Hamilton v. Dallas County

Case: 21-10133    Document: 00516863689        Page: 1     Date Filed: 08/18/2023




           United States Court of Appeals
                for the Fifth Circuit                                United States Court of Appeals
                                                                              Fifth Circuit

                               ____________                                 FILED
                                                                      August 18, 2023
                                 No. 21-10133                          Lyle W. Cayce
                               ____________                                 Clerk

   Felesia Hamilton; Tashara Caldwell; Brenda Johnson;
   Arrisha Knight; Jamesina Robinson; Debbie Stoxstell;
   Felicia Smith; Tameka Anderson-Jackson; Tammy
   Island,

                                                         Plaintiffs—Appellants,

                                     versus

   Dallas County, doing business as Dallas County Sheriff’s Department,

                                           Defendant—Appellee.
                 ______________________________

                 Appeal from the United States District Court
                     for the Northern District of Texas
                           USDC No. 3:20-CV-313
                 ______________________________

   Before Richman, Chief Judge, and Higginbotham, Jones, Smith,
   Stewart, Elrod, Southwick, Haynes, Graves, Higginson,
   Willett, Ho, Duncan, Engelhardt, Oldham, Wilson, and
   Douglas, Circuit Judges.
   Don R. Willett, Circuit Judge, joined by Richman, Chief Judge, and
   Higginbotham, Stewart, Elrod, Southwick, Haynes,
   Graves, Higginson, Ho, Duncan, Engelhardt, Wilson, and
   Douglas, Circuit Judges:
         For almost 60 years, Title VII has made it unlawful for an employer
   “to fail or refuse to hire or to discharge any individual, or otherwise to
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                                           No. 21-10133


   discriminate against any individual with respect to his [or her] compensation,
   terms, conditions, or privileges of employment, because of such individual’s
   race, color, religion, sex, or national origin.” 1 Despite this broad language,
   we have long limited the universe of actionable adverse employment actions
   to so-called “ultimate employment decisions.” We end that interpretive
   incongruity today.
                                       *        *         *
          The Dallas County Sheriff’s Department gives its detention service
   officers two days off each week. The department uses a sex-based policy to
   determine which two days an officer can pick. Only men can select full
   weekends off—women cannot. Instead, female officers can pick either two
   weekdays off or one weekend day plus one weekday. Bottom line: Female
   officers never get a full weekend off.
          Nine female detention service officers sued Dallas County, alleging
   that this sex-based scheduling policy violates Title VII’s prohibition against
   sex discrimination. Constrained by our decades-old, atextual precedent, a
   panel upheld dismissal of the officers’ complaint, ruling that the
   discriminatory scheduling policy did not amount to an “ultimate
   employment decision.” But the panel noted that this case was the “ideal
   vehicle” for the en banc court to align our circuit with Title VII’s text.
          Today we hold that a plaintiff plausibly alleges a disparate-treatment
   claim under Title VII if she pleads discrimination in hiring, firing,
   compensation, or the “terms, conditions, or privileges” of her employment.
   She need not also show an “ultimate employment decision,” a phrase that
   appears nowhere in the statute and that thwarts legitimate claims of

          _____________________
          1
              42 U.S.C. § 2000e-2(a)(1).




                                                2
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                                           No. 21-10133


   workplace bias. Here, giving men full weekends off while denying the same
   to women—a scheduling policy that the County admits is sex-based—states
   a plausible claim of discrimination under Title VII.
           We REVERSE and REMAND.
                                                 I
           This case concerns a sex-based scheduling system for jail guards in the
   Dallas County Sheriff’s Department.
           The plaintiffs are nine female correctional officers who allege that
   their shift schedules used to be “determined based on seniority.” Beginning
   in April 2019, however, the County adopted a sex-based scheduling policy
   under which “only male officers are given full weekends off.” “Female
   employees are not given full weekends off and can only receive weekdays
   and/or partial weekends off.” But weekend days are “preferred days off” for
   both men and women. As a result, schedules are sex-based even though
   “male and female employees perform the same tasks.” 2
           After exhausting their administrative remedies, the Officers sued the
   County for sex discrimination under Title VII, 42 U.S.C. §§ 2000e et seq.
   The Officers also asserted a parallel state-law discrimination claim under the
   Texas Employment Discrimination Act, Tex. Lab. Code §§ 21.001 et
   seq.



