In Hamilton v. Dallas County, the en banc Fifth Circuit discarded the long-standing principle that a plaintiff could only bring Title VII discrimination claims over “ultimate employment actions.” The Court held that allegations a sheriff’s gender-based scheduling policy disallowing female employees from scheduling both weekend days off while allowing males that privilege stated a plausible cause of action for a Title VII violation.  The reasoning was simple. Title VII prohibits discrimination in the “terms, conditions, and privileges of employment” and that language was incompatible with the view that only “ultimate employment actions” were prohibited. Scheduling is a “term, condition, or privilege” of employment, and so scheduling based on gender is prohibited. This was true even though there was no economic harm alleged because of the policy.

The decision is not surprising as other circuits have recently done away with various tests requiring some level of materiality as being required to state a Title VII violation. In fact, the Supreme Court has granted certiorari in the case of Muldrow v. City of St. Louis to review the Eighth Circuit’s conclusion that a police officer’s reassignment from the intelligence division to a regular district was not actionable under Title VII because it was a lateral transfer. The Eighth Circuit’s measure of harm to state a claim was a “material employment disadvantage.”

The Hamilton opinion held the only limit on actionable Title VII discrimination is for matters that are de minimis or “very small or trifling.” It provided no examples of actions that would be de minimis. Judge Jones concurred in the judgment only and decried the majority’s failing to offer guidance on what would meet this de minimis standard. But it seems apparent that many employment actions that previously would not support a claim such as performance evaluations, written warnings, lateral transfers, shift assignments, refusal to send to training classes, and brief disciplinary suspensions may now be sufficient to support a lawsuit.

The question then is what impact this decision will have on how businesses conduct themselves and employment discrimination litigation. My belief is not as much as it might appear.

In my experience, businesses do not base their employment practices on the assumption that some decisions are exempt from discrimination laws. To the contrary, most employers’ policies prohibit discrimination more broadly than the Fifth Circuit interpreted Title VII. Employers have never ignored internal complaints of discrimination because the complaint did not involve an ultimate employment decision. If an employee complained his evaluation was the product of discrimination, employers would investigate the allegation.

The main difference now is an issue of finality. Before Hamilton, if an employer refused to change a Needs Improvement evaluation into Acceptable, the matter was over. Now, a current employee could engage an attorney to write a letter to the employer demanding the evaluation be changed or bring an EEOC charge as a precursor to a lawsuit. But this will be dealt with when it occurs and should not result in a change to the processes businesses have put in place to prevent and respond to unlawful discrimination.

Nor should the decision have a significant impact on the number of internal discrimination complaints. This has little to do with the law and more to do with psychology. Employees who are inclined to complain already are complaining. Most employees do not want to complain to their employer whether from an aversion to conflict, a fear of retaliation, or a lack of interest. The Hamilton decision cannot change people’s personalities.

While the decision opens the door for a host of lawsuits over previously unactionable matters, whether the number of Title VII lawsuits will increase is also questionable. Will a lawsuit over an annual evaluation for an employee who remains employed be worth an attorney’s time? Title VII provides for emotional distress damages and an award of attorney’s fees, but most discrimination cases settle based on the value of the damages and attorneys obtain their fees on a contingency basis. Given the time investment necessary to prove discrimination, suing over a performance review may not make economic sense.

Hamilton also opens the door for additional independent discrimination claims inside a lawsuit over a discharge. For example, the poor performance review and performance improvement plan that came before the discharge could be independently actionable. But those events were likely to be part of discovery in a discharge lawsuit regardless of their independence, and in the face of the significant damages accompanying a discharge, are not likely to materially affect the case’s valuation. It is also likely that many prior events plaintiffs would like to litigate will be stale having occurred outside the applicable statute of limitations. Thus, Hamilton seems unlikely to have a significant impact on individual cases.

Ultimately then, I do not believe Hamilton will significantly affect how businesses comply with non-discrimination laws nor increase the number of employment discrimination lawsuits. 

About the Author...

Edward F. Harold
Fisher & Phillips, LLP
Labor & Employment Law Committee Chair

Written on behalf of the Labor & Employment Committee