Fifth Circuit decision for Title VII discrimination claims

28 September 2023 1 min read

By Marc D. Katz and Michael W. Massiatte

At a glance

  • The Fifth Circuit Court of Appeals recently overruled its decades-long precedent that actionable adverse employment actions under Title VII are limited to 'ultimate employment decisions.'

The relevant case involved an employer that had utilised a gender-based scheduling policy which resulted in only male employees receiving full weekends off from work.

Specifically, the Fifth Circuit held that a plaintiff plausibly alleges a disparate-treatment claim under Title VII if they plead discrimination in hiring, firing, compensation, or the 'terms, conditions, or privileges' of their employment

The decision aligns with existing precedents in other federal circuits and may lead to an increase in discrimination claims based on a broader array of employment actions not involving ultimate employment decisions.  Additionally, the Fifth Circuit’s lack of clarity regarding the minimum level of workplace harm required to support a discrimination claim may hinder an employer’s ability to prevail on a summary judgment motions.

It is noteworthy that the Fifth Circuit’s decision applies to employers covered by Title VII in Louisiana, Mississippi, and Texas. It does not address the standard under the Texas Labour Code (or other state laws); however, similar to Title VII, Texas law prohibits discrimination 'in any other manner in connection with compensation or the terms, conditions, or privileges of employment.'