           _____________________
           2
              The Officers’ supervisor explained that the rationale behind this policy is “that
   it would be unsafe for all the men to be off during the week and that it was safer for the men
   to be off on the weekends.” However, “male and female employees perform the same tasks
   and the number of inmates during the week is the same as the number of inmates on the
   weekend.” The County also states in its briefs that the policy was only “temporary,” but
   this fact does not appear in the complaint.




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                                            No. 21-10133


          The district court granted the County’s motion to dismiss under Rule
   12(b)(6), noting that, under our precedent, “an adverse employment action
   for Title VII discrimination claims consists of ‘ultimate employment
   decisions such as hiring, granting leave, discharging, promoting, and
   compensating.’” 3 Applying that precedent, the district court reasoned that
   “[c]hanges to an employee’s work schedule, such as the denial of weekends
   off, are not an ultimate employment decision.” 4 Because the adverse-
   employment-action element of the prima-facie Title VII case was missing,
   the district court dismissed the complaint. 5
          On initial appeal, a panel of our court affirmed, reasoning along the
   same lines. Noting that the County did “not dispute its discriminatory
   intent,” 6 the panel observed that “[t]he conduct complained of here fits
   squarely within the ambit of Title VII’s proscribed conduct: discrimination
   with respect to the terms, conditions, or privileges of one’s employment
   because of one’s sex.” 7 The panel added:

          • “Given the generally accepted meaning of those terms, the
            County would appear to have violated Title VII.” 8

          • “Surely allowing men to have full weekends off, but not
            women, on the basis of sex rather than a neutral factor like
            merit or seniority, constitutes discrimination with respect

          _____________________
          3
            Hamilton v. Dallas Cnty., 

, at *2 (N.D. Tex. Dec. 1, 2020)
   (quoting Felton v. Polles, 

 (5th Cir. 2002)).
          4
              

 (citing Benningfield v. City of Houston, 

 (5th Cir. 1998)).
          5
              Id. at *3.
          6
              Hamilton v. Dallas Cnty., 

 (5th Cir. 2022).
          7
              

.
          8
              

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                                               No. 21-10133


                      to the terms        or    conditions     of   those   women’s
                      employment.” 9

           • “[T]he benefits that come with seniority, here, the ability
             to request one’s preferred days off, should amount to a
             privilege of employment.” 10

           Even so, the panel concluded that it was “bound by this circuit’s
   precedent, which requires a Title VII plaintiff” to have “suffered some
   adverse employment action by the employer” and which says that “adverse
   employment actions include only ultimate employment decisions such as
   hiring, granting leave, discharging, promoting, or compensating.” 11 Because
   “the denial of weekends off is not an ultimate employment decision,” the
   panel affirmed the district court’s dismissal. 12 The panel concluded by urging
   the    full         court   to   “reexamine          our   ultimate-employment-decision
   requirement” in light of our deviation from Title VII’s plain text. 13 We
   granted rehearing en banc to do so.
                                                   II
           Our standard of review and the dismissal rules under Rule 12(b)(6) are
   well settled. “We review de novo the district court’s dismissal for failure to


           _____________________
           9
                

           10
                

 (footnote omitted).
           11
             

 (cleaned up) (first quoting McCoy v. City of Shreveport, 

 (5th
   Cir. 2007); and then quoting Welsh v. Fort Bend Indep. Sch. Dist., 

, 824 (5th
   Cir. 2019)).
           12
              Id. at 556 (first citing Hernandez v. Sikorsky Support Servs., Inc., 

 (5th Cir. 2012) (per curiam) (unpublished); and then citing Mylett v. City of Corpus
   Christi, 

 (5th Cir. 2004) (per curiam) (unpublished)).
           13
                

.




                                                    5
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                                             No. 21-10133


   state a claim under Rule 12(b)(6).” 14 “To survive a motion to dismiss, a
   complaint must contain sufficient factual matter, accepted as true, to ‘state a
   claim to relief that is plausible on its face.’” 15 “A claim has facial plausibility
   when the plaintiff pleads factual content that allows the court to draw the
   reasonable inference that the defendant is liable for the misconduct
   alleged.” 16
                                                 III
           The facts alleged paint a clear picture of disparate treatment “because
   of” the Officers’ “sex.” 17 And the County does not dispute its
   discriminatory intent. 18 Therefore, the only issue before us is whether the
   Officers have plausibly alleged facts constituting an actionable adverse
   employment action under Title VII.
                                                  A
           We begin by considering whether Section 703(a) of Title VII, 19 the so-
   called anti-discrimination provision, 20 applies only to “ultimate employment
   decisions.” It is not so limited.




