Hamilton v. Dallas County

Case: 21-10133 Document: 00516863689 Page: 1 Date Filed: 08/18/2023

United States Court of Appeals

for the Fifth Circuit United States Court of Appeals

Fifth Circuit

____________ FILED

August 18, 2023

No. 21-10133 Lyle W. Cayce

____________ Clerk

Felesia Hamilton; Tashara Caldwell; Brenda Johnson;

Arrisha Knight; Jamesina Robinson; Debbie Stoxstell;

Felicia Smith; Tameka Anderson-Jackson; Tammy

Island,

Plaintiffs—Appellants,

versus

Dallas County, doing business as Dallas County Sheriff’s Department,

Defendant—Appellee.

______________________________

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 3:20-CV-313

______________________________

Before Richman, Chief Judge, and Higginbotham, Jones, Smith,

Stewart, Elrod, Southwick, Haynes, Graves, Higginson,

Willett, Ho, Duncan, Engelhardt, Oldham, Wilson, and

Douglas, Circuit Judges.

Don R. Willett, Circuit Judge, joined by Richman, Chief Judge, and

Higginbotham, Stewart, Elrod, Southwick, Haynes,

Graves, Higginson, Ho, Duncan, Engelhardt, Wilson, and

Douglas, Circuit Judges:

For almost 60 years, Title VII has made it unlawful for an employer

“to fail or refuse to hire or to discharge any individual, or otherwise to

Case: 21-10133 Document: 00516863689 Page: 2 Date Filed: 08/18/2023

No. 21-10133

discriminate against any individual with respect to his [or her] compensation,

terms, conditions, or privileges of employment, because of such individual’s

race, color, religion, sex, or national origin.” 1 Despite this broad language,

we have long limited the universe of actionable adverse employment actions

to so-called “ultimate employment decisions.” We end that interpretive

incongruity today.

* * *

The Dallas County Sheriff’s Department gives its detention service

officers two days off each week. The department uses a sex-based policy to

determine which two days an officer can pick. Only men can select full

weekends off—women cannot. 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 officers sued Dallas County, alleging

that this sex-based scheduling policy violates Title VII’s prohibition against

sex discrimination. Constrained by our decades-old, atextual precedent, a

panel upheld dismissal of the officers’ complaint, ruling that the

discriminatory scheduling policy did not amount to an “ultimate

employment decision.” But the panel noted that this case was the “ideal

vehicle” for the en banc court to align our circuit with Title VII’s text.

Today we hold 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.

She need not also show an “ultimate employment decision,” a phrase that

appears nowhere in the statute and that thwarts legitimate claims of

_____________________

1

42 U.S.C. § 2000e-2(a)(1).

2

Case: 21-10133 Document: 00516863689 Page: 3 Date Filed: 08/18/2023

No. 21-10133

workplace bias. Here, giving men full weekends off while denying the same

to women—a scheduling policy that the County admits is sex-based—states

a plausible claim of discrimination under Title VII.

We REVERSE and REMAND.

I

This case concerns a sex-based scheduling system for jail guards in the

Dallas County Sheriff’s Department.

The plaintiffs are nine female correctional officers who allege that

their shift schedules used to be “determined based on seniority.” Beginning

in April 2019, however, the County adopted a sex-based scheduling policy

under which “only male officers are given full weekends off.” “Female

employees are not given full weekends off and can only receive weekdays

and/or partial weekends off.” But weekend days are “preferred days off” for

both men and women. As a result, schedules are sex-based even though

“male and female employees perform the same tasks.” 2

After exhausting their administrative remedies, the Officers sued the

County for sex discrimination under Title VII, 42 U.S.C. §§ 2000e et seq.

The Officers also asserted a parallel state-law discrimination claim under the

Texas Employment Discrimination Act, Tex. Lab. Code §§ 21.001 et

seq.

_____________________

2

The Officers’ supervisor explained that the rationale behind this policy is “that

it would be unsafe for all the men to be off during the week and that it was safer for the men

to be off on the weekends.” However, “male and female employees perform the same tasks

and the number of inmates during the week is the same as the number of inmates on the

weekend.” The County also states in its briefs that the policy was only “temporary,” but

this fact does not appear in the complaint.

3

Case: 21-10133 Document: 00516863689 Page: 4 Date Filed: 08/18/2023

No. 21-10133

The district court granted the County’s motion to dismiss under Rule

12(b)(6), noting that, under our precedent, “an adverse employment action

for Title VII discrimination claims consists of ‘ultimate employment

decisions such as hiring, granting leave, discharging, promoting, and

compensating.’” 3 Applying that precedent, the district court reasoned that

“[c]hanges to an employee’s work schedule, such as the denial of weekends

off, are not an ultimate employment decision.” 4 Because the adverse-

employment-action element of the prima-facie Title VII case was missing,

the district court dismissed the complaint. 5

On initial appeal, a panel of our court affirmed, reasoning along the

same lines. Noting that the County did “not dispute its discriminatory

intent,” 6 the panel observed that “[t]he conduct complained of here fits

squarely within the ambit of Title VII’s proscribed conduct: discrimination

with respect to the terms, conditions, or privileges of one’s employment

because of one’s sex.” 7 The panel added:

• “Given the generally accepted meaning of those terms, the

County would appear to have violated Title VII.” 8

• “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 with respect

_____________________

3

Hamilton v. Dallas Cnty., 2020 WL 7047055, at *2 (N.D. Tex. Dec. 1, 2020)

(quoting Felton v. Polles, 315 F.3d 470, 486 (5th Cir. 2002)).

4

Id. (citing Benningfield v. City of Houston, 157 F.3d 369 (5th Cir. 1998)).

5

Id. at *3.

6

Hamilton v. Dallas Cnty., 42 F.4th 550, 553 (5th Cir. 2022).

7

Id. at 555.

8

Id.

4

Case: 21-10133 Document: 00516863689 Page: 5 Date Filed: 08/18/2023

No. 21-10133

to the terms or conditions of those women’s

employment.” 9

• “[T]he benefits that come with seniority, here, the ability

to request one’s preferred days off, should amount to a

privilege of employment.” 10

Even so, the panel concluded that it was “bound by this circuit’s

precedent, which requires a Title VII plaintiff” to have “suffered some

adverse employment action by the employer” and which says that “adverse

employment actions include only ultimate employment decisions such as

hiring, granting leave, discharging, promoting, or compensating.” 11 Because

“the denial of weekends off is not an ultimate employment decision,” the

panel affirmed the district court’s dismissal. 12 The panel concluded by urging

the full court to “reexamine our ultimate-employment-decision

requirement” in light of our deviation from Title VII’s plain text. 13 We

granted rehearing en banc to do so.

