Title VII of the Civil Rights Act of 1964 prohibits employers from “discriminat[ing] against any individual with respect to h[er] compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.”

In April 2019, the Dallas County Sheriff’s Department allegedly implemented a gender-based scheduling policy in which only male detention service officers could receive full weekends off.

In February 2020, nine female detention service officers filed suit against Dallas County for violating Title VII, arguing that the scheduling policy discriminated against them because of their sex. Following Fifth Circuit precedent requiring plaintiffs to establish that they were discriminated against with respect to an “ultimate employment decision[] such as hiring, granting leave, discharging, promoting, or compensating” to state a claim for employment discrimination under Title VII, the district court dismissed Plaintiffs’ claims.

A panel of the Fifth Circuit Court of Appeals affirmed the dismissal, but stated that the case was an “ideal vehicle for the en banc court to reexamine our ultimate-employment-decision requirement.”

On November 21, 2022, CAC filed an amicus curiae brief in support of Plaintiffs, urging the en banc Fifth Circuit to overrule the requirement that a discriminatory act must constitute an “ultimate employment decision” for it to be a violation of Title VII. Our brief makes three main points.

First, our brief argued that Title VII’s plain text prohibits making employee scheduling decisions on the basis of sex. The statute explicitly prohibits discrimination “against any individual with respect to h[er] compensation, terms, conditions, or privileges of employment, because of such individual’s . . . sex.” At the time Title VII was enacted, the term “discriminate” meant “to make a difference in treatment or favor.” Allowing only certain employees to take full weekends off because of their sex is an inherent difference in treatment as it relates to the “terms,” “conditions,” and “privileges” of employment and accordingly violates Title VII.

Second, our brief explained that the Fifth Circuit Court’s current standard imposed requirements with no basis in the statutory text. We explained that although Title VII’s antiretaliation provision has been interpreted to require a showing of material adversity, similar requirements should not be imported to Title VII’s antidiscrimination provision, which uses different language and has a distinct purpose. We also explained that precedent governing when vicarious liability should be imposed has no bearing on whether prohibited discrimination occurred.

Third, our brief argued that the Fifth Circuit’s requirement was contrary to Congress’s plan in passing Title VII and the statute’s history. The Court has repeatedly emphasized the idea that “the paramount concern of Congress in enacting Title VII was the elimination of discrimination in employment,” whether “subtle or otherwise.” The historical record confirms that Title VII prohibits a wide swath of discriminatory employer actions that alter the terms, conditions, or privileges of an individual’s employment that are not “ultimate employment decisions.”

In sum, a scheduling decision made on the basis of sex violates Title VII because it inherently changes the terms, conditions, and privileges of employment. Imposing additional requirements contradicts the statute’s text and history.

On August 18, 2023, the U.S. Court of Appeals for the Fifth Circuit issued its decision, ruling in favor of the female officers and holding that Title VII plaintiffs need not show an “ultimate employment decision.”  Echoing our brief, the Court explained that “[n]owhere does Title VII say, explicitly or implicitly, that employment discrimination is lawful if limited to non-ultimate employment decisions.”