           _____________________
           14
                Ghedi v. Mayorkas, 

 (5th Cir. 2021).
           15
             Ashcroft v. Iqbal, 

 (2009) (quoting Bell Atl. Corp. v. Twombly,
   

 (2007)).
           16
                

           17
                42 U.S.C. § 2000e-2(a)(1).
           18
                See Hamilton, 

.
           19
                42 U.S.C. § 2000e-2(a).
           20
                See Burlington N. & Santa Fe Ry. Co. v. White, 

 (2006).




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                                           No. 21-10133


           “As with any question of statutory interpretation, our analysis begins
   with the plain language of the statute.” 21 Section 703(a) states:
           It shall be an unlawful employment practice for an employer—
                      (1) 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; or
                      (2) to limit, segregate, or classify his employees or
                      applicants for employment in any way which would
                      deprive or tend to deprive any individual of employment
                      opportunities or otherwise adversely affect his status as
                      an employee, because of such individual’s race, color,
                      religion, sex, or national origin. 22
   Our focus today is on the first subsection. 23
           For decades, our precedent has limited disparate-treatment liability
   under Section 703(a)(1) to “ultimate employment decisions.” By this phrase,
   we meant “‘only ultimate employment decisions such as hiring, granting
   leave, discharging, promoting, or compensating.’” 24

           _____________________
           21
                Jimenez v. Quarterman, 

 (2009).
           22
                42 U.S.C. § 2000e-2(a).
           23
                Although neighboring § 2000e-2(a)(2)’s prohibition is broader, making it
   unlawful “to limit, segregate, or classify . . . employees . . . in any way which would deprive
   or tend to deprive [them] of employment opportunities or otherwise adversely affect [their]
   status as . . . employee[s], because of . . . race” or “sex,” this language forms the basis for
   disparate-impact claims, whereas disparate-treatment claims are properly brought under
   § 2000e-2(a)(1). See Carpenter v. Stephen F. Austin State Univ., 

, 619 n.7 (5th
   Cir. 1983).
           24
              Welsh, 941 F.3d at 824 (quoting McCoy, 

); see also Alvarado v. Tex.
   Rangers, 

 (5th Cir. 2007); Pegram v. Honeywell, Inc., 

   (5th Cir. 2004); Thompson v. City of Waco, 

 (5th Cir. 2014) (“For Title




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                                            No. 21-10133


           We first used that phrase almost 30 years ago in Dollis v. Rubin, which
   declared that “Title VII was designed to address ultimate employment
   decisions, not to address every decision made by employers that arguably
   might have some tangential effect upon those ultimate decisions.” 25 But the
   only authority Dollis cited for this proposition was Page v. Bolger, a 1981 case
   (and the origin of the phrase “ultimate employment decision”) in which the
   Fourth Circuit observed that then-extant Title VII caselaw had “focused on
   the question whether there has been discrimination in what could be
   characterized as ultimate employment decisions such as hiring, granting
   leave, discharging, promoting, and compensating.” 26 Ironically, the Fourth
   Circuit in Page then qualified this comment, writing, “[W]e suggest no
   general test for defining those ‘ultimate employment decisions’ . . . covered
   by . . . antidiscrimination provisions of Title VII. . . . [T]here are certainly
   [decisions] other[] than those we have so far specifically identified that may
   be so considered for example, entry into training programs.” 27 Thus, Dollis’s
   embrace of an “ultimate employment decision” rule was based on a
   misinterpretation of Page, which used that phrase merely to describe trends




           _____________________
   VII and § 1981 discrimination claims, we have held that adverse employment actions
   consist of ‘ultimate employment decisions’ such as hiring, firing, demoting, promoting,
   granting leave, and compensating.”).
           25
               

, 781–82 (5th Cir. 1995) (per curiam). Although Dollis involved a claim
   not of discrimination in violation of 42 U.S.C. § 2000e-2(a), but of retaliation for engaging
   in Title VII-protected activity in violation of § 2000e-3(a), Dollis did not limit its holding
   to retaliation claims, and our subsequent decisions applied Dollis’s “ultimate employment
   decision” requirement in disparate-treatment cases as well. See Felton, 

