For several decades employees that worked in the Fifth Circuit, which consists of Louisiana, Mississippi and Texas, were substantially limited in the discrimination claims they could pursue compared to other employees around the nation. The Fifth Circuit had required that an employee suffer a tangible employment action, which required an economic loss to pursue a discrimination claim. The court began this precedent in 1995. Dollis v. Rubin, 77 F.3d 777, 781-82 (5th Cir. 1995).
Last month the Fifth Circuit acknowledged in an en banc decision that its precedent was wrong as it did not consider discrimination claims that effected the terms, conditions or privileges of employment unless they also caused a monetary loss. Hamilton, et al. v. Dallas County, 2023 WL 5316716 (5th Cir. August 18, 2023). In recognizing its error it also acknowledged that it it had allowed employees to be discriminated against because of its improper precedent. For example, in one case a black employee had alleged black employees were required to work outside without access to water while white employees worked inside with air conditioning. The Fifth Circuit dismissed the black employee's case because he and other black employees had not suffered a monetary loss. Peterson v. Linear Controls, Inc., 757 F. App'x 370, 373 (5th Cir. 2020).
In Hamilton, the employees alleged that the employer had created a policy where male employees could schedule an entire weekend off, but female employees could not. While the Fifth Circuit found this kind of policy was a violation of Title VII, it did not set a new clear standard for employees and employers to understand whether Title VII provides a remedy in the Fifth Circuit. The primary reason the court declined to set a new standard is because the U.S. Supreme Court has recently granted review of a case to answer that question. Muldrow v. City of St. Louis, 30 F. 4th 680 (8th Cir. 2022). The Supreme Court should issue a decision setting a clear standard for the entire nation by June 2024.