Texas court overrules 27-year-old rule that protected employers from discrimination litigation
A victory was scored for workers’ rights this month when a federal appeals court broadened its definition of discriminatory employer actions under Title 7 of the Civil Rights Act, lowering the bar for employee lawsuits.
The decision, while not necessarily meaning more Title 7 wins in courts, will mean more litigation as employees test the grey area left by the ruling.
“I don't think it'll get them more wins,” said Cliff W. Albright, president and founding partner of Albright, Yee & Schmit APC. “It may get more litigation, because people want to see ‘Does this work? Does that work? Will the court go along with us?’ until the Supreme Court comes and makes all the ultimate decisions.”
The case involved a group of female detention service officers working in a Texas jail who sued the Dallas County Sherriff’s Department for a sexually discriminatory scheduling policy that only allowed male officers to take weekends off.
The case was first tried in District Court, where it was dismissed because the claim did not prove any biased “ultimate employment decisions”, such as hiring, compensation and promotions — a precedent set almost 30 years ago.
It took three years and two appeals to the US Court of Appeals for the Fifth Circuit before it was finally decided the action was in fact discriminatory based on sex. The Fifth Circuit has maintained the highest bar for Title 7 claims in federal appeals courts; this decision brings it in line with other Federal Circuit courts in the country that are making similar changes to their Title 7 rules, The National Law Review reported.
“What the Fifth Circuit did was clarify the spirit of earlier rulings, and what the law is, with regard to discrimination,” said Albright. “Previously, if it wasn't an ultimate employment decision, ultimately affecting employment, then the courts would not disturb the previous precedent.”
The Circuit panel did not make the decision easily; the case was dismissed from District Court in 2020 because it didn’t meet the precedent. It then went through two rounds of appeals as Fifth Circuit judges grappled with the conundrum of women being denied the same scheduling privileges as men, when precedent dictated that there was no law broken:
“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,” read the 2020 rejected appeal decision. “Yet we are bound by this circuit’s precedent, which requires a Title 7 plaintiff to establish… that she ‘suffered some adverse employment action by the employer’.”
Then, in 2022, the Fifth Circuit appeals panel upheld that decision, but in its decision admitted the precedent needed revisiting. On January 23, 2023, the Fifth Circuit reheard the case before its en banc panel and decided to end the precedent.
