Female detention officers are asking a federal appeals court to reinstate a lawsuit over gender-based scheduling practices.

The 5th U.S. Circuit Court of Appeals convened en banc to review precedent that requires individuals alleging Title VII discrimination to show that they were subject to an “ultimate employment decision.”

In April 2019, the Dallas County Sheriff’s Department established a new scheduling policy. Under the policy, only male detention officers could receive a full weekend off. Female detention officers could receive two weekdays or a weekday and a Saturday or a Sunday off.

In February 2020, nine detention officers filed suit, arguing that the scheduling policy violated Title VII of the Civil Rights Act. Title VII prohibits employers from discriminating against any individual with respect to their “compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.”

The district court dismissed the plaintiffs’ claims citing Fifth Circuit precedent which requires plaintiffs to demonstrate they were discriminated against with respect to an “ultimate employment decision” such as hiring, granting leave, discharge, promotion, or compensation. Scheduling, in the court’s view, did not meet the requirement.

In October, a panel of the Fifth Circuit vacated that ruling and granted the officers’ petition for en banc review. The full panel heard oral arguments in late January 2023.

En banc review: An en banc review is a special hearing in which all the judges on a court participate in deciding a case. That is different from a typical decision, where only a subset of judges preside. An en banc hearing is usually reserved for cases of exceptional importance or where there is a need to reconsider a previous decision. It can be used to resolve an issue that has divided the court or to provide greater clarity to the law. En banc decisions are typically seen as more authoritative and carry greater weight than panel decisions.

Case arguments: The plaintiffs are arguing that the Fifth Circuit’s precedent is “atextual” and that scheduling practices fall well within Title VII protections regarding “terms and conditions” of employment.

Representatives for Dallas County disagree. They claim a broad reading would “open the floodgates” and create a subjective standard that couldn’t be administrated in the courts.

The Constitutional Accountability Center has filed an amicus curiae brief in support of the plaintiffs. They argue 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.” They further argue that “precedent governing when vicarious liability should be imposed has no bearing on whether prohibited discrimination occurred.”