Update: The 5th Circuit has vacated the opinion described below and granted an en banc rehearing, to be scheduled. Hamilton v. Dallas County (5th Cir 10/13/2022) [PDF].

I would think that a clear-cut policy of assigning employee shifts based solely on gender would be a violation of Title VII. Actually an easy, open-and-shut case.

But not so in the 5th Circuit. Hamilton v. Dallas County (5th Cir 08/03/2022) [PDF].

Nine female detention service officers working at the Dallas County Jail alleged that days off were assigned based on gender – men get both weekend days, and women get one weekend day and one day during the week.

The trial court smacked them down on a Rule 12(b)(6) motion, and the 5th Circuit affirmed.

Why? Because – according to 5th Circuit precedent – this is not an "adverse employment action." In the 5th Circuit, “[a]dverse employment actions include only ultimate employment decisions such as hiring, granting leave, discharging, promoting, or compensating,”

So the three-judge panel was stuck with that rule, even though the panel said, "Surely allowing men to have full weekends off, but not women, on the basis of sex rather than a neutral factor like merit or seniority, constitutes discrimination with respect to the terms or conditions of those women’s employment."

In the end, the panel called for en banc review "to reexamine our ultimate-employment-decision requirement and harmonize our case law with our sister circuits’ to achieve fidelity to the text of Title VII."

Clearly the outcome is wrong. The US Supreme Court has often reminded lower courts that it is their job to apply statutes the way they are written, and not to add burdens that are not derived from the statute the way Congress wrote it.

I look forward to seeing an en banc decision in this case.