Imagine a business that gives its employees two days off each week. There’s nothing abnormal about that.
However, the company uses a sex-based policy to determine which two days an employee can pick. Only men can select full weekends off—women cannot. Instead, female employees can pick either two weekdays off or one weekend day plus one weekday; they never get an entire weekend off.
Is that discriminatory? Yes, But does this system violate Title VII of the Civil Rights Act of 1964, which makes it unlawful to discriminate at work based on sex?
In many states, it does not.
Because courts generally limit the universe of actionable adverse employment actions under Title VII to so-called “ultimate employment decisions” such as hiring, granting leave, discharging, promoting, or compensating — even though the phrase “ultimate employment decisions” appears nowhere in Title VII.
For decades, courts within the Fifth Circuit Court of Appeals applied this logic, too.
Consider this decision from 2019. The plaintiff “alleged that he and his black team members had to work outside without access to water, while his white team members worked inside with air conditioning.” The trial court dismissed the lawsuit, and the Fifth Circuit let that decision stand because “these working conditions were not adverse employment actions because they did not concern ultimate employment decisions.”
Does that sit well with you?
It didn’t with the full Fifth Circuit, which, when faced with my not-so-hypothetical overtime scenario, ruled en banc last week that “a plaintiff plausibly alleges a disparate-treatment claim under Title VII if she pleads discrimination in hiring, firing, compensation, or the ‘terms, conditions, or privileges’ of her employment.” Giving men full weekends off while denying the same to women is a sex-based policy that discriminates against women.
Congress did not limit the text of Title VII to “ultimate employment decisions.” Indeed, Title VII prohibits discrimination “with respect to … terms, conditions, or privileges of employment.” The Fifth Circuit emphasized that “the days and hours that one works are quintessential ‘terms or conditions’ of one’s employment.” Being able to choose a schedule is also a privilege, one that favors men over women here.
But here’s the rub.
Not every difference in how an employer treats one protected class versus another will be actionable. Indeed, the defendant argued that a plaintiff alleging a Title VII violation must still establish a “materially adverse employment action,” a “tangible employment action,” or an “objective material harm requirement.”
Put another way, Title VII does not extend to “de minimis” discrimination because the statute is not a “general civility code for the American workplace.” So, what constitutes a “workplace trifle” versus something material will depend on the facts and circumstances of each case.
Suffice it to say, however, implementing work rules based on sex is a poor foundation and will create animosity and invite litigation.