On August 18, 2023, the Fifth Circuit set a new legal precedent for employment discrimination by holding that workers who have been victims of discrimination at work can file a federal civil rights lawsuit, even if the employer’s action did not affect hiring, firing, pay or leave. The decision in Hamilton v. Dallas County vacates the same Circuit’s employer-friendly rule that had barred many employment discrimination lawsuits and expands employment rights in Texas. Now, many more employees who are victims of discrimination at work may be able to file employment discrimination lawsuits.

The bottom line for Texas employees is that they may now be able to succeed with a wider variety of gender bias in workplace lawsuits under Title VII of the Civil Rights Act of 1964 (Title VII). It is not yet clear whether the new standard also applies to the Texas Commission on Human Rights Act (TCHRA). Interestingly, the U.S. Supreme Court is expected to weigh in on a similar Title VII question in its next term. But that decision may not land until June 2024.

Discriminatory Scheduling Policies Based on Sex

In April 2019, the Dallas County Sheriff’s Department moved from a seniority-based scheduling policy to a gender-based policy. Under the revised rules, only male detention officers were given the option to take full weekends off from work. Female detention officers were limited to either two weekdays or one weekday and one weekend day off. The new policy meant that the women never got a full weekend off. The Sheriff’s Department acknowledged that the new scheduling policy was based on gender, but it argued that it would be unsafe for all the men to be off during the week. Tellingly however, neither the inmate population nor other jail conditions were substantially different on weekends than they were during the week. In February 2020, nine female officers filed a gender bias in the workplace lawsuit against Dallas County for violations of Title VII and TCHRA. They claimed that the county “engaged in the practice of discrimination with respect to the terms and conditions of Plaintiffs’ employment.”

A Brief Review of Title VII and the Texas Commission on Human Rights Act

Title VII provides that “it shall be an unlawful employment practice for an employer ‘to limit, segregate, or classify his [or her] employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his [or her] status as an employee, because of such individual’s race, color, religion, sex, or national origin.’”

TCHRA provides for the execution of “the policies of Title VII of the Civil Rights Act of 1964 and its subsequent amendments.” It further specifies that:

“An employer commits an unlawful employment practice if because of race, color, disability, religion, sex, national origin, or age the employer:

• fails or refuses to hire an individual, discharges an individual, or discriminates in any other manner against an individual in connection with compensation or the terms, conditions, or privileges of employment; or
• limits, segregates, or classifies an employee or applicant for employment in a manner that would deprive or tend to deprive an individual of any employment opportunity or adversely affect in any other manner the status of an employee.

At least on its face, TCHRA seems to be designed to follow federal law with respect to Texas employers.

The Fifth Circuit Changes Its Mind on Title VII Discrimination

At trial, a lower district court dismissed the complaint of the female officers under Fifth Circuit precedent in a case from 1995 known as Dollis v. Rubin. In that matter, the Fifth Circuit had interpreted Title VII to require an “ultimate employment decision” such as hiring, firing, granting leave, or a compensation determination. Although the weekend scheduling policy at issue in Hamilton v. Dallas County clearly discriminated based on sex, it did not appear to involve an “ultimate employment decision” under the Dollis standard. The female officers appealed to the Fifth Circuit.

In Hamilton, the Fifth Circuit vacated its previous Dollis decision, finding that the “ultimate employment decision” limitation was simply not in the language of Title VII. Hamilton brings the Fifth Circuit into line with the Sixth and D.C. Circuits. Other circuits, including the Eighth Circuit, continue to restrict Title VII claims in ways like the “ultimate employment decision” limit in Dollis.

In Hamilton, the Fifth Circuit did not address the counter argument that, with respect to the terms, conditions, or privileges of employment, Title VII requires a materiality or objective harm component. Otherwise, as the counter argument goes, employers might become legally liable for “de minimis [or] trivial workplace trifles.” The Latin maxim de minimis non curat lex means that “the law does not concern itself with trifles.” This maxim suggests that technicalities must yield to practical common sense and justice to avoid expensive litigation. The Fifth Circuit’s failure to address the materiality argument may turn out to be Hamilton’s proverbial Achilles heel.

Gender Bias in the Workplace

For workers, weekends off hardly seem like a mere trifle. Practical common sense and justice suggest that this is not about sleeping late or time to watch the game. The Dallas County Sheriff’s Department policy disadvantages only female officers. For women who still carry the greater share of family responsibilities, weekends may be what makes a family work. Scheduling policies can make or break childcare arrangements, not to mention an employee’s ability to do a job that both family and the community see as essential. Simply put, this is gender bias in the workplace.

Objective Harm in the Workplace

The Fifth Circuit is not the only jurisdiction to re-examine Title VII. In June 2023, the Supreme Court agreed to hear Muldrow v. City of St. Louis during its next term. In that lawsuit, Jatonya Clayborn Muldrow, a police sergeant, was involuntarily transferred out of the St. Louis police force’s intelligence unit where she worked closely with the FBI. Her new assignment was an administrative desk job. Her rank and pay remained the same, however. She brought a lawsuit under Title VII, claiming that that her transfer and subsequent request for re-assignment violated the law’s prohibition of workplace gender bias. At trial, her claims were dismissed. On appeal, the Eighth Circuit upheld the dismissal, opining that the transfer was a minor change in working conditions that did not meet the materiality in discrimination cases requirement by stating that it did not cause a “materially significant disadvantage” and did not violate Title VII. The U.S. Supreme Court has granted review.

Court watchers will have to wait until the end of the Supreme Court’s 2023-2024 term for a decision. But some fear that the requirement of “materiality” or “objective harm” may come back to haunt Title VII plaintiffs.

Kilgore & Kilgore Employment Lawyers Understand Title VII and the Texas Commission on Human Rights Act (TCHRA)

Experience counts as laws evolve. Our Texas employment law lawyers have experience with workplace gender bias claims under a variety of state and federal laws. Contact us if you believe that you have been the victim of discrimination, harassment, retaliation, wrongful termination, or other workplace equality issues. Reach out to us. Click here to get the conversation started contact Kilgore & Kilgore. Fill out and submit the form on our website. We will contact you to see if we can help.