Key Texas law to change soon!

Recently, we discussed a case from the U.S. 5th Circuit Court of Appeals where it ruled on how courts define an adverse employment action. Because of precedent, the court issued a pro-employer decision, but it urged all the judges on the appeal court to think about changing the precedent. The full court has agreed and will sit en banc (all judges participating) to decide if they will change the precedent (it’s almost certain that they will) and what it will be changed to. Whatever the “what“ turns out to be, it will be more pro-employee.

Let’s review

Dallas County runs a detention facility, and employees are assigned shifts based on their gender. Men are allowed to take full weekends off, but women aren’t. There’s no question that this is sex-based discrimination. But is it unlawful discrimination?

The appeals court—in disagreement with every other federal appeals court in the United States—said “no.” Why? According to the court, shift assignments aren’t adverse employment actions because they aren’t “big ticket” items that financially harm an employee, such as termination or denial of a promotion. And according to the 5th Circuit, only big ticket items deserve of protection from discrimination.

Now what?

Well, this depends on what the court decides to replace the current adverse employment action doctrine with. Whatever it is, it will be more favorable to employees (hard to imagine the current doctrine being any less favorable to them!).