A victory for common sense: Appeals court reverses crazy Title VII ruling

When you think of prohibited sex discrimination under Title VII, what comes to mind?

How about a workplace policy that says male employees can get weekends off but females can’t do the same? Seems pretty clear that’s unlawful sex discrimination, right?

But guess what? Last August, a federal appeals court ruled that the policy was perfectly fine under Title VII.

Wait – What?

How could that possibly be so?

Under the court’s warped reasoning, the policy was OK because the females who were subject to it did not suffer an “adverse employment action.” You can’t have a Title VII violation without an adverse employment action, it said, and adverse employment actions are limited to “ultimate employment decisions” like those relating to hiring, discharge or promotion. Because a policy denying weekends off is not an adverse employment action, the female employees were out of luck, it ruled.

Of course, nothing in the text of Title VII suggests that the law be read so narrowly.

The three-judge panel that decided the case essentially said its hands were tied by previous circuit court precedent. The panel sat in the Fifth Circuit, which covers Louisiana, Mississippi and Texas. Seemingly aware of the absurdity of the result, it also said the case was an “ideal vehicle” for further review by the full Fifth Circuit Court of Appeals.

Full court reverses

Fortunately, that is exactly what happened. The full circuit reviewed the case, and in mid-August it reversed the panel’s ruling.

Kindly calling its past rule an “interpretive incongruity,” the full panel said it was time to recognize Title VII’s broad language and end the practice of limiting winnable Title VII cases to those involving “ultimate employment decisions.”

In so doing, it took the logical approach of looking at what Title VII actually says.

And what it says is that employers cannot discriminate against anyone based on sex (and other enumerated classes) with respect to “terms, conditions or privileges” of employment.

“[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,” the court said. “She need not also show an ‘ultimate employment decision,’ a phrase that appears nowhere in the statute and that thwarts legitimate claims of workplace bias.”

A claim based on a policy that gives only men full weekends off is plausible under Title VII, it ruled. Those alleged facts “paint a clear picture of disparate treatment” based on sex, it said, because denying females weekends off is an adverse employment action.

Broad, but not boundless

Title VII does not allow recovery “for de minimis workplace trifles,” the court said, but the policy at issue was more than that – and enough to support a claim of a Title VII violation.

With the decision, the full court reversed a decades-old Fifth Circuit rule and significantly broadened the scope of protection offered to applicants and employees within its jurisdiction.

Rulings from the Sixth Circuit and the District of Columbia Court of Appeals are consistent with this new ruling from the full Fifth Circuit Court of Appeals.

The case is a reminder of the breadth of the discrimination prohibition included within Title VII. As a general rule, courts are expected to interpret civil rights laws broadly to achieve their remedial purpose. The Fifth Circuit’s prior rule regarding the scope of Title VII’s ban on discrimination was entirely inconsistent with this principle, and the new ruling brings its interpretation of the law more in line with a broader view – and does what the statute says.

Hamilton v. Dallas County, No. 21-10133 (5th Cir. 8/8/23).