In Hamilton v. Dallas County, (5th Cir., Aug. 18, 2023), the U.S. 5th Circuit Court of appeals in an en banc decision overturned the Circuit's previous precedent that held employment discrimination violates Title VII only if the discrimination involved an ultimate employment decision such as hiring, granting leave, discharging, promoting or compensating. In this case, the Dallas County Sheriff's Department gave its detention service officers two days off each week. However, only men could choose to take two weekend days; women officers could only have one weekend day and one weekday, or two weekdays. The majority said in part:
Nowhere does Title VII say, explicitly or implicitly, that employment discrimination is lawful if limited to non-ultimate employment decisions. To be sure, the statute prohibits discrimination in ultimate employment decisions—“hir[ing],” “refus[ing] to hire,” “discharg[ing],” and “compensation”—but it also makes it unlawful for an employer “otherwise to discriminate against” an employee “with respect to [her] terms, conditions, or privileges of employment.”
Our ultimate-employment-decision test ignores this key language.
While the decision relates to a sex discrimination claim, the holding applies equally to religious discrimination.
Judge Ho filed a concurring opinion.
Judge Jones, joined by Judges Smith and Oldham concurred only in the judgment, saying in part:
The majority's incomplete ruling ... leaves the bench, bar, and employers and employees with no clue as to what this court will finally declare to be the minimum standard for Title VII liability....
... [A]s the majority recognizes, the Supreme Court emphasizes that Title VII does not effectuate a workplace “general civility code.”...Yet as written, the majority opinion has no baseline for “discrimination” based on terms or conditions of employment.