II

Our standard of review and the dismissal rules under Rule 12(b)(6) are

well settled. “We review de novo the district court’s dismissal for failure to

_____________________

9

Id.

10

Id. (footnote omitted).

11

Id. (cleaned up) (first quoting McCoy v. City of Shreveport, 492 F.3d 551, 556 (5th

Cir. 2007); and then quoting Welsh v. Fort Bend Indep. Sch. Dist., 941 F.3d 818, 824 (5th

Cir. 2019)).

12

Id. at 556 (first citing Hernandez v. Sikorsky Support Servs., Inc., 495 F. App’x

435, 438 (5th Cir. 2012) (per curiam) (unpublished); and then citing Mylett v. City of Corpus

Christi, 97 F. App’x 473, 475 (5th Cir. 2004) (per curiam) (unpublished)).

13

Id. at 557.

5

Case: 21-10133 Document: 00516863689 Page: 6 Date Filed: 08/18/2023

No. 21-10133

state a claim under Rule 12(b)(6).” 14 “To survive a motion to dismiss, a

complaint must contain sufficient factual matter, accepted as true, to ‘state a

claim to relief that is plausible on its face.’” 15 “A claim has facial plausibility

when the plaintiff pleads factual content that allows the court to draw the

reasonable inference that the defendant is liable for the misconduct

alleged.” 16

III

The facts alleged paint a clear picture of disparate treatment “because

of” the Officers’ “sex.” 17 And the County does not dispute its

discriminatory intent. 18 Therefore, the only issue before us is whether the

Officers have plausibly alleged facts constituting an actionable adverse

employment action under Title VII.

A

We begin by considering whether Section 703(a) of Title VII, 19 the so-

called anti-discrimination provision, 20 applies only to “ultimate employment

decisions.” It is not so limited.

_____________________

14

Ghedi v. Mayorkas, 16 F.4th 456, 463 (5th Cir. 2021).

15

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly,

550 U.S. 544, 570 (2007)).

16

Id.

17

42 U.S.C. § 2000e-2(a)(1).

18

See Hamilton, 42 F.4th at 553.

19

42 U.S.C. § 2000e-2(a).

20

See Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 61 (2006).

6

Case: 21-10133 Document: 00516863689 Page: 7 Date Filed: 08/18/2023

No. 21-10133

“As with any question of statutory interpretation, our analysis begins

with the plain language of the statute.” 21 Section 703(a) states:

It shall be an unlawful employment practice for an employer—

(1) to fail or refuse to hire or to discharge any individual,

or otherwise to discriminate against any individual with

respect to his compensation, terms, conditions, or

privileges of employment, because of such individual’s

race, color, religion, sex, or national origin; or

(2) to limit, segregate, or classify his employees or

applicants for employment in any way which would

deprive or tend to deprive any individual of employment

opportunities or otherwise adversely affect his status as

an employee, because of such individual’s race, color,

religion, sex, or national origin. 22

Our focus today is on the first subsection. 23

For decades, our precedent has limited disparate-treatment liability

under Section 703(a)(1) to “ultimate employment decisions.” By this phrase,

we meant “‘only ultimate employment decisions such as hiring, granting

leave, discharging, promoting, or compensating.’” 24

_____________________

21

Jimenez v. Quarterman, 555 U.S. 113, 118 (2009).

22

42 U.S.C. § 2000e-2(a).

23

Although neighboring § 2000e-2(a)(2)’s prohibition is broader, making it

unlawful “to limit, segregate, or classify . . . employees . . . in any way which would deprive

or tend to deprive [them] of employment opportunities or otherwise adversely affect [their]

status as . . . employee[s], because of . . . race” or “sex,” this language forms the basis for

disparate-impact claims, whereas disparate-treatment claims are properly brought under

§ 2000e-2(a)(1). See Carpenter v. Stephen F. Austin State Univ., 706 F.2d 608, 619 n.7 (5th

Cir. 1983).

24

Welsh, 941 F.3d at 824 (quoting McCoy, 492 F.3d at 559); see also Alvarado v. Tex.

Rangers, 492 F.3d 605, 612 (5th Cir. 2007); Pegram v. Honeywell, Inc., 361 F.3d 272, 282

(5th Cir. 2004); Thompson v. City of Waco, 764 F.3d 500, 503 (5th Cir. 2014) (“For Title

7

Case: 21-10133 Document: 00516863689 Page: 8 Date Filed: 08/18/2023

No. 21-10133

We first used that phrase almost 30 years ago in Dollis v. Rubin, which

declared that “Title VII was designed to address ultimate employment

decisions, not to address every decision made by employers that arguably

might have some tangential effect upon those ultimate decisions.” 25 But the

only authority Dollis cited for this proposition was Page v. Bolger, a 1981 case

(and the origin of the phrase “ultimate employment decision”) in which the

Fourth Circuit observed that then-extant Title VII caselaw had “focused on

the question whether there has been discrimination in what could be

characterized as ultimate employment decisions such as hiring, granting

leave, discharging, promoting, and compensating.” 26 Ironically, the Fourth

Circuit in Page then qualified this comment, writing, “[W]e suggest no

general test for defining those ‘ultimate employment decisions’ . . . covered

by . . . antidiscrimination provisions of Title VII. . . . [T]here are certainly

[decisions] other[] than those we have so far specifically identified that may

be so considered for example, entry into training programs.” 27 Thus, Dollis’s

embrace of an “ultimate employment decision” rule was based on a

misinterpretation of Page, which used that phrase merely to describe trends

_____________________

VII and § 1981 discrimination claims, we have held that adverse employment actions

consist of ‘ultimate employment decisions’ such as hiring, firing, demoting, promoting,

granting leave, and compensating.”).

25

77 F.3d 777, 781–82 (5th Cir. 1995) (per curiam). Although Dollis involved a claim

not of discrimination in violation of 42 U.S.C. § 2000e-2(a), but of retaliation for engaging

in Title VII-protected activity in violation of § 2000e-3(a), Dollis did not limit its holding

to retaliation claims, and our subsequent decisions applied Dollis’s “ultimate employment

decision” requirement in disparate-treatment cases as well. See Felton, 315 F.3d at 486.

26

645 F.2d 227, 233 (4th Cir. 1981) (en banc).

27

Id.

