The Dallas County Jail routinely assigned the female detention officers to work the weekend shifts. The supervisors claimed it was safer for the male detention officers to be off on the weekends. Not surprisingly, the female officers did not appreciate this policy. They filed a complaint with the EEOC alleging gender bias. In the resulting lawsuit the district court granted Dallas County’s motion to dismiss. The caselaw clearly says discriminatory acts are limited to “ultimate adverse employment actions.” Ultimate adverse employment actions generally include hiring, granting leave, discharging, promoting, or compensating an employee. In other words, money needs to be involved.

On appeal the Fifth Circuit agreed that the jail’s policy expressly discriminates based on gender. But, under long-standing caselaw, discrimination in assigning shifts is not an ultimate adverse employment action. The court was sympathetic, but simply said they were limited by precedent. The court noted that some, not all, circuits define ultimate adverse employment action broadly enough to include shift assignments. The court suggested the female detention officers seek an en banc hearing to consider changing Fifth Circuit precedent.

See the decision in Hamilton v. Dallas County, 42 4th 550 (2022) here.