Tribunal de Apelação tradicionalmente favorável aos empregadores dá vitória aos empregados ao ampliar o que se qualifica como discriminação

If you are a loyal reader of our blog (which you should be), you know that employee protections have been broadening in recent times — be it by changes to laws (federal and state), agency guidance (like the NLRB opinion discussed in this week’s companion article), and/or court rulings. That trend continues, and by way of an unlikely source — the historically conservative and employer-friendly Federal Court of Appeals for the Fifth Circuit (which covers the southern states of Texas, Mississippi, and Louisiana).

In the case at issue, Hamilton v. Dallas County, the Fifth Circuit analyzed a county policy that allowed only male detention officers to be scheduled full weekends off (Saturday and Sunday). In contrast, women were only permitted to be scheduled off two weekdays or one weekday and one weekend day. The issue was whether the county’s sex-based scheduling policy, which provided males with preferred full weekends off, could result in a violation of federal antidiscrimination law. The Court unwound thirty years of precedent and held that denial of preferential schedules was an employment action that could serve as a basis for discrimination claims.

The Fifth Circuit set aside a fairly straightforward legal standard that required discrimination lawsuits to be based on “ultimate employment decisions” pertaining to hiring, terminations, leave, or compensation.  Generally speaking, ultimate employment decisions required a tangible and material action, such as a termination, demotion, reduction in pay, etc. — and scheduling would not qualify as a sufficiently material action.

Under the Fifth Circuit’s new standard, employees and job applicants only need to show that they were discriminated against because of their race, gender, age, or other protected characteristic, in regard to hiring, firing, compensation, or the “terms, conditions, or privileges of employment.” The appeals court, however, provided no other guidance as to what actions would or would not be sufficient other than that preferential schedules and/or shifts could be sufficient to satisfy this standard. Accordingly, employers in Texas, Mississippi, and Louisiana are left in the proverbial “dark” regarding what actions may or may not subject them to potential liability under federal anti-discrimination laws.

We will continue to monitor developments regarding this issue and report any changes or further guidance. In the meantime, employers, especially those in Texas, Mississippi, and Louisiana, should be cautious implementing or enforcing any practice or policy that results in potentially unfavorable treatment of a protected group. Please contact your Foley & Lardner Labor and Employment attorney with questions.