Tuesday, August 22, 2023

5th Circuit rejects the “ultimate employment decision” test for workplace discrimination claims

"Female employees are not given full weekends off and can only receive weekdays or partial weekends off."

Is this policy legal or illegal? 

Until last week, that scheduling policy would have been legal in the 5th Circuit, because that court applied the "ultimate employment decision" standard to workplace discrimination claims. Under that test, to successfully plead a discrimination claim a plaintiff would need to establish that the alleged discriminatory act consisted of an "ultimate employment decision such as hiring, granting leave, discharging, promoting, and compensating."

Last week, however, the 5th Circuit abandoned the "ultimate employment decision" test and joined the 2nd, 4th, 6th, 9th, and 11th Circuits in holding: "To adequately plead an adverse employment action … a plaintiff need only show that she was discriminated against, because of a protected characteristic, with respect to hiring, firing, compensation, or the 'terms, conditions, or privileges of employment.'" In other words, all employment terms are material, not just those that result in an "ultimate employment decision" or otherwise cause economic harm.

While the court made clear that the law still does not redress "de minimis workplace trifles" because Title VII isn't "a general civility code for the American workplace," no matter the legal standard in play, requiring female employees to work weekends but not male employees "is a 'tangible,' 'objective,' and 'material' instance of sex discrimination" triggering a claim under Title VII.

Legally, this case is fascinating, as the reliably conservative and employer-friendly 5th Circuit adopted a decidedly pro-employee pleading standard for workplace discrimination cases. Practically, however, this case should have little impact on your day-to-day workplace practices no matter the judicial circuit(s) in which your business operates. A protected-class-based policy has been and will remain a bad business practice that you should avoid at all costs, no matter the legal standard under which courts will judge it.