By Linda C. Schoonmaker and Darien C. Harris

Seyfarth Synopsis:  The Dallas County Sheriff’s Department gives its detention officers two days off per week.  Prior to April 2019, the schedules were based on seniority, with most officers preferring to take their two days off during the weekend.  Sometime in April 2019, the Sheriff’s Department enacted a scheduling policy that prohibited its female detention officers from taking the full weekend off, allowing them to only take two weekdays off or one weekday and one weekend day off.  By contrast, it allowed the male officers to take the full weekend off. 

When the female officers asked their sergeant how scheduling was determined, the sergeant minced no words in confirming that the scheduling policy was indeed gender-based.  He insisted that it would be safer for the male officers to be off during the weekends as opposed to during the week.  Notably, the male and female officers performed the same tasks and the number of inmates during the week was the same as the number on weekends.  The female officers reported the scheduling policy to their sergeant, lieutenant, chief, and human resources to no avail.  Consequently, they filed a charge of discrimination with the Equal Employment Opportunity Commission and received Notice of Right to Sue Letters.

On February 10, 2020, the female officers sued for violations of Title VII and the Texas Employment Discrimination Act (“TEDA”).  Dallas County moved to dismiss the lawsuit, claiming that the female officers failed to state a plausible claim for relief because they did not suffer an adverse employment action.  The female officers responded that the gender-based scheduling policy harmed their work conditions and made their jobs objectively worse.  The trial court granted the County’s motion, despite acknowledging that the County’s scheduling was an unfair, facially discriminatory policy that could plausibly make the female officers’ jobs objectively worse because “binding precedent of this [c]ircuit compel[led]” it to hold that the female officers did not suffer an adverse employment action.

On appeal, the female officers argued that the trial court was wrong in considering whether the County’s scheduling policy constituted an adverse employment action rather than applying the statutory text of Title VII and the TEDA.  With an almost remorseful tone, the Fifth Circuit affirmed the trial court’s dismissal of the lawsuit, holding that the dismissal was correct under the Fifth Circuit’s definition of adverse employment action.  Despite clearly being discriminated against, the female officers had not shown that they suffered an adverse employment action – a  dispositive factor in attaching liability – because the Fifth Circuit has consistently defined “adverse employment action” to include only ultimate employment decisions such as hiring, granting leave, discharging, promoting, or compensating.  The appellate court was bound by a rule it developed one-score and seven years ago in Dollis v. Rubin, 77 F.3d 777 (5th Cir. 1995) in which it adopted language from a Fourth Circuit case regarding a different provision of Title VII:  “Title VII was designed to address ultimate employment decisions, not to address every decision made by employers that arguably might have some tangential effect upon those ultimate decisions.”  Even though its definition was at odds with that of several of its sister circuits, the Fifth Circuit panel was stuck with precedent.

Considering that this was a case of undisputed gender discrimination, the Fifth Circuit decided that the case was an ideal vehicle to reconsider its prior precedent, which can only be done by the entire court in this circumstance.  For that reason, the full Fifth Circuit has agreed to review the ultimate employment decision requirement to harmonize its future decisions with the spirit and letter of Title VII’s protection against sex discrimination. 


If the ultimate outcome of this case is the expansion of the Fifth Circuit’s definition of “adverse employment action”, employers in the Fifth Circuit may face more litigation because unhappy employees or former employees will no longer be as restricted in pursuing their claims.  Therefore, employers should confirm that any policies and practices which are expressly or implicitly discriminatory are supported by legitimate reasons even if applying the policy would result in an adverse employment action.

For more information on this or any related topic, please contact the authors, your Seyfarth attorney, or any member of the Workplace Counseling & Solutions Team.