8

Case: 21-10133 Document: 00516863689 Page: 9 Date Filed: 08/18/2023

No. 21-10133

in Title VII litigation, not to restrict Title VII’s broad coverage to a handful

of examples of discrimination mentioned in the Page opinion. 28

Bound by this standard, we have reached some remarkable

conclusions. Consider Peterson v. Linear Controls, Inc., where 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.” 29 Noting that “[o]ur court strictly construes adverse

employment actions to include only ‘ultimate employment decisions,’ such

as ‘hiring, granting leave, discharging, promoting, or compensating,’” we

held “that these working conditions [were] not adverse employment actions

because they [did] not concern ultimate employment decisions.” 30

But that’s not what the statute says—at all.31 Nowhere does Title VII

say, explicitly or implicitly, that employment discrimination is lawful if

limited to non-ultimate employment decisions. To be sure, the statute

prohibits discrimination in ultimate employment decisions—“hir[ing],”

“refus[ing] to hire,” “discharg[ing],” and “compensation”—but it also

makes it unlawful for an employer “otherwise to discriminate against” an

_____________________

28

The Fourth Circuit itself has also disapproved of our interpretation of Page. See

Von Gunten v. Maryland, 243 F.3d 858, 866 n.3 (4th Cir. 2001).

29

757 F. App’x 370, 373 (5th Cir. 2019) (per curiam), cert. dismissed, 140 S. Ct. 2841

(2020).

30

Id. at 373 (quoting McCoy, 492 F.3d at 559).

31

See Hardison v. Skinner, No. 20-30643, 2022 WL 2668514, at *6 (5th Cir. July 11,

2022) (Dennis, J., specially concurring) (noting that the ultimate-employment-decision

standard is a “judge-crafted limitation” with “no basis in the plain text or legislative history

of Title VII”).

9

Case: 21-10133 Document: 00516863689 Page: 10 Date Filed: 08/18/2023

No. 21-10133

employee “with respect to [her] terms, conditions, or privileges of

employment.” 32

Our ultimate-employment-decision test ignores this key language. But

“[t]hese words cannot be meaningless, else they would not have been

used.” 33 Restricting liability under the statute to “‘ultimate employment

decisions such as hiring, granting leave, discharging, promoting, or

compensating’” 34 renders the statute’s catchall provision all but

superfluous. This we cannot do. 35 “Absent persuasive indications to the

contrary, we presume Congress says what it means and means what it

says.” 36 And here, Congress did not say that Title VII liability is limited to

ultimate employment decisions.

Supreme Court precedent confirms this conclusion. The Court has

held that an adverse employment action “need only be a term, condition, or

privilege of employment.” 37 And it has been clear that a Title VII plaintiff

may recover damages even for “discrimination in the ‘terms, conditions, or

privileges of employment’” that “did not involve a discharge,” “loss of

pay,” or other “concrete effect on [his or her] employment status.” 38 Nor is

_____________________

32

42 U.S.C. § 2000e-2(a)(1).

33

United States v. Butler, 297 U.S. 1, 65 (1936).

34

Welsh, 941 F.3d at 824 (quoting McCoy, 492 F.3d at 559).

35

See Duncan v. Walker, 533 U.S. 167, 174 (2001) (“It is our duty to give effect, if

possible, to every clause and word of a statute.” (quoting United States v. Menasche, 348

U.S. 528, 538–39 (1955)) (internal quotation marks omitted)).

36

Simmons v. Himmelreich, 578 U.S. 621, 627 (2016).

37

Hishon v. King & Spalding, 467 U.S. 69, 77 (1984).

38

Landgraf v. USI Film Prod., 511 U.S. 244, 254 (1994) (quoting 42 U.S.C. § 2000e-

2(a)(1)).

10

Case: 21-10133 Document: 00516863689 Page: 11 Date Filed: 08/18/2023

No. 21-10133

Title VII’s coverage “limited to ‘economic’ or ‘tangible’ discrimination.” 39

This is because Section 703(a)(1) “not only covers ‘terms’ and ‘conditions’

in the narrow contractual sense, but ‘evinces a congressional intent to strike

at the entire spectrum of disparate treatment of men and women in

employment.’” 40 Any “benefits that comprise the incidents of employment,

or that form an aspect of the relationship between the employer and

employees,” the Court has explained, fall within Title VII’s ban on

discrimination. 41

It is no wonder, then, that “[n]o other court of appeals applies so

narrow a concept of an adverse employment action” as the “‘ultimate

employment decision’ rule.” 42 Satisfied that our “ultimate employment

decision” standard lies on fatally flawed foundations, we flatten it today.

Having done away with our atextual “ultimate employment decision” gloss,

we apply the statute as it is written and as construed by the Supreme Court.

B

It should go without saying by now, but “we think it reasonable to

begin with Title VII’s text.” 43 Under Title VII, it is an unlawful employment

practice for an employer “to fail or refuse to hire or to discharge any

individual, or otherwise to discriminate against any individual with respect to

his compensation, terms, conditions, or privileges of employment, because

_____________________

39

Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 64 (1986).

40

Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 78 (1998) (quoting Meritor,

477 U.S. at 64).

41

Hishon, 467 U.S. at 75 (cleaned up) (first quoting S. Rep. No. 867, 88th Cong.,

2d Sess., 11 (1964)); and then quoting Allied Chem. & Alkali Workers v. Pittsburgh Plate Glass

Co., 404 U.S. 157, 178 (1971)).

42

Hardison, 2022 WL 1136038, at *6 (Dennis, J., specially concurring).

43

Groff v. DeJoy, 143 S. Ct. 2279, 2294 (2023).

11

Case: 21-10133 Document: 00516863689 Page: 12 Date Filed: 08/18/2023

No. 21-10133

of such individual’s race, color, religion, sex, or national origin.” 44 This

language contains two elements. To plead a disparate-treatment claim under

Title VII, a plaintiff must allege facts plausibly showing “(1) an ‘adverse

employment action,’ (2) taken against a plaintiff ‘because of her protected

status.’” 45

At issue in this case is the first element: whether the Officers have

adequately shown an “adverse employment action” for Title VII purposes.

That term, which appears nowhere in the statute, is “a judicially-coined term

utilized as shorthand for the statutory phrase ‘compensation, terms,

conditions, or privileges of employment.’” 46 Thus, to plead an adverse

employment action, a plaintiff need only allege facts plausibly showing

discrimination in hiring, firing, compensation, or in the “terms, conditions,

_____________________

44

42 U.S.C. § 2000e-2(a)(1). The Texas Employment Discrimination Act uses

similar language, stating that an employer commits an unlawful employment practice if it

“fails or refuses to hire an individual, discharges an individual, or discriminates in any other

manner against an individual in connection with compensation or the terms, conditions, or

privileges of employment.” Tex. Lab. Code § 21.051(1).

45

Cicalese v. Univ. of Texas Med. Branch, 924 F.3d 762, 767 (5th Cir. 2019) (citation

omitted) (emphasis omitted).

