Madison Diez (Southern University Law Center, Southern University Law Review) has posted Unshackling Precedent: The Fifth Circuits Evolution in Employment Discrimination Law and a Critical Analysis of the Bona Fide Occupational Qualification (Southern University Law Review, Volume 51) on SSRN. Here is the abstract:
The adverse employment acts prohibited by Title VII extend far beyond mere hiring and termination. Yet, for nearly 30 years, the Fifth Circuit Court of Appeals has limited adverse employment actions to only those “ultimate employment decisions.” The misinterpretation has consistently denied recourse to employees alleging discrimination under Title VII, notably, in cases involving unmistakable instances of sex based discrimination.
In August of 2023, the Fifth Circuit Court of Appeals decided the case of Hamilton v. Dallas County, in which it redefined its interpretation of Title VII, and overturned the “ultimate employment decisions” test. In doing so, the Fifth Circuit has joined other federal circuit courts in interpreting Title VII to encompass the terms, conditions, and privileges of employment. But one question remains: the precise level of harm one must allege to plead an adverse employment action under Title VII.
This article aims to propose a guideline for the Fifth Circuit in establishing the threshold of an adverse employment action necessary to support a successful claim for relief in cases of Title VII. Through this, the author underscores the significance of the Fifth Circuit’s decision for the future of Title VII litigation based on discrimination to the terms, conditions, and privileges of employment and provides a framework for the Fifth Circuit in analyzing such cases. This article will delve deeper into Title VII litigation, specifically related to the case of Hamilton v. Dallas County, and explore the potential defense to be raised by the adverse party, particularly the Bona Fide Occupational Qualification.
