In the case of Hamilton v. Dallas County, the Fifth Circuit Court of Appeals by a unanimous decision held that Title VII is to be read for its plain meaning, and that adverse employment actions don’t always have to involve monetary loss. That’s bad news, right? At least for employers it could be perceived as a bit of bad news. The current jurisprudence is that for a person to have been damaged by a violation of Title VII they must suffer an “adverse employment action” which previously has been limited to the universe of tangible (i.e., monetary losses, such as termination, or being passed over for promotion, raise, or bonus) employment actions.
In the Hamilton case, the “adverse employment action” analysis dug deeper. The facts of the case are quite simple:
The Dallas County Sheriff’s Department gives its detention service officers two days off each week. The department uses a sex-based policy to determine which two days an officer can pick. Only men can select full weekends off—women cannot. Instead, female officers can pick either two weekdays off or one weekend day plus one weekday. Bottom line: Female officers never get a full weekend off.
The Fifth Circuit started its adverse employment analysis with the plain language of Title VII which states, “[i]t shall be an unlawful employment practice for an employer. . .to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment.” The court relied on two recent United States Supreme Court decisions that held if it’s not in the plain language of the statute courts can’t just paper over that absence and “make it up.” In a mea culpa comment, the circuit chastised itself for its rulings in previous cases following this specious logic. The Fifth Circuit mentioned one particularly noteworthy case, a forty-year old piece of litigation in which the plaintiff alleged “that he and his black team members had to work outside without access to water, while his white team members worked inside with air conditioning.” In that case the Fifth Circuit found no adverse employment action had taken place because the players didn’t lose their jobs. In today’s world such a ruling sounds shocking, and the changes reached in Hamilton demonstrate the societal shifts that led to prior case precedent being undone.
The court held that the previously sanctioned ultimate-employment-decision test ignores the actual statutory language. And as both the Fifth Circuit and the United States Supreme Court has pointed out, Congress doesn’t use words if they don’t mean them to have some import. In other words, “Congress means what it says and says what it means.” And so, the Fifth Circuit went on to point out that discrimination in the context of terms, conditions, and or privileges of employment is extremely broad. In support of that proposition, the Fifth Circuit relied on reasoning that to the average working person:
The days and hours that one works are quintessential “terms or conditions” of one’s employment. Indeed, these details go to the very heart of the work-for-pay arrangement . . . and [a] benefit that is part and parcel of the employment relationship may not be doled out in a discriminatory fashion.
The circuit court did caution that because Title VII fails to delineate between petty trivialities and serious “terms, conditions, or privileges of employment,” a bright-line definition of these words and phrases cannot be had from the face of Title VII. The U.S. Supreme Court position is still valid that Title VII should not be used and transformed into “‘a general civility code for the American workplace.’ Title VII accordingly does not permit liability for de minimis workplace trifles.”
So where does that leave employers? It lets employers know that there will be less perfunctory lawsuit dismissals based on a lack of a traditional adverse employment action. How each employee perceives a violation is therefore going to carry more weight. Employers should take a look at any workplace policies which appear on their face or in practice to impact a particular class of people and see if changes can be made to reduce their disparate impact.
There is light at the end of the tunnel. The concurrence relates that the U.S. Supreme Court has accepted certiorari (review) on a case which may ultimately provide a bright-line definition- Muldrow v City of St. Louis. This case involves an alleged discriminatory failure to transfer. Will this be the vehicle that drives the definition home? Only time will tell. But as the concurrence reminds us:
Equality of opportunity is fundamental to who we are, and to who we aspire to be, as a nation.
Today’s decision will help bring us closer to achieving those aspirations.
If you have any questions concerning Title VII and adverse employment actions, please contact Madalene Witterholt or another member of the firm’s Labor & Employment Practice Group.