Colin Walsh
Texas Employer Lawyer Colin Walsh

On August 18, 2023, the Fifth Circuit issued an en banc opinion in Hamilton v. Dallas County, No. 21-10133 that overturned decades old judge-made law limiting actionable claims under Title VII.  Let’s take a look.

What is Hamilton about?  Hamilton involves how the Dallas County Sheriff’s office schedules time off for male and female detentions service officers.  Specifically, according to the county’s policy, detention service officers are allowed two days off per week.  However, female officers may not take those two days over the weekend, while male officers can.  In other words, female officers are not allowed to ever have a weekend off.  However, pay was not affected and the female officers still received two days off just like the men each week.  Nine female officers sued.  Importantly, the county admitted that the scheduling policy was sex-based.  The district court granted summary judgment in favor of the county based on existing precedent.  The three-judge Fifth Circuit panel affirmed summary judgment on the same basis.  The case was then taken up by the court en banc.      

So, what is an en banc opinion and how is it different than other opinions?  Good question.  Normally, appellate opinions are issued by three-judge panels.  These panels are not permitted to overturn circuit precedent or other panel decisions.  In Hamilton, the original three-judge noted this fact when they ruled in favor of Dallas County, saying that precedent bound them to find that the adverse action alleged was not an “ultimate employment decision” and therefore, under Circuit precedent not actionable under Title VII’s discrimination provisions.  The three-judge panel’s opinion then actually urged the full Fifth Circuit to hear the case en banc.  What that means is that the three-judge panel asked for all active judges on the court to take a look at the case.  The reason the panel did that is because the court, sitting en banc, can overturn precedent and reverse prior panel decisions.  The Fifth Circuit agreed to hear the case en banc and that is how we got the opinion on August 18, 2023. 

Ah, you say, well, what was the law before Hamilton?  For almost thirty years, in the Fifth Circuit, a Title VII discrimination claim was only actionable is it was considered an “ultimate employment decision.”  Generally, ultimate employment decisions only included actions that affected pay or benefits, such as hiring, granting leave, termination, promotion, or compensation.  If it wasn’t one of those types of actions, then a plaintiff had no case unless the plaintiff could show a hostile environment based on a protected characteristic that included severe or pervasive conduct, which is a whole other can of worms I won’t get into here.  As the Fifth Circuit points out in Hamilton, the requirement of an ultimate employment decision leaves a lot of unactionable discrimination for employers to engage in based on a protected characteristic.    

And what did Hamilton change?  Hamilton completely jettisons the “ultimate employment decision” requirement as atextual and against the policies of Title VII.  The Fifth Circuit expressly rejects a requirement that an adverse action have an economic effect on a plaintiff at the time or even that the discrimination lead to an economic effect on the plaintiff.  Instead, the Fifth Circuit hews to the text of the statute and states, “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.’”  That means things like shift changes, transfers, and many other discriminatory actions that were previously not actionable may now be asserted under Title VII.  To be clear, this does not mean that there is no minimum level of actionable harm.  The Fifth Circuit explicitly says de minimis harms are not actionable.  However, the Court does not state exactly what constitutes de minimis harm and expressly reserves that determination for future cases.

Finally, the decision brings the Fifth Circuit in line with the Sixth Circuit, which reached the same conclusion in the race discrimination case, Threat v. City of Cleveland, 6 F. 4th 672(6th Cir. 2021).

If you believe you have been discriminated against based on a protected characteristic, you should consider consulting an attorney to discuss potential options.  The attorneys at Wiley Walsh, P.C. have extensive experience representing individuals with claims under Title VII.  You can book a consultation at our website or by calling 512-271-5527.

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Photo of Colin W. Walsh Colin W. Walsh

We asked Colin W. Walsh, an experienced Trial Attorney in the Austin office of Wiley Walsh, P.C., to impart his candid answers to a range of questions.   After reading, you will be more more informed on the well-respected reputation that Mr. Walsh

We asked Colin W. Walsh, an experienced Trial Attorney in the Austin office of Wiley Walsh, P.C., to impart his candid answers to a range of questions.   After reading, you will be more more informed on the well-respected reputation that Mr. Walsh carries.

1. What do you like most about being an employment lawyer?

I enjoy getting tangible results for my clients and being involved in an area of law that affects everybody every day.

2. What is the most important issue to you of being an advocate?

One of the most important issues to me as an advocate is to not only zealously represent my clients, but also the law.

3. What kind of clients do you like best?

I like the clients that I am able to help who were not able to find help elsewhere.  On a couple of occasions now, a client has told me that my firm is the first one that has listened to his or her issue and offered any kind of assistance.

4. What do you think is the most important part of a good case?

The client.  If the client is not invested, then the other side won’t take it seriously and neither will the jury.

5. What labor and employment issues do you think are currently trending?

The biggest employment discrimination issues I see right now are related to age, disability, and pregnancy discrimination.  For some reason, these types of discrimination seem to be acceptable to employers.  The other issues right now are minimum wage and overtime pay.

6. Who is your favorite Supreme Court Justice?

Justice William Brennan.

7. What would you say to HR of a company about how to treat employees?

It would be to listen to your employees.  Most employees are not looking to sue when he or she goes to Human Resources.  These employees are sincerely looking for help.  Nothing makes an employee seek legal counsel like when he or she complains about something and HR starts investigating the employee instead of the complaint.

8. Besides Rob Wiley, P.C., what is the most interesting job that you have had?

The most interesting job I’ve had is working as an extra in film and television.  I should have known that I was destined to be a lawyer at that point because two of my biggest gigs were the TV show “Boston Legal” and the film Charlie Wilson’s War.

9. What is your favorite food?

Meat pies.  I first discovered them when I studied abroad in undergrad.  I can’t believe these have not caught on in the U.S. because they are brilliant.

10. What’s the best part of living in Austin?

All of the outdoor festivals.  And the Longhorns.

Colin W. Walsh is a Trial Attorney in the Austin office of Wiley Walsh, P.C.  He graduated from The University of Texas at Austin with a bachelor’s degree in theatre in 2006.  Mr. Walsh then graduated from The University of Texas School of Law with honors in 2011.