The United States Court of Appeals for the Fifth Circuit, whose jurisdiction includes all of Texas, recently broadened the types of employment discrimination claims that may be brought under Title VII of the 1964 Civil Rights Act.  In so doing, it overturned nearly 50 years of precedent.

In Hamilton v Dallas County, nine female detention officers filed suit against Dallas County Sherriff’s Office for violations of Title VII and the Texas Commission on Human Rights Act (TCHRA). Relying on Title VII’s anti-discrimination provision, the female officers claimed that the county had “engaged in the practice of discrimination with respect to the terms and conditions of Plaintiffs’ employment.” These allegations were based on a change in scheduling policy that Dallas County Sherriff’s Department had in April 2019.  The Department transitioned from a seniority-based scheduling policy to a gender-based scheduling policy pursuant to which only male detention offers were given full weekends off from work. In contrast, the female detention officers were limited to either two weekdays off or one weekday and one weekend day off. A sergeant with the sheriff’s department admitted that the new scheduling policy was based on gender and explained 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.

Dallas County moved to dismiss the complaint based on the previously followed precedent that the discrimination had to involve an “ultimate employment decision”. While recognizing the County’s scheduling policy to be “facially discriminatory,” the district court dismissed the officers’ complaint pursuant to near 30 year old Fifth Circuit precedent limiting adverse employment actions to “ultimate employment decisions,” such as hiring, granting leave, discharging, promoting, or compensating.

Initially, the Fifth Circuit followed its own precedent and affirmed the trial court’s ruling. However, that panel of judges also noted that the “strength of the allegations” in the case presented an “ideal vehicle” for the en bancFifth Circuit (i.e., all the judges sitting on the Fifth Circuit) to evaluate the “ultimate employment decision” requirement and align it with the text of Title VII.

The en banc Fifth Circuit reversed precedent and held that the nine detention officers had a plausible allegation of disparate treatment under Title VII.  The Court’s decision was premised on the phrase “ultimate employment decision” not appearing in the language Title VII and the officers’ allegations of discrimination in the “terms, conditions or privileges” of their employment and disparate treatment based on a protected characteristic – gender.

Since the Court has expanded discriminatory behavior to include the “terms, condition or privileges” of an individual’s employment, it is important for employers to document their policies well in the employee handbook and/or policy/procedure book. This helps ensure expectations of employees are clear but also makes them transparent and fair to all employees. This further helps to prevent disparate treatment on a protected characteristic.  Employers should encourage annual training and reviews of their employment policies/employee handbook to continually remind and encourage a work environment free of discrimination.

In addition, documentation as to an employee’s pay, performance, incidents and/or time at a company should be documented from the start of their employment through the end of their employment.

The attorneys in our Austin and Dallas offices are available to answer any questions you may have about this opinion or employment related issues.  Please contact us at info@gstexlaw.com.

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