalf of the American Civil Liberties Union, the National Women’s Law Center, and others, lauded the court’s decision.

“The reasoning of the decision is exactly what we hoped for,” said Wheeler, a former US Equal Employment Opportunity Commission attorney.

“I am not surprised by the outcome” because the court “would not likely have gone en banc just to reaffirm prior precedent,” she said. “The court properly focuses on the text of the statute and holds that the shift assignment in this case is actionable.”

Gender-Based Schedules

Female officers had asked the full court to reinstate their lawsuit accusing the Dallas County Sheriff’s Department of using an illegal gender-based scheduling policy. A three-judge panel previously upheld the dismissal of the suit because scheduling didn’t constitute an adverse ultimate employment action, as required by Dollis.

The officers argued that the precedent wrongly narrows Title VII’s broad protections. Dallas countered that removing the court’s limit on what qualifies as “terms, conditions or privileges of employment” under Title VII would “open the floodgates” of litigation stemming from “trivial harms.”

The en banc court’s Friday opinion reversed dismissal of the lawsuit.

“We’re thrilled that the court recognized Title VII prohibits all workplace discrimination, not just discrimination that takes the form of a so-called ‘ultimate employment decision,’” said Madeline Meth, a professor at Boston University School of Law who represents the officers.

“The opinion paves the way for our clients to continue their fight against the County’s sexist policy of prohibiting female officers from taking weekends off and ensures that the County cannot reinstate a similar discriminatory policy in the future,” she added.

Counsel for the county didn’t immediately reply to a request for comment.

At the en banc hearing on Jan. 24, the court seemed skeptical of completely doing away with the precedent. The court asked Meth, “Then what isn’t a term and condition? Sounds like everything is.”

The DOJ mostly agreed with the plaintiffs at the hearing, saying that Title VII doesn’t have a materiality or more-than-de minimis requirement, but that it “isn’t meant to police all those sorts of ordinary interactions.”

While Dallas focused on the potential increase of Title VII litigation if the precedent were to be reversed, the court seemed concerned about what employment actions would be deemed legal if the precedent remains.

When Dallas County Assistant District Attorney Jason Schuette conceded there wouldn’t be a Title VII cause of action where an employer assigns undesirable shifts to employees in protected classes due to animus, Judge James C. Ho asked: “That’s not crazy? That’s not a crazy theory of Title VII?”

The case is Hamilton v. Dallas Cnty., 5th Cir. en banc, No. 21-10133, 8/18/23.

(Updated with additional reporting throughout.)

To contact the reporters on this story: Annelise Gilbert at; Khorri Atkinson in Washington at

To contact the editors responsible for this story: Rob Tricchinelli at; Andrew Harris at; Jay-Anne B. Casuga at

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