Under general EEO law, federal anti-discrimination law liability arises depending on the federal circuit court of appeals in three situations: the Sixth Circuit prohibits any “materially adverse change in the terms of employment;” the Ninth Circuit prohibits any adverse treatment “reasonably likely to deter” the plaintiff from engaging in protected activity; and finally, the Fifth and Eighth Circuits prohibit an “ultimate employment decision.” The Fifth Circuit in a recent case decided to rethink their precedent.
Under the Sixth Circuit interpretation, “a mere inconvenience, an alteration of job responsibilities, or a ‘bruised ego’ is not enough to constitute an adverse employment action.” It is the middle ground between the Fifth Circuit which is most restrictive and employer friendly and the Ninth Circuit which is the least restrictive and employee friendly.
The Fifth Circuit en banc has rethought their approach for liability in a recent case. In Hamilton v. Dallas County, No 21-10133 (Fifth Circuit Court of Appeals, 8/18/23), Dallas County set a policy that clearly favored men over women. A sex-based scheduling system for jail guards in the Dallas County Sheriff’s Department was established that allowed female officers equal time off, but only during weekdays or by a combination of one weekday and one weekend day. Men could have the full weekend off. Female detention officers sued the county alleging that changes to the policy for scheduling days off constituted sex discrimination under Title VII.
Initially, the Fifth Circuit agreed with the County. Under its approach of prohibition of an ultimate employment decision, the policy did not violate Title VII. But the female officers appealed to the full court. The Fifth Circuit en banc took on the case. It noted that the county knew it was discriminating on the basis of sex. In a footnote of the Court described the situation:
“Before April 2019, Plaintiffs-Appellants’ schedules were based on seniority. However, in or around April 2019, [footnote omitted] a gender-based scheduling policy went into effect and only male officers were given full weekends off whereas female officers were allowed two weekdays off or one weekday and one weekend day off. Plaintiffs-Appellants alleged that [w]hen [they] asked the [s]ergeant how scheduling was determined, he stated that it was based on gender” and explained that it would be safer for the male officers to be off during the weekends as opposed to during the week.”
There was no doubt that the women were knowingly being discriminated against.
The Fifth Circuit, recognizing the facts of the case allowed for “legal” discrimination because the actions were not an “ultimate employment decision,” ruled that its precedent is wrong and established a new precedent in its circuit for discrimination claims. The Court stated:
“Satisfied that our ‘ultimate employment decision’ standard lies on fatally flawed foundations, we flatten it today. Instead, employees or job applicants only need to show that they were subjected to workplace bias “because of a protected characteristic, with respect to hiring, firing, compensation, or the ‘terms, conditions, or privileges of employment.'”
With this lower standard, employees and applicants merely have to allege bias in the process because of a protected characteristic or in the terms and conditions of employment. This case is an anomaly. It was obvious discrimination and should never have been allowed by the county in the first place. The Court recognized the true issue of their standard for discrimination if they allowed the county scheduling process to be approved.
There is a case up before the Supreme Court next term beginning in October, Muldrow v. City of St. Louis No. 22-193. This case is out of the 8th Circuit. It is another one of obvious discrimination. The question is, “Does Title VII prohibit discrimination in transfer decisions absent a separate court determination that the transfer decision caused a significant disadvantage?” Clayborn Muldrow was transferred from her position as a patrol detective to the Department's Intelligence Division, a preferable job which had better opportunities for pay and overtime and promotion, to another district doing administrative duties. Because her rank, pay, and responsibilities remained the same, the Eighth Circuit held that the transfer was legal. No harm no foul. In this case, the Supreme Court may establish new standards for discrimination under Title VII that may impact employers in Michigan. ASE will be following the case.
Given the changes from the NLRB on handbooks and the possibility of new discrimination standards, employers should review their handbooks to identify policies that could cause liability.
Source: Reuters 8/21/23, Seyfarth Shaw 8/21/23, Law360 8/18/23, OFCCP Week In Review: August 21, 2023, Bloomberg Law 6/30/23.