Fifth Circuit Court Of Appeals Expands Title VII Coverage In A Reversal Of Longstanding Precedent

On August 18, 2023, the United States Court of Appeals for the Fifth Circuit, in deciding the case Hamilton, et al. v. Dallas County, overruled a nearly 30-year-old line of precedent that limited actionable employment actions under Title VII to "ultimate employment decisions related to hiring, granting leave, discharges or compensation." The Fifth Circuit has jurisdiction over claims in Louisiana, Mississippi, and Texas.

New Standard:

A Fifth Circuit plaintiff now only needs to plead discrimination in hiring, firing, compensation, or the terms, conditions, or privileges of their employment; Proving an "ultimate employment decision" is no longer necessary.

What this means for employers:

The removal of any pleading requirement makes it easier for aggrieved employees to bring discrimination claims. Fifth Circuit employers, or employers with employees based in Louisiana, Mississippi, or Texas, may notice that more employees will be empowered to bring smaller discrimination claims once they learn that they no longer have to show an "ultimate employment decision." Employers may also notice that discrimination claims are proceeding further into the litigation process, as it will now be more difficult for defendants to resolve these claims by pre-trial motions.

Many circuits have implemented tests regarding the minimal amount of harm necessary for a claim to be actionable under Title VII. Unfortunately, the Fifth Circuit has not. As the Court of Appeals left this question open, we will likely see decisions in the near future attempting to define the scope and nature of harm necessary for an actionable employment discrimination claim in the Fifth Circuit. Because there is not currently a minimum-harm threshold, impacted employers should prepare themselves for a significant increase in discrimination claims alleging seemingly minor differences in "terms, conditions, or privileges" of employment.