On August 18, 2023, in Hamilton v. Dallas County, the United States Fifth Circuit Court of Appeals, sitting en banc, handed down a significant Title VII ruling that has far-reaching implications for future employment discrimination cases in Louisiana, Mississippi, and Texas. Employees seeking to bring a discrimination claim no longer need to meet the high burden of proving they suffered an “ultimate employment decision.” Instead, the Fifth Circuit has aligned with its sister circuits, and plaintiffs need only show they suffered from a discriminatory act related to hiring, firing, compensation or the terms, conditions, or privileges of employment. Indeed, in Hamilton, the Fifth Circuit initially applied the ultimate employment decision standard before rehearing the case en banc and ultimately reversing 27 years of precedence.
For many years, the Fifth Circuit limited actionable Title VII cases to those cases involving ultimate employment decisions. An ultimate employment decision is a decision that affects hiring, granting leave, discharging, promoting, or compensation. Employment decisions that did not impact at least one of the five enumerated categories did not rise to a level to sustain a claim under Title VII. 
Hamilton arose from a Dallas County Sheriff’s Department (“the County”) employment policy pursuant to which officers were allowed to select their off-day preference, but only men could select two consecutive weekend days. Consequently, female officers were not allowed time off for a full weekend. On its face, the policy was gender-based and discriminatory, but the County attempted to justify the policy by asserting that “it would be safer for male officers to be off during the weekends as opposed to during the week.”
In its initial August 3, 2022 panel opinion, consistent with its prior holdings, the Fifth Circuit held the gender-based scheduling policy was not an ultimate employment decision and affirmed the district court’s summary judgment and dismissal in favor of the County. The policy did not involve an ultimate employment decision and was, therefore, not actionable. To be actionable, the conduct must have impacted one of the enumerated categories and risen to the level of an ultimate employment decision. In the panel opinion authored by Judge Carl Stewart, the Court acknowledged its holding was contrary to its sister circuits and the express language of Title VII. But, absent an amendment to Title VII, a decision by the Court en banc, or a Supreme Court decision, the Court was bound by existing Fifth Circuit precedent. In the panel opinion, Judge Stewart recognized that the allegation against the County was within the scope of the express language of Title VII but not within the narrower requirements of Fifth Circuit precedent. In some circuits, to survive summary judgment, employees need only show that they are members of a protected class and an employment decision impacted their compensation, terms, conditions, or privileges of employment. In those circuits, claims are not limited to ultimate employment decisions. In the panel opinion, Judge Stewart expressly stated that the Hamilton case was ideal for an en banc review by the Court and would give the Court an opportunity to align the Fifth Circuit with its sister circuits and achieve fidelity with Title VII.
Sitting en banc, in an opinion by Judge Don Willett, the Fifth Circuit overturned its original August 3 panel decision. Judge James Ho concurred, and Judges Edith Jones, Jerry Smith, and Andrew Oldham concurred with the judgment only. In its en banc opinion, the Court detailed the history of the phrase “ultimate employment decision” and the impact the phrase had on its past ruling. Applying the language of Title VII, the Court determined that although the County’s actions did not rise to the level of an ultimate employment decision under the Court’s prior interpretation of Title VII and was not actionable (as reflected in the original panel opinion), the en banc Court determined that because the County’s actions were linked to the female officers’ terms, conditions, and privileges of employment, their claims were actionable under Title VII. The gender-based scheduling policy had an adverse impact on female officers, and there was enough to survive summary judgment. The en banc Court held that “employees need only show that they were discriminated against because of a protected characteristic with respect to hiring, firing, compensation, or the terms, conditions, or privileges of employment to state a claim under Title VII.” The judges concurring with the judgment reasoned that the conduct in Hamilton was actionable under the current standard. The concurring judges opined that the majority decision left ambiguity for employees and employers to determine what is an actionable Title VII claim and ultimately disagreed with the majority’s interpretation of the express language of Title VII. Instead of changing the standard, the concurring judges suggested that the Court should continue applying the ultimate employment decision standard until the Supreme Court resolved the circuit split in a similar case.
The Fifth Circuit’s en banc decision in Hamilton changed the standard for Title VII discrimination claims by eliminating the need for an ultimate employment decision to sustain a Title VII claim and focused on whether an adverse decision had impacted the terms, condition, and/or privileges of employment. Yet, as reflected in the concurring opinion, the Court did not provide guidance regarding the types of adverse decisions effecting terms, conditions, or privileges of employment that could constitute actionable claims. The door has been left open for the Court to refine the scope of an adverse employment decision. What is clear is that employees no longer must satisfy the higher burden of showing an adverse employment decision. Because the standard has been lowered, there may be more cases brought under Title VII and more Title VII cases may survive summary judgment (like the plaintiffs in Hamilton). However, more suits does not mean more wins by plaintiffs. Plaintiff employees still must prove their case.
 Hamilton v. Dallas County, 21-10133, 2023 WL 5316716 (5th Cir. Aug. 18, 2023).
 42 U.S.C. § 2000e-2(a) (“It shall be an unlawful employment practice for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.”)
 Hamilton v. Dallas County, 42 F.4th 550, 552 (5th Cir. 2022), reh’g en banc granted, opinion vacated, 50 F.4th 1216 (5th Cir. 2022), and on reh’g en banc, 21-10133, 2023 WL 5316716 (5th Cir. Aug. 18, 2023).
 Id. at 557.
 Hamilton, 21-10133, 2023 WL 5316716 at *8 (emphasis added).