At the pleading stage, a plaintiff need not plead a prima facie case under the

McDonnell Douglas framework, 411 U.S. 792 (1973), though it is sometimes helpful to frame

the analysis that way to determine whether a plaintiff has been discriminated against because

of a protected characteristic. See Swierkiewicz v. Sorema N.A., 534 U.S. 506, 510–11 (2002);

Olivarez v. T-Mobile USA, Inc., 997 F.3d 595, 600 (5th Cir. 2021); cf. Comcast Corp. v. Nat’l

Ass’n of Afr. Am.-Owned Media, 140 S. Ct. 1009, 1019 (2020) (“For its part, McDonnell

Douglas sought only to supply a tool for assessing claims, typically at summary judgment,

when the plaintiff relies on indirect proof of discrimination.”).

46

Thompson, 764 F.3d at 508 (Smith, J., dissenting) (quoting 42 U.S.C. § 2000e-

2(a)(1)); Stone v. La. Dep’t of Revenue, 590 F. App’x 332, 339 (5th Cir. 2014) (per curiam)

(“We use the shorthand term ‘adverse employment action’ to refer to an employment

decision that negatively affects the compensation, terms, conditions, or privileges of

employment.”).

12

Case: 21-10133 Document: 00516863689 Page: 13 Date Filed: 08/18/2023

No. 21-10133

or privileges” of his or her employment. 47 Here, of course, the Officers allege

discrimination in the catchall category: the “terms, conditions, or privileges

of employment.” 48

Before applying the law to the Officers’ allegations, we are mindful

that the statutory phrase, “terms, conditions, or privileges of employment,”

is broad. As the Supreme Court has repeatedly stated, this language, while

contractual in nature, “is not limited to ‘economic’ or ‘tangible’

discrimination,” and “it covers more than ‘terms’ and ‘conditions’ in the

narrow contractual sense.” 49 Indeed, the Court has held that even a

discriminatory and hostile work environment—when sufficiently severe or

pervasive—can rise to the level of altering the terms, conditions, or privileges

of employment for Title VII purposes. 50 The Officers have not brought a

hostile-work-environment claim, of course, but the Court’s elucidation of the

statutory text in that context nonetheless informs our construction of the

very same text for purposes of disparate-treatment claims.

Turning to the Officers’ claims, we have little difficulty concluding

that they have plausibly alleged discrimination “with respect to [their] . . .

terms, conditions, or privileges of employment.” 51 The days and hours that

_____________________

47

42 U.S.C. § 2000e-2(a)(1); Hishon, 467 U.S. at 77 (noting that the challenged

employment action “need only be a term, condition, or privilege of employment”).

48

The Texas statute uses materially identical language. See Tex. Lab. Code

§ 21.051(1) (“terms, conditions, or privileges of employment”).

49

Faragher v. City of Boca Raton, 524 U.S. 775, 786 (1998) (internal quotation marks

omitted) (first quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993); and then quoting

Oncale, 523 U.S. at 78).

50

Harris, 510 U.S. at 21–22; Meritor, 477 U.S. at 63–67.

51

42 U.S.C. § 2000e-2(a)(1).

13

Case: 21-10133 Document: 00516863689 Page: 14 Date Filed: 08/18/2023

No. 21-10133

one works are quintessential “terms or conditions” of one’s employment. 52

Indeed, these details go to the very heart of the work-for-pay arrangement.

Additionally, the complaint’s allegations support a plausible inference that

the right to pick work shifts based on seniority is a “privilege” of employment

with the County. And “[a] benefit that is part and parcel of the employment

relationship may not be doled out in a discriminatory fashion.” 53 Here, by

switching from a seniority-based scheduling system to one based on sex, the

County plausibly denied the Officers the “privilege” of seniority because of

their sex.

The Sixth Circuit recently reached the same conclusion in a strikingly

similar case. In Threat v. City of Cleveland, the plaintiffs alleged that their

employer had assigned night and day shifts based on race, even though the

employer had previously used a seniority-based scheduling system. 54 Noting

that it was a rather “straightforward” application of the English language,

the Sixth Circuit held that “[a] shift schedule is a term of employment.” 55 It

further held that “[b]enefits that come with seniority may count as privileges

of employment. And losing out on a preferred shift may diminish benefits

that a senior employee has earned.” 56 “It’s not even clear that we need

dictionaries to confirm what fluent speakers of English know.” 57 We agree

with that court’s reasoning. Here, as in Threat, switching from a seniority-

_____________________

52

See Hishon, 467 U.S. at 75–76 & 76 n.8 (noting that “wages” and “hours” come

within the statutory phrase, “terms and conditions of employment,” under a directly

analogous statute (citing Allied Chem. & Alkali Workers, 404 U.S. 157)).

53

Id. at 75.

54

6 F.4th 672, 676 (6th Cir. 2021).

55

Id. at 677 (“How could the when of employment not be a term of employment?”).

56

Id.

57

Id.

14

Case: 21-10133 Document: 00516863689 Page: 15 Date Filed: 08/18/2023

No. 21-10133

based system to a sex-based system discriminates against employees in the

“terms, conditions, or privileges of employment.” 58 It’s that simple. At the

pleading stage, these allegations are sufficient to state a claim under Title VII.

The County’s contrary position is that “a shift change, without more,

is not an adverse employment action.” The County says that we should

ignore Title VII’s text by limiting liability for disparate treatment to cases in

which the employer’s actions “directly cause, or are likely to cause in the

future, loss of or reduced employment compensation.” Such a standard, they

contend, is objective, judicially administrable, and necessary to hold back

what (they say) would otherwise be a flood of Title VII litigation over run-of-

the-mill workplace squabbles.

But even putting aside the fact that Title VII’s text, on its face, is not

limited to economically adverse employment actions, we cannot construe the

statute in this manner. For one, the Supreme Court has repeatedly stated that

Section 703(a)’s text “is not limited to ‘economic’ or ‘tangible’

discrimination.” 59 For another, to limit Title VII liability to cases in which

the employer’s discrimination impacted an employee’s compensation would

render superfluous the key phrase “terms, conditions, or privileges,” as the

very same section already prohibits discrimination “with respect to [an

employee’s] compensation.” 60 Clearly, then, such a crabbed reading of the

statute cannot be right. 61

As a fallback position, the County suggests that we should require a

plaintiff to show—in addition to discrimination with respect to the “terms,

_____________________

58

42 U.S.C. § 2000e-2(a)(1).

59

Faragher, 524 U.S. at 786 (quoting Harris, 510 U.S. at 21).

60

42 U.S.C. § 2000e-2(a)(1).

61

See Duncan, 533 U.S. at 174.

