I previously wrote about the first decision in Hamilton v. Dallas County here. That decision held that forcing female detention officers to work on weekends was not discrimination based on sex. The Fifth Circuit panel noted rightly that prior caselaw required an “ultimate employment action” to constitute discrimination. Prior caselaw defined ultimate employment action as hiring, firing, granting leave, etc. So, based on prior caselaw, being forced to work particular shifts was considered not serious enough to amount to discrimination.

But, the Hamilton plaintiff then asked the court to reconsider. Courts rarely grant a motion to reconsider. But, in a rare en banc decision, the Fifth Circuit pointed to the plain language of Title VII which imposes no requirement of an “ultimate employment action.” Title VII actually speaks to anything that affects “terms and conditions” of the job. The en banc decision reversed the dismissal. The en banc court noted that no other court of appeals applied an “ultimate employment action” requirement.

So, yes, requiring only women to work on weekends constitutes discrimination under Title VII. See the decision in Hamilton v. Dallas County here, No. 21-10133 (5th Cir. Aug. 18, 2023) (en banc).