Fifth Circuit Expands Title VII Exposure for Employers

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On August 18, 2023, in Hamilton v. Dallas County, the US Court of Appeals for the Fifth Circuit, sitting en banc, expanded the circumstances under which an employer can be held liable for disparate treatment under Title VII of the Civil Rights Act (“Title VII”). Prior to Hamilton, employers could only be held liable for disparate treatment under Title VII in the commission of hiring, granting leave, discharging, promoting and compensating an employee – so-called “Ultimate Employment Decisions.” Now, the Fifth Circuit held, a plaintiff can plausibly allege disparate treatment under Title VII if he or she pleads discrimination in an Ultimate Employment Decision, or the terms, conditions, or privileges of employment.