A group of female jailers challenging as discriminatory a Dallas County policy that only allowed male officers to have full weekends off will have another chance to argue their case before the Fifth Circuit, with the full court agreeing this week to rehear the dispute.
On Thursday, the court tentatively set en banc oral arguments in the case for Jan. 28. The brief order the court issued on Wednesday, withdrawing its Aug. 3 opinion that affirmed dismissal, noted that a member of the court requested a poll on the petition for rehearing en banc “and a majority of the circuit judges in regular active service and not disqualified” voted in favor of the move.
The nine female jailers, led by Felesia Hamilton, filed suit after a sergeant told them the new policy implemented in April 2019 was based on gender and that it would “be safer for the male officers to be off during the weekends as opposed to during the week,” according to court documents.
On Aug. 16 the female jailers filed a petition for rehearing en banc, arguing that the ramifications of the adverse-employment doctrine that the Fifth Circuit follows could lead to other absurd outcomes like the one the female jailers are challenging here.
“Because in this Circuit discrimination is permissible so long as it does not involve an ultimate employment decision, an employer could, without legal consequence, require all of its Black employees to work under white supervisors, women to stand in every meeting while male counterparts sit comfortably around a table, people with disabilities to work in a ‘disabled-persons’ annex, and older employees to write monthly reports about their retirement plans,” they argued.
“Decades after Title VII, the [Americans with Disabilities Act], and the [Age Discrimination in Employment Act] were enacted to eliminate the workplace indignities of Jim Crow and sex-based stereotypes, to bring people with disabilities into the American mainstream, and to ensure that older Americans are judged on their merit, that cannot be right.”
The trial court granted the county’s dismissal bid after holding the female jailers hadn’t suffered an adverse employment action. In its August opinion upholding that ruling, the Fifth Circuit panel wrote that its jurisprudence on the issue is that only “ultimate employment decisions,” such as hiring, firing, promoting, compensating and granting leave, qualify as possible adverse employment actions.
The panel lamented that it was bound by precedent and wrote that the case would make “an ideal vehicle” for en banc review of the issue.
“As mentioned, this court rarely encounters direct evidence cases because employers seldom admit to a discriminatory motive as the sergeant did here,” the panel wrote.
“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 to the terms or conditions of those women’s employment,” the panel wrote. “And the benefits that come with seniority, here, the ability to request one’s preferred days off, should amount to a privilege of employment. Yet we are bound by this circuit’s precedent, which requires a Title VII plaintiff to establish a prima facie case of discrimination by showing, inter alia, that she ‘suffered some adverse employment action by the employer.’”
In a Sept. 15 response urging the court not to rehear the case en banc, Dallas County argued the “parade of horribles” the female jailers’ envision taking place should the doctrine be left undisturbed is “hyperbole” and that the more likely outcome of jettisoning the doctrine would be “an explosion of Title VII suits over trivialities.”
“The ultimate employment decision doctrine provides the sort of meaningful guard rails to which Justice [Samuel] Alito alluded in his concurrence in Burlington,” Dallas County argued. “Appellants, on the other hand, offer no limiting principle as to what differences in treatment would be so trivial that the claim would not burden the federal courts.”
The jailers are represented by Jay E. Ellwanger of Ellwanger Law and Madeline Meth and Brian Wolfman of the Georgetown Law Appellate Courts Immersion Clinic.
Dallas County and the sheriff’s department are represented by Dallas County Assistant District Attorney Jason G. Schuette.
Judges Carl E. Stewart, Patrick E. Higginbotham and Cory T. Wilson sat on the panel that originally decided the case.
The cause number is 21-10133.