15

Case: 21-10133 Document: 00516863689 Page: 16 Date Filed: 08/18/2023

No. 21-10133

conditions, or privileges of employment”—a “materially adverse

employment action,” a “tangible employment action,” or an “objective

material harm requirement.” At the very least, it contends, Title VII liability

does not extend to “de minimis” discrimination. Indeed, most of the

County’s briefing is devoted to rebutting the Officers’ position, which is that

Title VII “establishes no minimum level of actionable harm.” There is some

merit to the County’s position, as nearly every circuit court seems to have

adopted one of these limitations. 62 And we readily acknowledge that the

Supreme Court has cautioned federal courts not to “transform Title VII into

a general civility code for the American workplace.” 63 Title VII accordingly

does not permit liability for de minimis workplace trifles. 64

_____________________

62

See, e.g., Morales-Vallellanes v. Potter, 605 F.3d 27, 35 (1st Cir. 2010) (“materially

adverse change in the terms and conditions of employment”); Williams v. R.H. Donnelley,

Corp., 368 F.3d 123, 128 (2d Cir. 2004) (“materially adverse”); Storey v. Burns Int’l Sec.

Servs., 390 F.3d 760, 764 (3d Cir. 2004) (“serious and tangible enough” (internal quotation

marks and citation omitted)); James v. Booz-Allen & Hamilton, Inc., 368 F.3d 371, 376 (4th

Cir. 2004) (“significant detrimental effect” (internal quotation marks and citation

omitted)); McCoy, 492 F.3d at 559 (5th Cir. 2007) (“ultimate employment decisions”);

Threat, 6 F.4th at 679 (6th Cir. 2021) (excluding “de minimis” employment actions);

Herrnreiter v. Chicago Hous. Auth., 315 F.3d 742, 744 (7th Cir. 2002) (“materially adverse

employment action” (internal quotation marks omitted)); Cooney v. Union Pac. R.R. Co.,

258 F.3d 731, 734 (8th Cir. 2001) (“tangible change in working conditions that produces a

material employment disadvantage” (internal quotation marks and citation omitted));

Chuang v. Univ. of California Davis, Bd. of Trs., 225 F.3d 1115, 1126 (9th Cir. 2000)

(“materially affect the compensation, terms, conditions, or privileges of . . .

employment”); Hiatt v. Colo. Seminary, 858 F.3d 1307, 1316 (10th Cir. 2017) (“significant

change in employment status” (internal quotation marks and citation omitted)); Davis v.

Town of Lake Park, 245 F.3d 1232, 1239 (11th Cir. 2001) (“serious and material,” “tangible

adverse effect on the plaintiff’s employment” (emphasis omitted)); Brown v. Brody, 199

F.3d 446, 457 (D.C. Cir. 1999) (“objectively tangible harm”), overruled by Chambers v.

District of Columbia, 35 F.4th 870, 882 (D.C. Cir. 2021) (en banc).

63

Oncale, 523 U.S. at 80.

64

Threat, 6 F.4th at 678 (“[O]ur approach honors a de minimis exception that

forms the backdrop of all laws.”); Chambers, 35 F.4th at 883 (Walker, J., concurring in the

16

Case: 21-10133 Document: 00516863689 Page: 17 Date Filed: 08/18/2023

No. 21-10133

But whatever standard we might apply, it is eminently clear that the

Officers’ allegations would satisfy it at the pleading stage. In light of the

allegation that full weekends off is a preferred shift for both men and women,

it is plausible that requiring female officers 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

far more than “de minimis.” 65 So, too, is denying seniority privileges to

female officers while allowing male officers to exercise theirs. We thus leave

for another day the precise level of minimum workplace harm a plaintiff must

_____________________

judgment in part and dissenting in part) (“[N]othing indicates that Congress intended to

displace the de minimis principle in Title VII’s antidiscrimination provision.”); id. at 890

(Katsas, J., dissenting) (“As the Supreme Court has explained, the venerable maxim de

minimis non curat lex (‘the law cares not for trifles’) is part of the established background of

legal principles against which all enactments are adopted, and which all enactments (absent

contrary indication) are deemed to accept. Nothing in Title VII abrogates this background

principle.” (internal quotation marks and citation omitted)); Washington v. Ill. Dep’t of

Revenue, 420 F.3d 658, 660 (7th Cir. 2005) (“Courts have resisted the idea that federal law

regulates matters of attitude or other small affairs of daily life” in large part “because of

the maxim de minimis non curat lex[.]”).

While the circuit courts vary in how they articulate their preferred materiality

standard, see supra note 62, all circuits agree that, at the very least, Title VII does not permit

liability for petty trivialities or insubstantial annoyances. Future cases in our circuit will

need to determine the floor that Title VII’s anti-discrimination provision sets for actionable

harm. But that question—whether “material” and “more than de minimis” are simply two

sides of the same coin, or whether there is more room between those terms—is a question

for another day. Cf. Groff, 143 S. Ct. at 2294 (“We hold that showing ‘more than

a de minimis cost,’ as that phrase is used in common parlance, does not suffice to establish

‘undue hardship’ under Title VII.”); Threat, 6 F.4th at 679 (“But de minimis means de

minimis, and shorthand characterizations of laws should not stray.”). Nothing in this

opinion or in our sister-circuit citations should be read to foreshadow our opinion on what

measure of materiality is required. And dicta on a question not answered here should not

be passed from opinion to opinion, lest the message be mangled as if in “the children’s

game of telephone.” Id. (internal quotation marks omitted).

65

See Groff, 143 S. Ct. at 2295 (noting that “de minimis” means “something that

is ‘very small or trifling’” (quoting Black’s Law Dictionary 388 (5th ed. 1979))).

17

Case: 21-10133 Document: 00516863689 Page: 18 Date Filed: 08/18/2023

No. 21-10133

allege on top of showing discrimination in one’s “terms, conditions, or

privileges of employment.” 66

IV

To adequately plead an adverse employment action, plaintiffs need

not allege discrimination with respect to an “ultimate employment

decision.” Instead, 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”—

just as the statute says. 67 The Officers here have done so.

For these reasons, we REVERSE the district court’s judgment and

REMAND for further proceedings consistent with this opinion. 68

_____________________

66

42 U.S.C. § 2000e-2(a)(1). Further counseling against our wading into this issue

is that the Supreme Court appears poised to address it, as the Court recently granted

certiorari in Muldrow v. City of St. Louis, 30 F.4th 680 (8th Cir. 2022), cert. granted in part,

143 S. Ct. 2686, 2023 WL 4278441 (U.S. June 30, 2023) (No. 22-193).

67

42 U.S.C. § 2000e-2(a)(1); Tex. Lab. Code § 21.051(1).

68

The parties did not separately discuss the Officers’ state-law claim and agree that

the state-law claim should be treated the same as the federal Title VII claim. For the sake

of clarity, because we vacate and remand the Title VII claim, we REVERSE and

REMAND the state-law claim for further proceedings as well.