.
           26
                

 (4th Cir. 1981) (en banc).
           27
                

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                                               No. 21-10133


   in Title VII litigation, not to restrict Title VII’s broad coverage to a handful
   of examples of discrimination mentioned in the Page opinion. 28
             Bound by this standard, we have reached some remarkable
   conclusions. Consider Peterson v. Linear Controls, Inc., where the plaintiff
   “alleged that he and his black team members had to work outside without
   access to water, while his white team members worked inside with air
   conditioning.” 29 Noting that “[o]ur court strictly construes adverse
   employment actions to include only ‘ultimate employment decisions,’ such
   as ‘hiring, granting leave, discharging, promoting, or compensating,’” we
   held “that these working conditions [were] not adverse employment actions
   because they [did] not concern ultimate employment decisions.” 30
             But that’s not what the statute says—at all.31 Nowhere does Title VII
   say, explicitly or implicitly, that employment discrimination is lawful if
   limited to non-ultimate employment decisions. To be sure, the statute
   prohibits discrimination in ultimate employment decisions—“hir[ing],”
   “refus[ing] to hire,” “discharg[ing],” and “compensation”—but it also
   makes it unlawful for an employer “otherwise to discriminate against” an




             _____________________
             28
            The Fourth Circuit itself has also disapproved of our interpretation of Page. See
   Von Gunten v. Maryland, 

, 866 n.3 (4th Cir. 2001).
             29
                  

, 373 (5th Cir. 2019) (per curiam), cert. dismissed, 

   (2020).
             30
                  

 at 373 (quoting McCoy, 

).
             31
             See Hardison v. Skinner, No. 20-30643, 

, at *6 (5th Cir. July 11,
   2022) (Dennis, J., specially concurring) (noting that the ultimate-employment-decision
   standard is a “judge-crafted limitation” with “no basis in the plain text or legislative history
   of Title VII”).




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                                             No. 21-10133


   employee “with respect to [her] terms, conditions, or privileges of
   employment.” 32
           Our ultimate-employment-decision test ignores this key language. But
   “[t]hese words cannot be meaningless, else they would not have been
   used.” 33 Restricting liability under the statute to “‘ultimate employment
   decisions such as hiring, granting leave, discharging, promoting, or
   compensating’” 34 renders the statute’s catchall provision all but
   superfluous. This we cannot do. 35 “Absent persuasive indications to the
   contrary, we presume Congress says what it means and means what it
   says.” 36 And here, Congress did not say that Title VII liability is limited to
   ultimate employment decisions.
           Supreme Court precedent confirms this conclusion. The Court has
   held that an adverse employment action “need only be a term, condition, or
   privilege of employment.” 37 And it has been clear that a Title VII plaintiff
   may recover damages even for “discrimination in the ‘terms, conditions, or
   privileges of employment’” that “did not involve a discharge,” “loss of
   pay,” or other “concrete effect on [his or her] employment status.” 38 Nor is


           _____________________
           32
                42 U.S.C. § 2000e-2(a)(1).
           33
                United States v. Butler, 

 (1936).
           34
                Welsh, 941 F.3d at 824 (quoting McCoy, 

).
           35
              See Duncan v. Walker, 

 (2001) (“It is our duty to give effect, if
   possible, to every clause and word of a statute.” (quoting United States v. Menasche, 

, 538–39 (1955)) (internal quotation marks omitted)).
           36
                Simmons v. Himmelreich, 

 (2016).
           37
                Hishon v. King & Spalding, 

 (1984).
           38
                Landgraf v. USI Film Prod., 

 (1994) (quoting 42 U.S.C. § 2000e-
   2(a)(1)).




