On May 21, 2021, Katz, Marshall & Banks senior counsel Carolyn Wheeler filed an amicus curiae brief in the U.S. Court of Appeals for the Fifth Circuit on behalf of pro bono clients, the National Women’s Law Center, the American Civil Liberties Union, American Civil Liberties Union foundation of Texas, and 41 other civil rights and public interest organizations committed to preventing and addressing sex discrimination.
The case is Hamilton v. Dallas County, and was brought by women who work as Detention Service Officers (DSOs) at the Dallas County Jail. They challenged the County’s new scheduling policy that gave men in these positions the ability to take full weekends off but limited women to taking only weekdays or partial weekends off. When the women asked why they could no longer take full weekends off, their supervisor stated that it would be “unsafe for all the men to be off during the week” and “safer for the men to be off on the weekends.”
The women filed a sex discrimination suit challenging this facially discriminatory policy under Title VII of the Civil Rights Act of 1964 and the Texas Employment Discrimination Act. The district court acknowledged the women had plausibly alleged that the denial of weekends off made their jobs “objectively worse,” but dismissed their case anyway. The court held that the policy was not an “adverse employment action” because it had not affected the compensation, job duties, or prestige of the women’s employment, and so could not be challenged under Title VII.
The amicus brief argued that the Fifth Circuit should reverse and invalidate Dallas County’s scheduling policy for several reasons. First, it is facially discriminatory and a relic of the sex-based employer policies of the past the courts have long repudiated. Second, although the scheduling policy does not affect the women’s compensation, it makes their working conditions objectively worse, thereby stating a Title VII claim for discrimination in the “terms, conditions, or privileges” of employment, much as sexual harassment alters working conditions without causing economic harm. Finally, the scheduling policy, by interfering with women’s ability to control their schedules, is distinctly harmful to employees with caregiving obligations, which are frequently shouldered by women, and particularly women of color – like the Black women who brought this case.