Before getting started on the blog entry of the day, a couple of housekeeping matters in order. First, congratulations to the women of Spain for winning the World Cup. Second, my wife and I will be taking a very special trip abroad starting August 29 and returning September 8. So, this will be the last blog entry until the week of September 11.


The case of the day, Hamilton v. Dallas County, here, is actually not an ADA case at all. Rather, it is an en banc decision from the Fifth Circuit talking about what is an adverse action for purposes of title VII. The Fifth Circuit throws out its prior jurisprudence saying that an adverse action could only be an ultimate employment decision and then adopts a different test. The decision has implications for the question of whether a failure to accommodate is an adverse action, which is why I am blogging on this case. As usual, the blog entry is divided into categories and they are: majority opinion that ultimate employment decision is necessary for an adverse action is not good law; Judge Ho concurring opinion; Judge Jones concurring in the judgment only opinion; and thought/takeaways. Of course, the reader is free to focus on any or all of the categories.





The Dallas County Sheriff’s Department gives its detention service officer two days off each week. The department uses a sex-based policy to determine the two days an officer can pick. Only men can select the weekends off-women cannot do that. Instead, female officers can pick either two weekdays off or one weekend day plus one weekday. Bottom line: female officers never get a full weekend off.


Nine female detention service officer sued alleging that this policy violate title VII prohibition against sex discrimination. A panel of the Fifth Circuit held that its prior case law demanded an ultimate employment decision before an adverse action could be found. However, it also noted that it had severe reservations with that line of cases and invited the court as a whole to revisit that line of cases en banc. The 11th Circuit agreed to do so, and in this opinion they overturn that prior line of cases.



Majority Opinion That Ultimate Employment Decision Is Necessary for an Adverse Action Is Not Good Law


  1. 42 U.S.C. §2000e-2(a) makes it an unlawful employment practice for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against an individual with respect to his compensation, terms, condition, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.
  2. For decades in the Fifth Circuit, disparate treatment liability was limited to ultimate employment decisions.
  3. The Fifth Circuit decision setting forth an ultimate employment decision rule was actually based upon a misinterpretation of a prior Fourth Circuit decision. Nevertheless, the ultimate employment decision line of cases persisted for decades.
  4. Nowhere in title VII does it say implicitly or explicitly that employment discrimination of lawful is limited to non ultimate employment decisions.
  5. While it is true that the statute prohibits discrimination in ultimate employment decisions, the statute also makes it unlawful for an employer to otherwise discriminate against an employee with respect to terms, condition, or privileges of employment.
  6. Restricting liability under the statute only to ultimate employment decisions renders the statute catchall provision superfluous, which is something the court will not do.
  7. Absent persuasive indication to the contrary, it must be presumed that Congress says exactly what it means and means what it says. Here, Congress did not say that title VII liability is solely limited to ultimate employment decisions.
  8. The Supreme Court confirmed this approach. The Supreme Court has held that an adverse employment action need only be a term, condition, or privilege of employment. Also, it has been clear that a title VII plaintiff may recover damages even for discrimination in the terms, condition, or privileges of employment not involving a discharge, loss of pay, or other concrete effect on their employment status.
  9. Title VII’s coverage is also not limited to economic or tangible discrimination because it covers not only terms and conditions in the narrow sense, but also evinces a congressional intent to strike at the entire range of disparate treatment of men and women in employment. That is, any benefits comprising the incidents of employment, or forming an aspect of that relationship between the employer and the employee falls within title VII’s ban on discrimination.
  10. No other United States Court of Appeals has taken such a narrow view of an adverse employment action.
  11. The ultimate employment doctrine standard lies on fatally flawed foundations and must be overturned.
  12. Adverse action is not a statutory term but rather a judicially created term. Adverse action is utilized as a shorthand for the statutory phrase, “compensation, terms, conditions, or privileges of employment.”
  13. To show an adverse employment action, a plaintiff need only allege facts plausibly showing discrimination in hiring, firing, compensation, or in the terms, condition, or privileges of their employment.
  14. Terms, conditions, or privileges of employment is a very broad phrase not limited to economic or tangible discrimination and covers more than terms and conditions in the narrow contractual sense.
  15. The days and hours that a person works are classic terms or conditions of employment. In fact, those details go to the very heart of the work for pay arrangement.
  16. The complaint’s allegations also support a plausible inference that the right to pick work shifts based on seniority is a privilege of employment within the county.
  17. A benefit that is part and parcel of the employment relationship may not be handed out in a discriminatory fashion.
  18. The county’s position that a shift change, without more, is not an adverse employment action simply doesn’t hold up for two reasons. First, the Supreme Court has said that title VII is not limited to economic or tangible discrimination. Second, to accept this line of thinking would render superfluous the key phrase “terms, conditions, or privileges,” as the very same section already prohibit discrimination with respect to an employee’s compensation.
  19. Title VII does not permit liability for de minimis workplace trifles. Even so, it is plausible that requiring female officer to work weekends but not male officers is a tangible, objective, and material instance of sex discrimination in the terms, conditions, or privileges of employment and is far more than de minimis. Same can be said for denying seniority privileges to female officers while allowing male officers to exercise theirs.
  20. The court leaves for another day the precise level of minimum workplace harm that a plaintiff must allege on top of showing discrimination in one’s terms, conditions, or privileges of employment. The court reiterates this in a footnote when it says that nothing in the opinion or in the citation to other opinions should be read to forecast the Fifth Circuit view on what level of materiality is required for an adverse action.



