Appeals court should revisit high bar for bias claims, panel says

A guard looks on near the wall of a prison unit in Huntsville, Texas January 22, 2014. REUTERS/Richard Carson
  • Jail guards' sex-based schedules not unlawful, judges find
  • 5th Circuit has long had higher bar to prove workplace bias

(Reuters) - A U.S. appeals court panel on Wednesday reluctantly ruled that a sex-based scheduling system for jail guards in Dallas County, Texas, did not amount to unlawful sex bias, while imploring the full court to reconsider its standard for proving workplace discrimination.

A unanimous 5th U.S. Circuit Court of Appeals panel said the county's policy that only allowed male guards to have entire weekends off did not involve an "ultimate employment decision," such as being fired or demoted. For decades, the 5th Circuit has said only those kinds of actions can form the basis of discrimination claims.

Circuit Judge Carl Stewart wrote that the 5th Circuit's high bar to prove that employment actions violate Title VII of the Civil Rights Act of 1964 clashes with other appeals courts that only require workers to show actions affected the terms and conditions of their employment.

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Stewart, an appointee of former Democratic President Bill Clinton, said that because Dallas County's policy was discriminatory on its face, the case was an "ideal vehicle" for the full court to reconsider its past decisions and "achieve fidelity to the text of Title VII." Only a full, or en banc, appeals court can overturn its existing precedent.

The nine female correctional officers that sued Dallas County were backed by the U.S. Department of Justice, which filed an amicus brief last year. DOJ urged the 5th Circuit to adopt the "terms and conditions" test applied by other courts.

The county has maintained that its scheduling practices were not an "adverse employment action" for which an employer can be held liable under Title VII. The plaintiffs have argued that their schedules worsened their working conditions.

Stewart in Wednesday's ruling said the standard pushed by the plaintiff and DOJ was more faithful to Title VII, which prohibits discrimination against workers with respect to "compensation, terms, conditions, or privileges of employment."

The panel included Circuit Judges Patrick Higginbotham and Cory Wilson, who are appointees of Republican presidents.

The decision affirmed a 2021 ruling by a federal judge in Dallas who had dismissed the lawsuit.

A lawyer for the guards did not immediately respond to a request for comment. Neither did the Dallas County District Attorney's Office.

The case is Hamilton v. Dallas County, 5th U.S. Circuit Court of Appeals, No. 21-10133.

For Hamilton: Madeline Meth of Georgetown Law Appellate Courts Immersion Clinic; and Jay Ellwanger of Ellwanger Law

For Dallas County: Assistant District Attorney Jason Schuette

For the United States: Anna Baldwin of the U.S. Department of Justice

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Dan Wiessner (@danwiessner) reports on labor and employment and immigration law, including litigation and policy making. He can be reached at