18

Case: 21-10133 Document: 00516863689 Page: 19 Date Filed: 08/18/2023

No. 21-10133

James C. Ho, Circuit Judge, concurring:

Our longstanding circuit precedent limits employment discrimination

claims under Title VII of the Civil Rights Act of 1964 to only those employer

actions that constitute “ultimate employment decisions,” such as “hiring,

granting leave, discharging, promoting, and compensating.” Dollis v. Rubin,

77 F.3d 777, 781–82 (5th Cir. 1995).

But that’s not what the text says. Title VII sweeps more broadly. It

prohibits discrimination not only in hiring, firing, and compensation, but also

with respect to the “terms, conditions, or privileges of employment.” 42

U.S.C. § 2000e–2(a)(1).

So the majority today overturns circuit precedent and restores the

text. I concur.

I write separately to respond to our distinguished colleagues who

concur only in the judgment. Our colleagues criticize the majority for

overturning precedent while “refus[ing]” to answer certain questions. Post,

at 26. They say that “leaving [those unanswered questions] for another day”

may even offend “[o]rdinary concepts of due process.” Id. at 26–27.

***

When longstanding precedent conflicts with plain text, we have to

decide what’s more important: Restoring the text? Or resolving every

unanswered question that restoring the text might present, before we do so?

It’s a choice we must make, because overturning atextual precedent

can raise a number of unanswered questions. But the existence of

unanswered questions should not stop us from restoring text and overturning

precedent. Rather, we should “decide every case faithful to the text . . . to

the maximum extent permitted by a faithful reading of binding precedent.”

19

Case: 21-10133 Document: 00516863689 Page: 20 Date Filed: 08/18/2023

No. 21-10133

Texas v. Rettig, 993 F.3d 408, 409 (5th Cir. 2021) (Ho, J., dissenting from

denial of rehearing en banc).

Justice Thomas has written that, “[w]hen faced with a demonstrably

erroneous precedent, my rule is simple: We should not follow it.” Gamble

v. United States, 139 S. Ct. 1960, 1984 (2019) (Thomas, J., concurring). And

that’s why we granted rehearing en banc in this case—because only the en

banc court has the authority to overturn erroneous circuit precedent.

I.

This debate reminds me of the dueling opinions over unanswered

questions in Fulton v. City of Philadelphia, 141 S. Ct. 1868 (2021). Members

of the Court there sharply disagreed over whether to restore the text of the

Free Exercise Clause of the First Amendment by overturning Employment

Division v. Smith, 494 U.S. 872 (1990).

Justice Barrett acknowledged that the arguments against Smith are

“compelling.” 141 S. Ct. at 1882 (Barrett, J., concurring). “As a matter of

text and structure, it is difficult to see why the Free Exercise Clause—lone

among the First Amendment freedoms—offers nothing more than

protection from discrimination.” Id.

But she declined to overturn Smith because she was concerned about

the unanswered questions that overturning Smith would raise. “Yet what

should replace Smith?” Id. “There would be a number of issues to work

through if Smith were overruled.” Id. at 1883. She set forth a series of

questions that the Court would inevitably have to “wrestle with” in future

cases if Smith were overturned. Id. (collecting unanswered questions).

Justice Gorsuch responded to Justice Barrett’s concerns about

unanswered questions. He noted that “not a single Justice has lifted a pen to

20

Case: 21-10133 Document: 00516863689 Page: 21 Date Filed: 08/18/2023

No. 21-10133

defend the decision” in Smith. Id. at 1931 (Gorsuch, J., concurring in the

judgment). “So what are we waiting for?” Id.

“We hardly need to ‘wrestle’ today with every conceivable question

that might follow from recognizing Smith was wrong.” Id. “To be sure, any

time this Court turns from misguided precedent back toward the

Constitution’s original public meaning, challenging questions may arise

across a large field of cases and controversies. But that’s no excuse for

refusing to apply the original public meaning in the dispute actually before

us.” Id. “Rather than adhere to Smith until we settle on some ‘grand unified

theory’ of the Free Exercise Clause for all future cases until the end of time,

the Court should overrule it now, set us back on the correct course, and

address each case as it comes.” Id. (citation omitted).

II.

Fidelity to text will sometimes require overturning atextual precedent.

And overturning atextual precedent will sometimes result in unanswered

questions that courts may need to address in future cases. But that’s what

courts are for. It’s not a reason to ignore text.

Just look at how the Supreme Court ruled in its two most recent

decisions involving the 1964 Civil Rights Act, decided on the same day at the

close of its most recent Term.

In Groff v. DeJoy, _ U.S. _ (2023), and Students for Fair Admissions,

Inc. v. President and Fellows of Harvard College, _ U.S. _ (2023), the Court

favored text over longstanding atextual precedent. And it did so knowing full

well that both decisions leave unanswered a whole range of questions that

courts will now have to confront in future cases.

21

Case: 21-10133 Document: 00516863689 Page: 22 Date Filed: 08/18/2023

No. 21-10133

A.

Let’s start with Groff. Title VII not only forbids employers from

discriminating against people of faith—it affirmatively requires employers to

accommodate their religious practices, unless doing so would impose an

“undue hardship on the conduct of the employer’s business.” 42 U.S.C. §

2000e(j). Decades ago, however, the Court concluded that requiring an

employer to “bear more than a de minimis cost . . . is an undue hardship.”

Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 84 (1977).

In Groff, the Court did away with the “de minimis” gloss in

Hardison—much like how our circuit today does away with our “ultimate

employment decision” gloss in Dollis.

Notably, the Court abandoned the “de minimis” standard even

though that will inevitably lead to a number of unanswered questions. After

all, if we’re no longer following the de minimis standard, then courts will now

have to decide how much hardship is “undue” for the employer’s business—

a question that will have to be resolved in virtually every case imaginable

involving a request for a religious accommodation. See, e.g., George

Weykamp, Religious Objections Over Pronouns Test High Court’s New Stance,

Bloomberg, Aug. 9, 2023.

The Court was well aware of this and restored the text anyway. In

fact, it acknowledged that unanswered questions will be presented, not only

in other cases in the wake of Groff, but in Groff itself: “Having clarified the

Title VII undue-hardship standard, we think it appropriate to leave the

context-specific application of that clarified standard to the lower courts in

the first instance. . . . [W]e think it appropriate to leave it to the lower courts

to apply our clarified context-specific standard, and to decide whether any

further factual development is needed.” _ U.S. at _.