Judge Ho Concurring Opinion


  1. When circuit court precedent is erroneous, it shouldn’t matter if overturning that precedent leads to more questions. The precedent needs to be overturned regardless, which is exactly what the en banc decision does (only an en banc decision has the authority to overturn erroneous circuit precedent).
  2. To phrase it another way, fidelity to text sometimes requires overturning a precedent. Overturning precedent sometimes results in unanswered questions the court may need to address in future cases. However, that is exactly what courts are for and it is not a reason to ignore text. The Supreme Court did exactly this in both Groff v. DeJoy, which we discussed here, and in the recent affirmative-action decisions.



Judge Jones Concurring in the Judgment Only Opinion


  1. The majority gets the result right but makes a mistake by not laying out what is an adverse action so that courts and others can have guidance. So, the majority essentially says that speeding is illegal but does not give a speed limit.
  2. The Supreme Court will resolve next term a Circuit Court split in a case asking similar questions as to what an adverse action is. So, it would have been more prudent to continue with the ultimate employment line of precedents until the Supreme Court comes down with a decision.
  3. A possible standard would be to say that actionable discrimination must entail a materially adverse change in working conditions when viewed objectively by a reasonable observer. Such a standard is supported by the provisions of §703(a)(1) and title VII cases dealing with hostile work environment, retaliation, and constructive discharge claims.
  4. Title VII does not effectuate a general civility code for the workplace. However, the majority opinion heads down that road because it has no baseline for discrimination based on terms or conditions of employment.





  1. It is hard to believe in 2023 that a county would have such a policy. Nevertheless, they do.
  2. We have previously discussed the emerging issue of terms, condition, or privileges of employment here for example.
  3. The ADA has very similar language to 42 U.S.C. §2000e-2(a), but it uses “on the basis of,” or “by reason of,” for causation. As we discussed here, causation has the same meaning despite the different terminology used in the statutes.
  4. More than de minimis can mean a lot of different things. For example, undue hardship/burden and fundamental alteration per the ADA. It also could mean what the Supreme Court talks about in Groff v. DeJoy, which we discussed here.
  5. A broad reading of what is an adverse action would certainly support the proposition that a failure to accommodate is an adverse action. Some circuit courts are already taking that position.
  6. Judge Jones is quite correct when she says that the Supreme Court next term will have two cases before it dealing with the adverse action question when it comes to title VII (a least one of them if not both-I would have to check-involved the question of transfer to another position).
  7. Judge Jones opinion lays out an idea that other courts, particularly the Supreme Court, might utilize as a standard.
  8. Judge Ho is also quite correct that the current Supreme Court doesn’t hesitate to overturn prior precedent it feels is erroneous regardless of what questions might arise when taking that approach.
  9. One wonders whether this case would not be appealed to the Supreme Court because the majority opinion sets forth such an amorphous standard. As a result, that arguably creates a Circuit Court split in courts that have a more concrete standard and take a narrower view of what an adverse action is.
  10. The cases before the Supreme Court next term as well as this one (one wonders if this case would not get folded into the other two cases perhaps), definitely bear watching because of the implications of the cases have on whether failure to accommodate requires an adverse action.