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                                            No. 21-10133


   Title VII’s coverage “limited to ‘economic’ or ‘tangible’ discrimination.” 39
   This is because Section 703(a)(1) “not only covers ‘terms’ and ‘conditions’
   in the narrow contractual sense, but ‘evinces a congressional intent to strike
   at the entire spectrum of disparate treatment of men and women in
   employment.’” 40 Any “benefits that comprise the incidents of employment,
   or that form an aspect of the relationship between the employer and
   employees,” the Court has explained, fall within Title VII’s ban on
   discrimination. 41
           It is no wonder, then, that “[n]o other court of appeals applies so
   narrow a concept of an adverse employment action” as the “‘ultimate
   employment decision’ rule.” 42 Satisfied that our “ultimate employment
   decision” standard lies on fatally flawed foundations, we flatten it today.
   Having done away with our atextual “ultimate employment decision” gloss,
   we apply the statute as it is written and as construed by the Supreme Court.
                                                  B
           It should go without saying by now, but “we think it reasonable to
   begin with Title VII’s text.” 43 Under Title VII, it is 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
           _____________________
           39
                Meritor Sav. Bank, FSB v. Vinson, 

 (1986).
           40
             Oncale v. Sundowner Offshore Servs., Inc., 

 (1998) (quoting Meritor,
   

).
           41
              Hishon, 

 (cleaned up) (first quoting S. Rep. No. 867, 88th Cong.,
   2d Sess., 11 (1964)); and then quoting Allied Chem. & Alkali Workers v. Pittsburgh Plate Glass
   Co., 

 (1971)).
           42
                Hardison, 

, at *6 (Dennis, J., specially concurring).
           43
                Groff v. DeJoy, 

, 2294 (2023).




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                                            No. 21-10133


   of such individual’s race, color, religion, sex, or national origin.” 44 This
   language contains two elements. To plead a disparate-treatment claim under
   Title VII, a plaintiff must allege facts plausibly showing “(1) an ‘adverse
   employment action,’ (2) taken against a plaintiff ‘because of her protected
   status.’” 45
           At issue in this case is the first element: whether the Officers have
   adequately shown an “adverse employment action” for Title VII purposes.
   That term, which appears nowhere in the statute, is “a judicially-coined term
   utilized as shorthand for the statutory phrase ‘compensation, terms,
   conditions, or privileges of employment.’” 46 Thus, to plead an adverse
   employment action, a plaintiff need only allege facts plausibly showing
   discrimination in hiring, firing, compensation, or in the “terms, conditions,


           _____________________
           44
               42 U.S.C. § 2000e-2(a)(1). The Texas Employment Discrimination Act uses
   similar language, stating that an employer commits an unlawful employment practice if it
   “fails or refuses to hire an individual, discharges an individual, or discriminates in any other
   manner against an individual in connection with compensation or the terms, conditions, or
   privileges of employment.” Tex. Lab. Code § 21.051(1).
           45
             Cicalese v. Univ. of Texas Med. Branch, 

 (5th Cir. 2019) (citation
   omitted) (emphasis omitted).
            At the pleading stage, a plaintiff need not plead a prima facie case under the
   McDonnell Douglas framework, 

 (1973), though it is sometimes helpful to frame
   the analysis that way to determine whether a plaintiff has been discriminated against because
   of a protected characteristic. See Swierkiewicz v. Sorema N.A., 

, 510–11 (2002);
   Olivarez v. T-Mobile USA, Inc., 

, 600 (5th Cir. 2021); cf. Comcast Corp. v. Nat’l
   Ass’n of Afr. Am.-Owned Media, 

 (2020) (“For its part, McDonnell
   Douglas sought only to supply a tool for assessing claims, typically at summary judgment,
   when the plaintiff relies on indirect proof of discrimination.”).
           46
              Thompson, 

 (Smith, J., dissenting) (quoting 42 U.S.C. § 2000e-
   2(a)(1)); Stone v. La. Dep’t of Revenue, 

 (5th Cir. 2014) (per curiam)
   (“We use the shorthand term ‘adverse employment action’ to refer to an employment
   decision that negatively affects the compensation, terms, conditions, or privileges of
   employment.”).




