Bloomberg Law
Jan. 23, 2023, 10:00 AM

Sex-Based Scheduling Suit Sparks Review of Title VII Limitation

Annelise Gilbert
Annelise Gilbert

Female officers will ask the full Fifth Circuit Tuesday to reinstate a lawsuit accusing the Dallas County Sheriff’s Department of using an illegal gender-based scheduling policy that allows only their male colleagues to take full weekends off.

Their case presses the court to consider reversing precedent that limits Title VII actions to employer practices that qualify as “ultimate employment decisions” such as hiring, granting leave, discharging, promoting, or compensating. That precedent wrongly narrows Title VII’s broad protections, the women say, citing recent rulings in the Sixth Circuit and D.C. Circuit overturning similar ultimate-employment-decision requirements.

Attorneys for the county counter 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.”

Detention officers’ schedules were based on seniority until April 2019 when the county required women, but not men, to work at least one day each weekend. A sergeant allegedly admitted the new rule was based on gender, but a three-judge panel of the US Court of Appeals for the Fifth Circuit in 2022 affirmed the district court’s dismissal of the gender discrimination suit, saying its precedent held that scheduling didn’t qualify as an ultimate employment decision.

The New Orleans-based appeals court vacated that ruling in October, granting the women’s petition for en banc review. Its judges will hear argument on Tuesday.

Textual Reading Urged

The Fifth Circuit’s precedent is atextual and misguided, the officers said in their pre-argument brief. Title VII makes it unlawful to discriminate against any individual with respect to his “compensation, terms, conditions, or privileges of employment” because of a protected characteristic, and “any suggestion that this Court should reach outside” the text contradicts not only the text, but Congress’s intent as well, they said.

The scheduling policy is “within the heartland, it is not at the margins, of what Title VII was designed to protect against,” plaintiffs’ counsel Madeline Meth told Bloomberg Law.

The Georgetown University law instructor noted the Sixth Circuit’s ruling in Threat v. City of Cleveland, which held that officers’ shifts count as a “term” of employment. “How could the when of employment not be a term of employment?,” that Cincinnati-based panel asked.

Lawyers for Dallas County disagreed in their pre-argument brief, calling the officers’ interpretation of Title VII “erroneous” and “incompatible” with longstanding principles of statutory interpretation. Such a broad reading ignores “any form of de minimis harm guardrail” and creates a subjective standard that isn’t judicially administrable.

The limitation of “terms, conditions, or privileges of employment” would become a “mere phantom” and “virtually any conceivable facet of the employer-employee relationship” could fall into one of the three categories, opening the floodgates of Title VII litigation, Dallas 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, disagreed with the county’s floodgates argument.

One would still have to prove an adverse action is because of a protected characteristic, “and that’s a natural limit on what kinds of things you’d be able to challenge” because of how difficult it is, she said. When the US Supreme Court did away with the ultimate employment decision requirement for retaliation claims in Burlington N. & Santa Fe Ry. v. White, Wheeler said, lawyers raised similar concerns that didn’t materialize.

Seyfarth Shaw LLP partner Linda C. Schoonmaker, an employer-side lawyer, echoed Wheeler, saying she doesn’t think the plaintiff-side attorneys would “aggressively pursue this new opportunity” because the damages would be very low. Still, employers will need to be advised if there is a change in the law and “potentially change the language of their policies and their training programs in terms of what is the consequence of discrimination.”

But ReedSmith LLP partner Amanda Brown disagreed. “I think retaliation claims have been much more popular,” she said, adding “there’s always a retaliation claim now in every single Title VII case.”

University of Texas at Austin School of Law professor B. Craig Deats said Dallas’s concerns could be addressed with some sort of de minimis rule. “You can move away from the ultimate employer decision rule and still have situations where a slight is so petty, that it would come under some sort of de minimis rule,” he said.

Dallas County declined to discuss the suit.

Discrimination with Impunity

If the precedent stands, it would “continue to have the implications that the ultimate employment decision rule has had now for decades, which is to allow employers to discriminate on the basis of race, sex, or any of the other protected characteristics under Title VII with impunity,” Meth said.

Such harm is evident in cases like Peterson v. Linear Controls, Inc., where the court “effectively authorized employers to relegate their Black employees to the hot Louisiana sun while their White employees enjoy water in the air-conditioned indoors,” according to the officers’ pre-argument brief.

Michael Maslanka, a University of North Texas Dallas law professor who previously served as a trial attorney for the National Labor Relations Board, echoed the officers, saying the present case law “allows sanctioned discrimination against a protected classification.”

In addition to the Sixth Circuit’s ruling in Threat, the en banc D.C. Circuit recently overruled its previous rule. It held that an employer that transfers an employee or denies an employee’s transfer request because of a protected characteristic falls under Title VII’s terms, conditions, or privileges of employment in Chambers v. DC.

DOJ Weighs In

The other circuits’ rulings are “tremendously helpful” to the officers’ arguments, Maslanka said. The Fifth Circuit similarly has “sought to ameliorate the harshness” of its rule, he said, so there has been “this force, this wellspring that it’s time for this to end.”

He pointed to Thompson v. City of Waco, where the circuit held certain restrictions constituted a demotion and thus were actionable under Title VII.

The Department of Justice supported the officers, urging reversal. Also, the Supreme Court recently asked the Solicitor General to weigh in on a petition from the Eighth Circuit seeking review of precedent that holds discriminatory job transfers and denials of requested transfers are lawful under Title VII when they don’t impose “materially significant disadvantages” on employees.

Wheeler, who previously served as an appellate lawyer for the Equal Employment Opportunity Commission, said the government will support doing away with the Eighth Circuit’s rule, as it has been trying to get the issue before the Supreme Court for years.

“The court has taken a fairly conservative bent with the appointment of some of the new judges, but the Fifth Circuit is becoming a little bit more of an outlier in requiring so called ultimate employment decisions,” U.T.'s Deats said.

Ellwanger Law LLLP and Georgetown Law Appellate Courts Immersion Clinic represent the plaintiffs. The Dallas County District Attorney’s Office represents the county.

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

To contact the reporter on this story: Annelise Gilbert at

To contact the editors responsible for this story: Rob Tricchinelli at; Andrew Harris at; Carmen Castro-Pagán at

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