22

Case: 21-10133 Document: 00516863689 Page: 23 Date Filed: 08/18/2023

No. 21-10133

Justice Gorsuch summed it up this way during oral argument: It

would be “a good day’s work” “simply to say” that “this de minimis

language” is “not the law,” “put a period at the end of it,” and leave future

questions for future cases. Tr. of Oral Arg. 64–65.

B.

The same is true in Students for Fair Admissions. Title VI states that

“[n]o person in the United States shall, on the ground of race, color, or

national origin, be excluded from participation in, be denied the benefits of,

or be subjected to discrimination under any program or activity receiving

Federal financial assistance.” 42 U.S.C. § 2000d. For decades, however,

the Supreme Court has allowed colleges and universities to consider race in

deciding which students to admit—and which students to deny. See, e.g.,

Grutter v. Bollinger, 539 U.S. 306 (2003).

In Students for Fair Admissions, the Court restored the plain text of

Title VI and prohibited colleges and universities from discriminating on the

basis of race.

Once again, the Court restored text despite the heated debates over

alternative admissions policies that would predicably erupt as a result.

For example, university leaders have already suggested that they may

use admissions essays to achieve the preferred racial outcomes they

previously attained through race-conscious admissions. See, e.g., Steven

McGuire, Can Harvard Use Application Essays to Discriminate by Race?,

Wall St. J., Aug. 11, 2023. The validity of such efforts will require courts

to answer a number of legal questions. To take just one: University leaders

justify these efforts by claiming an interest in diversity. So courts will have

to decide whether that interest is sincere or pretextual, in light of other

dynamics such as ideological conformity on campus, homogeneity in faculty

and administration hiring, and student disruptions of disfavored viewpoints.

23

Case: 21-10133 Document: 00516863689 Page: 24 Date Filed: 08/18/2023

No. 21-10133

Courts will have to decide whether schools can justify their DEI efforts if

their vision of diversity doesn’t include diverse viewpoints, if equity doesn’t

encompass equality for people of faith, and if inclusion involves excluding

politically unpopular beliefs. For schools that tolerate (if not practice)

ideological discrimination, courts will have to determine whether diversity is

nothing more than a pretext for race.

Yet none of this stopped the Court from restoring the plain text of

Title VI in Students for Fair Admissions.

And so too here. Our beloved colleagues are no doubt correct that our

majority opinion today will lead to unanswered questions and future cases.

But that is no reason to favor atextual precedent over text, just as it wasn’t in

Groff and in Students for Fair Admissions.

III.

Congress enacted the Civil Rights Act of 1964 to protect every

American against every form of prohibited discrimination—not just certain

favored classes against certain disfavored forms of discrimination. For

decades, however, the judiciary has distorted the Act in various ways to

protect some Americans, while excluding others.

Today’s decision is just the latest in a series of recent rulings designed

to restore the full meaning of the Civil Rights Act for the benefit of all

Americans. Groff restores Title VII for people of faith. Students for Fair

Admissions restores Title VI for Asian American students. And our decision

today will help restore federal civil rights protections for anyone harmed by

divisive workplace policies that allocate professional opportunities to

employees based on their sex or skin color, under the guise of furthering

diversity, equity, and inclusion.

24

Case: 21-10133 Document: 00516863689 Page: 25 Date Filed: 08/18/2023

No. 21-10133

As the Civil Rights Division of the Justice Department noted during

en banc oral argument in this case, if “a law firm is having a lunch to do CLEs

and you have a policy that says we’re only going to invite women but not men

to this CLE lunch, that’s of course actionable, and that’s of course a term,

condition, or privilege of employment” under Title VII. Audio of Oral Arg.

23:00–23:29. The Justice Department agreed that “a lot of law firms do

that.” Id. at 25:35. It also noted that “work assignments . . . happening on

the basis of race” are likewise actionable under Title VII. Id. at 27:12–20.

The Justice Department is not alone in expressing these concerns.

See, e.g., Andrea R. Lucas, With Supreme Court affirmative action ruling, it’s

time for companies to take a hard look at their corporate diversity programs,

Reuters, June 29, 2023 (“Title VII bars . . . a host of increasingly popular

race-conscious corporate initiatives: from providing race-restricted access to

mentoring, sponsorship, or training programs; to selecting interviewees

partially due to diverse candidate slate policies; to tying executive or

employee compensation to the company achieving certain demographic

targets; to offering race-restricted diversity internship programs or

accelerated interview processes, sometimes paired with euphemistic

diversity ‘scholarships’ that effectively provide more compensation for

‘diverse’ summer interns.”); U.S. Senator Tom Cotton, Cotton Warns Top

Law Firms About Race-Based Hiring Practices, July 17, 2023.

***

“Equality of opportunity is fundamental to who we are, and to who

we aspire to be, as a nation.” Lindsley v. TRT Holdings, Inc., 984 F.3d 460,

464 (5th Cir. 2021). Today’s decision will help bring us closer to achieving

those aspirations. I concur.

25

Case: 21-10133 Document: 00516863689 Page: 26 Date Filed: 08/18/2023

No. 21-10133

Edith H. Jones, Circuit Judge, joined by Smith and Oldham, Circuit

Judges, concurring in the judgment only:

I concur in the result reached by the majority, a remand for further

development in this decidedly unusual case. After all, the plaintiffs’ pleading

is that the Dallas County Sheriff’s Department changed the weekend shift

pattern from seniority-based to specifically gender-based, to the alleged

detriment of the female staff. Rarely in recent years have we seen such an

admission. In my view, our governing precedents sufficed to countenance

remand and further development. See Thompson v. City of Waco, 764 F.3d

500, 505-06 (5th Cir. 2014) (any employment decision causing such

“significant and material” harm that it makes the employee’s job

“objectively worse” is ultimate because it is the “equivalent of a

demotion”); see also Sharp v. City of Houston, 164 F.3d 923, 933 (5th Cir.

1999). But this does not satisfy the present-minded majority, who decry and

apparently annul our “atextual” thirty-year string of precedents. 69 The

question left hanging by the majority is what kind of “term or condition” of

employment creates an actionable Title VII discrimination claim. The

majority refuses to say, leaving “for another day the precise level of minimum

workplace harm a plaintiff must allege on top of showing discrimination in

one’s ‘terms, conditions, or privileges of employment.’”

The majority’s incomplete ruling fails for two reasons. First, it leaves

the bench, bar, and employers and employees with no clue as to what this

court will finally declare to be the minimum standard for Title VII

liability. The majority holding amounts to this: we hold that speeding is

illegal, but we will not say now what speed is illegal under what

_____________________

69

As the majority catalogues in its Footnote 62, nearly every circuit has similar,

long-standing precedent imposing minimum standards for liability under Title VII.