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                                             No. 21-10133


   or privileges” of his or her employment. 47 Here, of course, the Officers allege
   discrimination in the catchall category: the “terms, conditions, or privileges
   of employment.” 48
           Before applying the law to the Officers’ allegations, we are mindful
   that the statutory phrase, “terms, conditions, or privileges of employment,”
   is broad. As the Supreme Court has repeatedly stated, this language, while
   contractual in nature, “is not limited to ‘economic’ or ‘tangible’
   discrimination,” and “it covers more than ‘terms’ and ‘conditions’ in the
   narrow contractual sense.” 49 Indeed, the Court has held that even a
   discriminatory and hostile work environment—when sufficiently severe or
   pervasive—can rise to the level of altering the terms, conditions, or privileges
   of employment for Title VII purposes. 50 The Officers have not brought a
   hostile-work-environment claim, of course, but the Court’s elucidation of the
   statutory text in that context nonetheless informs our construction of the
   very same text for purposes of disparate-treatment claims.
           Turning to the Officers’ claims, we have little difficulty concluding
   that they have plausibly alleged discrimination “with respect to [their] . . .
   terms, conditions, or privileges of employment.” 51 The days and hours that



           _____________________
           47
           42 U.S.C. § 2000e-2(a)(1); Hishon, 

 (noting that the challenged
   employment action “need only be a term, condition, or privilege of employment”).
           48
             The Texas statute uses materially identical language. See Tex. Lab. Code
   § 21.051(1) (“terms, conditions, or privileges of employment”).
           49
             Faragher v. City of Boca Raton, 

 (1998) (internal quotation marks
   omitted) (first quoting Harris v. Forklift Sys., Inc., 

 (1993); and then quoting
   Oncale, 

).
           50
                Harris, 510 U.S. at 21–22; Meritor, 477 U.S. at 63–67.
           51
                42 U.S.C. § 2000e-2(a)(1).




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                                           No. 21-10133


   one works are quintessential “terms or conditions” of one’s employment. 52
   Indeed, these details go to the very heart of the work-for-pay arrangement.
   Additionally, the complaint’s allegations support a plausible inference that
   the right to pick work shifts based on seniority is a “privilege” of employment
   with the County. And “[a] benefit that is part and parcel of the employment
   relationship may not be doled out in a discriminatory fashion.” 53 Here, by
   switching from a seniority-based scheduling system to one based on sex, the
   County plausibly denied the Officers the “privilege” of seniority because of
   their sex.
          The Sixth Circuit recently reached the same conclusion in a strikingly
   similar case. In Threat v. City of Cleveland, the plaintiffs alleged that their
   employer had assigned night and day shifts based on race, even though the
   employer had previously used a seniority-based scheduling system. 54 Noting
   that it was a rather “straightforward” application of the English language,
   the Sixth Circuit held that “[a] shift schedule is a term of employment.” 55 It
   further held that “[b]enefits that come with seniority may count as privileges
   of employment. And losing out on a preferred shift may diminish benefits
   that a senior employee has earned.” 56 “It’s not even clear that we need
   dictionaries to confirm what fluent speakers of English know.” 57 We agree
   with that court’s reasoning. Here, as in Threat, switching from a seniority-

          _____________________
          52
             See Hishon, 467 U.S. at 75–76 & 76 n.8 (noting that “wages” and “hours” come
   within the statutory phrase, “terms and conditions of employment,” under a directly
   analogous statute (citing Allied Chem. & Alkali Workers, 

)).
          53
               Id. at 75.
          54
               

 (6th Cir. 2021).
          55
               

 (“How could the when of employment not be a term of employment?”).
          56
               

          57
               

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                                              No. 21-10133


   based system to a sex-based system discriminates against employees in the
   “terms, conditions, or privileges of employment.” 58 It’s that simple. At the
   pleading stage, these allegations are sufficient to state a claim under Title VII.
          The County’s contrary position is that “a shift change, without more,
   is not an adverse employment action.” The County says that we should
   ignore Title VII’s text by limiting liability for disparate treatment to cases in
   which the employer’s actions “directly cause, or are likely to cause in the
   future, loss of or reduced employment compensation.” Such a standard, they
   contend, is objective, judicially administrable, and necessary to hold back
   what (they say) would otherwise be a flood of Title VII litigation over run-of-
   the-mill workplace squabbles.
          But even putting aside the fact that Title VII’s text, on its face, is not
   limited to economically adverse employment actions, we cannot construe the
   statute in this manner. For one, the Supreme Court has repeatedly stated that
   Section 703(a)’s text “is not limited to ‘economic’ or ‘tangible’
   discrimination.” 59 For another, to limit Title VII liability to cases in which
   the employer’s discrimination impacted an employee’s compensation would
   render superfluous the key phrase “terms, conditions, or privileges,” as the
   very same section already prohibits discrimination “with respect to [an
   employee’s] compensation.” 60 Clearly, then, such a crabbed reading of the
   statute cannot be right. 61
          As a fallback position, the County suggests that we should require a
   plaintiff to show—in addition to discrimination with respect to the “terms,
          _____________________
          58
               42 U.S.C. § 2000e-2(a)(1).
          59
               Faragher, 

 (quoting Harris, 

).
          60
               42 U.S.C. § 2000e-2(a)(1).
          61
               See Duncan, 

.




