5th Circuit OK’s unlawful discrimination: What’s next?

Riddle me this: How can admitted sex discrimination not be a violation of Title VII of the Civil Rights Act of 1964? The answer: In Texas, the U.S 5th Circuit Court of Appeals follows the “adverse employment action doctrine,” which limits Title VII violations to big-ticket discrimination in hiring, firing, failure to promote, and refusal to grant a raise. If the effect on employees isn’t in one of those buckets, they are out of luck, and the employer is rolling in clover. But for how much longer?

‘Yes, we discriminated because of sex!’

Female and male detention officers work at the Dallas County jail, and they perform the same duties. In April 2019, a new scheduling system was implemented, and it only gave male officers full weekends off work. In contrast, female officers were allowed two weekdays off or one weekday and one weekend day off. Why? According to the officers’ sergeant, it was safer for the male officers to be off during the weekends as opposed to during the week.

It's important to note that the number of inmates during the week is the same as the number on the weekends. The female officers complained to HR, but no relief was forthcoming, so they filed a Title VII lawsuit against Dallas County.

The district court, however, dismissed the claim because it didn’t “challenge an actionable adverse employment action.” It was then appealed to the 5th Circuit.

Lack of an ‘adverse employment action’