In a Wednesday order, the appeals court said the majority of active circuit judges voted in favor of hearing the case, which hinges on a scheduling policy the Dallas County Sheriff’s Office put in place in mid-2019. In an Aug. 3 opinion, a three-judge panel said the case is an “ideal vehicle” to reconsider a 27-year-old rule that bars discrimination cases unless a person has faced an employment decision related to hiring, firing, leave, promotions or compensation.
In a letter to counsel for the parties, the Fifth Circuit gave the female officers until Nov. 14 to file an en banc brief and said Dallas County will have until Dec. 14 to file its own brief. The case is set to be heard in mid-January.
According to the female officers’ suit, initially filed in February 2020, the sergeant implementing the policy claimed it would be safer for male officers to be off during the weekends as opposed to during the week. However, the female officers said there’s no difference between their tasks and those of male colleagues, and the number of inmates during the week is the same as the number of inmates on the weekend.
A trial court threw out the case in 2021, and the Fifth Circuit upheld that decisionearlier this year, with both courts saying they were bound by circuit precedent established by a 1995 ruling in Dollis v. Rubin. Under the circuit’s “rule of orderliness,” a prior panel decision can only be overruled when there is a change in the law, a U.S. Supreme Court decision drops or the Fifth Circuit issues an en banc opinion.
In their August petition for en banc rehearing, the female officers said the “adverse-employment-action doctrine” allows employers to require all Black employees to work under white supervisors, female employees to stand at every meeting, people with disabilities to work in a special area, and older employees to write reports about retirement plans.
But last month, Dallas County said these examples are hyperbole and rebutted the assertion that this suit is the “ideal vehicle” to reexamine the 1995 ruling. If the adverse-employment-action test were eliminated, the most likely result would be an “explosion of Title VII suits over trivialities,” according to the county’s brief.
The U.S. Department of Justice and the U.S. Equal Employment Opportunity Commission, which are tasked with enforcing Title VII, filed an amicus brief last year urging the Fifth Circuit to rethink its ultimate-employment-decision standard and arguing the rule is at odds with the text of the law.
Madeline Meth, who is representing the female officers, told Law360 that she’s hopeful the Fifth Circuit will agree that Congress banned all employment discrimination when it enacted the Civil Rights Act of 1964 and prevent something like this from happening again.
“The fact that the Fifth Circuit’s ultimate-employment-decision doctrine is getting in the way of our clients getting the relief that they are entitled to under the law has so far been disappointing,” Meth said.
Representatives for the Dallas County Sheriff’s Office did not immediately respond to requests for comment Thursday.
The officers are represented by Jay D. Ellwanger, David W. Henderson and Jennifer Jones of Despins Ellwanger Law LLP, by James A. Vagnini and Monica Hincken of Valli Kane & Vagnini LLP, and by Madeline Meth and Brian Wolfman of Georgetown Law Appellate Courts Immersion Clinic.
Dallas County is represented by Assistant District Attorney Jason G. Schuette.
–Additional reporting by Anne Cullen. Editing by Khalid Adad.