26

Case: 21-10133 Document: 00516863689 Page: 27 Date Filed: 08/18/2023

No. 21-10133

circumstances. Ordinary concepts of due process should have required

notice to the public regarding this vital and pervasive workplace law. The

omission is doubly troubling, because even as this court dithers, the Supreme

Court is poised to resolve the circuit split in a case not dissimilar from this

one. See Muldrow v. City of St. Louis Missouri, No. 22-193, 2023 WL 4278441,

at *1 (U.S. June 30, 2023) (cert. granted to decide if Title VII prohibits

“discrimination in transfer decisions absent a separate court determination

that the transfer decision caused a significant disadvantage”). 70 If panels of

this court begin to populate the new “textual” Title VII holding with caselaw

about materiality or de minimis discrimination, they are all subject to revision

no later than June 2024, and this circuit will be back in a position of

uncertainty, pending even further developments. This is not judicial

prudence, it is judicial abdication. Prudence would have counselled that we

continue to enforce our governing precedents until they are refined by the

Supreme Court.

Second, I disagree with the majority’s claim to a “textual” reading of

Title VII that purports to eschew materiality as a necessary basis of employer

liability. Since what we write today is eminently and imminently contingent,

this will be brief. In the most recent case to thoroughly explore the statutory

basis for Title VII employment discrimination cases, Judge Katsas’s dissent

offered a wholly convincing “textualist” explanation as to why actionable

_____________________

70

In that case, the plaintiff alleged that she had been transferred from one division

of the St. Louis Police Department to another. The court declined to find a Title VII

violation, reasoning that her new position “did not result in a diminution to her title, salary,

or benefits” or result in “a significant change in working conditions or responsibilities.”

Muldrow v. City of St. Louis Missouri, 30 F.4th 680, 688-89 (8th Cir. 2022). Because “a

mere preference for one position over the other” was insufficient to meet the circuit’s

“adverse employment action” standard, the Eighth Circuit affirmed a grant of summary

judgment to the city. Id. at 689. To decide Muldrow, therefore, the Supreme Court must

say something about what kind of injury suffices to support a Title VII claim.

27

Case: 21-10133 Document: 00516863689 Page: 28 Date Filed: 08/18/2023

No. 21-10133

discrimination must entail a “materially adverse” change in work conditions

when viewed “objectively” by a reasonable observer. Chambers v. D.C.,

35 F.4th 870, 886 (D.C. Cir. 2022) (Katsas, J., dissenting). 71 First,

Section 703(a)(1)’s use of the phrase “discriminate against” means that the

plaintiff must have suffered an injury of some kind. 72 Id. at 889-90. Second,

the law’s general background presumption against recovery for de minimis

injuries is not abrogated here. Id. at 890. Third, by the canon of ejusdem

generis, the types of discrimination specifically enumerated in Section 703—

“to fail or refuse to hire or to discharge any individual”—make clear that the

actions covered by Section 703’s more general clause—“or otherwise to

discriminate”—must constitute objectively material harm. Id.

Further support for Judge Katsas’s interpretation springs from the

fact that other claims actionable under Title VII, such as hostile work

environment, retaliation, and constructive discharge claims, all require

threshold standards connoting objective, material injury. A sexual

harassment claim is not actionable unless the misconduct is “severe or

pervasive enough to create an objectively hostile or abusive work

environment.” Harris v. Forklift Sys., Inc., 510 U.S. 17, 21, 114 S. Ct. 367, 370

(1993). “To show constructive discharge, an employee must offer evidence

that the employer made the employee’s working conditions so intolerable

that a reasonable employee would feel compelled to resign.” Barrow v. New

Orleans S.S. Ass’n, 10 F.3d 292, 297 (5th Cir. 1994). Most recently, the

Supreme Court embraced an interpretation of Title VII retaliation in

_____________________

71

This court’s majority, curiously, fails to mention the erudite clash of views

espoused on these questions in the D.C. Circuit’s debate.

72

See also Bostock v. Clayton Cnty., Georgia, 140 S. Ct. 1731, 1740 (2020) (“To

discriminate against a person . . . would seem to mean treating that individual worse than

others who are similarly situated.”) (quotation marks omitted).

28

Case: 21-10133 Document: 00516863689 Page: 29 Date Filed: 08/18/2023

No. 21-10133

Section 704(a), 42 U.S.C. § 2000e-3(a), that includes conduct outside the

workplace. Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 63,

126 S. Ct. 2405, 2412 (2006). But at the same time, the Court emphasized

that an objective standard is required because the term “discriminate

against” in Section 704(a) protects “an individual, not from all retaliation,

but from retaliation that produces an injury or harm.” Id. at 67,

2414. Further, “the provision’s standard for judging harm must be

objective.” Id. at 68, 2415. The Supreme Court’s interpretation of

“discriminate against” in this companion antiretaliation provision must,

under the presumption of consistent usage 73 apply to the same language in

Section 703(a)(1). Chambers, 35 F.4th at 891–92. This point of textualism

the majority also overlooked.

Finally, as the majority recognizes, the Supreme Court emphasizes

that Title VII does not effectuate a workplace “general civility code.” Oncale

v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81, 118 S. Ct. 998, 1002

(1998). Yet as written, the majority opinion has no baseline for

“discrimination” based on terms or conditions of employment. 74 Take one

example. In a hypothetical workplace, only one supervisor is permitted to

work remotely from out-of-state because of a spouse’s relocation. If that

supervisor is male, or white, or Christian, does this mean that any female,

black, or Muslim supervisor is “discriminated against” if denied the same

_____________________

73

See ANTONIN SCALIA & BRYAN A. GARNER, READING LAW: THE

INTERPRETATION OF LEGAL TEXTS 171–73 (2012).

74

To be sure, the majority dance around holding that de minimis injuries are not

actionable, and it refuses to state whether a materiality standard may be invoked in

subsequent cases. Technically, of course, neither adumbration to Section 703(a)(1) is

“textual” in the majority’s literalistic sense. Moreover, as Judge Katsas explained, even

while the majority’s decision (in Chambers as in this case) claims to be fact-specific, and

“reserves the possibility that Title VII may not extend to de minimis injuries,” “the

decision cannot be fairly confined….” 35 F.4th at 887.

29

Case: 21-10133 Document: 00516863689 Page: 30 Date Filed: 08/18/2023

No. 21-10133

remote work opportunity? Another example: employer allows extended

lunch period when a male employee says he’s going to barbershop, but denies

the request for a female. Are these cases actionable next week under the

majority’s reasoning?

Let us see what the Supreme Court does with Muldrow before we

render any workplace “difference” an equivalent, for filing suit at least,

of “discrimination.”

I concur in the judgment only.

30