The 5th Circuit – en banc – has ruled that a Title VII plaintiff is not required to plead an "ultimate employment decision": hiring, granting leave, discharging, promoting, or compensating. Hamilton v. Dallas County (5th Cir en banc 08/18/2023) [PDF].

The Dallas County Sheriff’s Department gives its detention service officers two days off each week. The department uses an admittedly sex-based policy to determine which two days an officer can pick. Only men can select full weekends off—women cannot. Instead, female officers can pick either two weekdays off or one weekend day plus one weekday. Bottom line: Female officers never get a full weekend off.

The 5th Circuit's response to these facts:

"Today we hold that a plaintiff plausibly alleges a disparate-treatment claim under Title VII if she pleads discrimination in hiring, firing, compensation, or the “terms, conditions, or privileges” of her employment. She need not also show an “ultimate employment decision,” a phrase that appears nowhere in the statute and that thwarts legitimate claims of workplace bias. Here, giving men full weekends off while denying the same to women—a scheduling policy that the County admits is sex-based—states a plausible claim of discrimination under Title VII."

Many courts have adopted the "ultimate employment decision" requirement, even though it has absolutely no connection to the text of the statute. One horrible example is the case in which a Black employee alleged that he and his Black team members had to work outside without access to water, while his white team members worked inside with air conditioning. The 5th Circuit turned him down for lack of an "ultimate employment decision." Peterson v. Linear Controls, 757 F. App’x 370, 373 (5th Cir. 2019) (per curiam), cert. dismissed, 140 S. Ct. 2841 (2020).

The current decision from the "conservative" 5th Circuit is most welcome.

Note: A similar case is pending at the US Supreme Court. A police sergeant alleged that she was the victim of sex discrimination because she was involuntarily transferred from her position in the Intelligence Division to a patrol position because her supervisor wanted to hire a man for her job. The Supreme Court narrowed the question presented to "Does Title VII prohibit discrimination in transfer decisions absent a separate court determination that the transfer decision caused a significant disadvantage?" Muldrow v. City of St. Louis (US Supreme Ct cert granted 06/30/2023) [Briefs]