Pro-Worker Title VII Test to Shake Up Fifth Circuit Bias Cases

Workers will have an easier path to pursue bias allegations following a federal appeals court’s recent expansion of employment actions that can form the basis for a lawsuit.

The full US Court of Appeals for the Fifth Circuit last week wiped out a 27-year-old precedent blocking litigants from moving forward with employment discrimination suits unless they’ve faced a specific type of “ultimate employment decision” related to hiring, firing, leave, promotions, or compensation.

This decision from an appeals court that has long had the most restrictive view of an adverse employment action under Title VII of the 1964 Civil Rights Act will reshape the legal landscape and prompt workers to test the reach of the ruling, legal scholars told Bloomberg Law. The Fifth Circuit covers Louisiana, Mississippi, and Texas.

“Anytime Title VII is analyzed in an expansive way, it is a good thing for employees,” said Marjorie Mesidor, a partner at Wigdor LLP. Every work environment is different and workers are discriminated against in ways that don’t always qualify as adverse employment actions in some courts, she said.

The Fifth Circuit’s “ultimate employment decision” standard created a “safe-space for employers for a very long time. We’re talking about decades of precedent,” Mesidor said. “The fact they said it was ‘fatally flawed’ in its foundation, there’s really not a better reasoning than that.”

But the decision left open lingering questions over what does count as an actionable employment decision under Title VII, which attorneys say will result in more lawsuits as workers challenge the scope of the new standard.

“We are going to see a lot more litigation over” this issue until the US Supreme Court weighs in, said Keith Markel, a partner and co-chair of Morrison Cohen LLP’s labor and employment department.

“Add this to the list of post-pandemic complaints employees will file to stave off termination or claim retaliation,” he said in an email. “It’s becoming harder and harder for employers to manage their workforce because almost any business decision can be construed as adverse if an employee doesn’t agree with it.”

Time Off Issue

The Fifth Circuit vacated its prior standard in a lawsuit challenging a Texas county’s policy that allows only male detention center officers to have full weekends off.

“This ruling follows common sense in terms of discrimination in employment conditions,” said Clifton W. Albright, a founding partner and president of Albright, Yee & Schmit APC.

It’s also in line with Supreme Court precedent holding that Title VII goes beyond economic or tangible discrimination, he said.

“To say these women can’t have the same time off as men is clear discrimination based on gender,” Albright said.

The Fifth Circuit’s decision joins a growing body of recent federal appellate courts that have widened the field of workplace actions that can serve as the basis for a Title VII claim.

The court now falls in line with the Sixth and District of Columbia circuits, which overturned similar ultimate-employment-decision requirements and expanded the scope of federal antidiscrimination law.

The Sixth Circuit’s July 2021 Threat v. City of Cleveland decision said that shift changes can rise to a Title VII claim in a case involving Black emergency medical service captains who accused the city of assigning night and day shifts based on race.

Almost a year later, the full D.C. Circuit concluded in Chambers v. D.C. that employers can’t legally transfer workers or deny their request to move based on their race, sex, or other protected categories.

The Fifth Circuit’s ruling also comes as the Supreme Court is set to determine whether job transfers and denials of requests to change positions can form the basis of a Title VII claim when they don’t impose “materially significant disadvantages” on employees.

Title VII plaintiffs already can avoid showing an adverse employment action to prevail under a hostile work environment theory, Mesidor said. The work environment they’re challenging is itself the discriminatory action, she said.

But to prevail, the plaintiff must show that their work environment was so hostile and abusive that it altered the conditions of their employment. That’s a “high bar” for workers to overcome, she said.

‘Real Work-Life Theories’

The Fifth Circuit’s en banc ruling had no dissents, but nonetheless prompted a concurring opinion by Judges Edith Jones, Jerry Smith, and Andrew Oldham, who accused their colleagues of overturning precedent without providing sufficient guidance going forward.

“The question left hanging by the majority is what kind of ‘term or condition’ of employment creates an actionable Title VII discrimination claim,” their concurrence said. “The majority refuses to say, leaving ‘for another day the question whether Title VII includes a minimum-harm threshold on top of a showing of discrimination in one’s ‘terms, conditions, or privileges of employment.’”

But it was important for the court to leave this question open so “people can start testing” the scope of the adverse employment action doctrine with “real work-life theories,” Mesidor said.

Albright added that, although workers will have a clearer path to bring bias cases, it doesn’t mean they will ultimately prevail. They still must provide ample evidence to prove their claims, he said.

“It may cause more lawsuits, but it’s not going to create more wins,” Albright said.