Chase Hattaway featured in January 2025 Payroll, HRIS, Time & Attendance Excellence

In an exclusive interview, Hattaway discusses the implications of the Fifth Circuit’s Hamilton v. Dallas County ruling, which expands the scope of Title VII discrimination claims to include non-ultimate employment actions. He provides expert guidance on how HR leaders can navigate these changes, ensure compliance, and mitigate potential risks related to workplace policies and decisions.

Excerpts from the interview:

Q: Given the recent ruling in Hamilton v. Dallas County by the Fifth Circuit, how should human resources (HR) leaders approach potential discrimination claims related to non-ultimate employment actions?

Hattaway: In Hamilton, the defendant-employer admitted that it employed a sex-based policy that treated females differently than males but claimed that policy did not amount to an “ultimate employment decision,” and therefore, the employee-plaintiffs could not state a claim under Title VII. In rejecting the defendant-employer’s claim, the Fifth Circuit held that a former employee need only plead an “adverse employment action,” as opposed to an “ultimate employment decision,” to plead a disparate-treatment claim under Title VII.

At the same time, however, the court also recognized that Title VII liability does not arise for “de minimis workplace trifles.” Thus, the court changed the standard for what must be pleaded to state a Title VII claim without providing guidance, much less bright-line rules, as to what is and is not actionable under Title VII. As one of the dissenting opinions noted, this decision was akin to “hold[ing] that speeding is illegal,” but failing to say “what speed is illegal under what circumstances.”

Ultimately, the Fifth Circuit’s decision opens the door for Title VII claims involving more minor employment decisions. Consequently, employers should be cognizant of employment decisions that treat employees differently based on their race, gender, etc.

Q: What steps can employers take to assess and mitigate risks under the expanded Title VII standards?

Hattaway: The Hamilton decision is a useful example of why employers should regularly review their policies to ensure that they are up to date with the legal developments. Indeed, prior to the Hamilton decision, employees could not pursue a Title VII claim against employers who treated females differently than males on issues that did not amount to an ultimate employment decision. After Hamilton, however, these same policies could subject employers to liability. Thus, employers would be wise to regularly review their policies and, if necessary, issue relevant updates.

Q: How does the Hamilton v. Dallas County decision impact workplace policies that have not traditionally been challenged?

Hattaway: Some policies that were believed to be lawful are, in fact, not lawful. If an employer has a policy that is in conflict with the Hamilton decision, the employer should take steps as soon as possible to update the policy.

Q: What steps can HR take to align their policies with the new Title VII interpretation?

Hattaway: Employers should closely scrutinize policies to ensure that they do not treat employees differently based on employees’ race, gender, etc. While employers may have been able to avoid liability under Title VII if the policy did not amount to an ultimate employment decision, the Hamilton decision makes this strategy much more difficult. Consequently, employers would be well advised to update policies to avoid this issue altogether.

Q: Could the Hamilton ruling set a precedent beyond the Fifth Circuit if the Supreme Court takes a similar stance in Muldrow v. City of St. Louis? If so, how?

Hattaway: In Muldrow, the United States Supreme Court held that an employee challenging a forced job transfer must show that the transfer caused some harm with respect to the terms or conditions of their employment. Importantly, however, the court noted that this harm need not be significant. In so doing, the Supreme Court rejected the approach previously taken by many federal courts that had required showing that the harm was significant. Unlike the Hamilton decision, which only applied to employers in Texas, Louisiana and Mississippi, Muldrow was decided by the United States Supreme Court and, therefore, applies to employers throughout the country.

Q: Should HR leaders in other areas start preparing for similar claims?

Hattaway: HR leaders should regularly review their policies to ensure policies are up to date with recent legal developments. In light of these decisions, employers should also try to limit discretionary transfers, garner consent from the employee being transferred, and create transparent procedures regarding the grounds on which transfers may and may not be based.

Q: What best practices should HR follow to avoid discrimination claims related to actions like performance reviews or disciplinary measures now that Title VII covers more than just hiring or firing?

Hattaway: The Hamilton decision highlights the need for employers to stay up to date on legal developments. In this one decision, the Fifth Circuit opened the door for claims that just one day earlier were not actionable. Reviewing policies and employee handbooks on a regular basis is a good first step to staying on top of the changing legal landscape.

Q: How can HR and legal teams ensure that policies related to terms or conditions of employment are nondiscriminatory in light of the Hamilton ruling?

Hattaway: HR should carefully scrutinize policies to ensure that they are not just facially nondiscriminatory but also that policies do not have the (perhaps unintended) consequence of treating employees differently on account of a protected class. Employers should also take complaints of discrimination seriously, regardless of the severity of the harm of the employment decision, by investigating and documenting complaints. Finally, employers should be as transparent as possible pertaining to the grounds on which transfers may and may not be based.

This article was published by HR Excellence Magazines on HR.com in the January 2025 Payroll, HRIS, Time & Attendance Excellence and is republished here with permission.