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5th Cir. Peppers Counsel Over Extent of Sex Bias Protections (3)

Jan. 24, 2023, 6:13 PMUpdated: Jan. 25, 2023, 5:11 PM

The Fifth Circuit appeared wary of completely doing away with precedent that limits Title VII lawsuits to employer practices that qualify as “ultimate employment decisions” during an en banc hearing Tuesday morning.

The en banc court considered the scheduling policy of the Dallas County Sheriff’s Department that allows only male officers to take full weekends off. Female detention officers asked the court to reverse its precedent so that the scheduling policy would qualify as “terms, conditions or privileges of employment.”

The county argued that such a change would “open the floodgates” of litigation.

The officers’ counsel, Madeline Meth of the Georgetown University Law Center, countered this by noting federal pleading rules still require claims to be plausible, and that claimants would still have the difficulty of proving discriminatory intent as required under Title VII.

But when she conceded that Vice President Mike Pence’s alleged practice of not taking women to lunch could be actionable under Title VII, the court asked: “Then what isn’t a term and condition? Sounds like everything is.”

Proskauer Rose LLP attorney Steve Pearlman shared the court’s concern, saying “the absence of at least a de minimus standard creates uncertainty and invites lawsuits grounded in insignificant slights.” Plaintiffs’ indicated limits are arguably inadequate as well, he added. Without limits, courts could “become general HR departments.” Pearlman is a partner in the firm’s Labor & Employment Law group, but didn’t represent a party here.

The DOJ took a slightly different stance than plaintiffs. Anna Baldwin, arguing for the government, agreed with the plaintiffs that the statute doesn’t have a materiality or more-than-de minimis requirement, but said “Title VII isn’t meant to police all those sorts of ordinary interactions.”

If it was a training lunch, though, that would be considered a term, privilege, or condition of employment, she said. “The Supreme Court has said time and time again, in Title VII, context matters,” she added, “Will that be a line-drawing exercise? It will, but the problem right now is the line-drawing exercise has veered so far from the text of the statute.”

Dallas focused on its argument that Title VII litigation would greatly increase without the current ultimate employment decision rule.

“That gate-keeping function is essential,” Dallas County Assistant District Attorney Jason Schuette told the US Court of Appeals for the Fifth Circuit. Without it, the costs of dealing with Title VII lawsuits could become unmanageable.

The court seemed concerned about what employment actions would be deemed legal if the precedent remains, though. When 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, the court asked: “That’s not crazy? That’s not a crazy theory of Title VII?”

University of Texas at Austin School of Law professor B. Craig Deats said it “appears the en banc court wants to come up with a more relaxed standard,” but won’t go as far as plaintiffs suggest. “What occurs at oral argument often does not provide a good predictor of the court’s ultimate decision in the case,” though, he added.

Meth and representatives for Dallas County declined to comment on the hearing.

The case is Hamilton v. Dallas Cnty., 5th Cir., No. 21-10133, oral argument 1/24/23.

(Updates Jan. 24 story with additional comment in the 12th paragraph)

To contact the reporter on this story: Annelise Gilbert at

To contact the editors responsible for this story: Rob Tricchinelli at; Nicholas Datlowe at