                                                  15
Case: 21-10133          Document: 00516863689               Page: 16        Date Filed: 08/18/2023




                                            No. 21-10133


   conditions, or privileges of employment”—a “materially adverse
   employment action,” a “tangible employment action,” or an “objective
   material harm requirement.” At the very least, it contends, Title VII liability
   does not extend to “de minimis” discrimination. Indeed, most of the
   County’s briefing is devoted to rebutting the Officers’ position, which is that
   Title VII “establishes no minimum level of actionable harm.” There is some
   merit to the County’s position, as nearly every circuit court seems to have
   adopted one of these limitations. 62 And we readily acknowledge that the
   Supreme Court has cautioned federal courts not to “transform Title VII into
   a general civility code for the American workplace.” 63 Title VII accordingly
   does not permit liability for de minimis workplace trifles. 64

           _____________________
           62
               See, e.g., Morales-Vallellanes v. Potter, 

 (1st Cir. 2010) (“materially
   adverse change in the terms and conditions of employment”); Williams v. R.H. Donnelley,
   Corp., 

 (2d Cir. 2004) (“materially adverse”); Storey v. Burns Int’l Sec.
   Servs., 

 (3d Cir. 2004) (“serious and tangible enough” (internal quotation
   marks and citation omitted)); James v. Booz-Allen & Hamilton, Inc., 

 (4th
   Cir. 2004) (“significant detrimental effect” (internal quotation marks and citation
   omitted)); McCoy, 

 (5th Cir. 2007) (“ultimate employment decisions”);
   Threat, 

 (6th Cir. 2021) (excluding “de minimis” employment actions);
   Herrnreiter v. Chicago Hous. Auth., 

 (7th Cir. 2002) (“materially adverse
   employment action” (internal quotation marks omitted)); Cooney v. Union Pac. R.R. Co.,
   

 (8th Cir. 2001) (“tangible change in working conditions that produces a
   material employment disadvantage” (internal quotation marks and citation omitted));
   Chuang v. Univ. of California Davis, Bd. of Trs., 

 (9th Cir. 2000)
   (“materially affect the compensation, terms, conditions, or privileges of . . .
   employment”); Hiatt v. Colo. Seminary, 

 (10th Cir. 2017) (“significant
   change in employment status” (internal quotation marks and citation omitted)); Davis v.
   Town of Lake Park, 

 (11th Cir. 2001) (“serious and material,” “tangible
   adverse effect on the plaintiff’s employment” (emphasis omitted)); Brown v. Brody, 

 (D.C. Cir. 1999) (“objectively tangible harm”), overruled by Chambers v.
   District of Columbia, 

 (D.C. Cir. 2021) (en banc).
           63
                Oncale, 

.
           64
             Threat, 

 (“[O]ur approach honors a de minimis exception that
   forms the backdrop of all laws.”); Chambers, 

 (Walker, J., concurring in the




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                                            No. 21-10133


           But whatever standard we might apply, it is eminently clear that the
   Officers’ allegations would satisfy it at the pleading stage. In light of the
   allegation that full weekends off is a preferred shift for both men and women,
   it is plausible that requiring female officers to work weekends but not male
   officers is a “tangible,” “objective,” and “material” instance of sex
   discrimination in the terms, conditions, or privileges of employment—and
   far more than “de minimis.” 65 So, too, is denying seniority privileges to
   female officers while allowing male officers to exercise theirs. We thus leave
   for another day the precise level of minimum workplace harm a plaintiff must

           _____________________
   judgment in part and dissenting in part) (“[N]othing indicates that Congress intended to
   displace the de minimis principle in Title VII’s antidiscrimination provision.”); 

   (Katsas, J., dissenting) (“As the Supreme Court has explained, the venerable maxim de
   minimis non curat lex (‘the law cares not for trifles’) is part of the established background of
   legal principles against which all enactments are adopted, and which all enactments (absent
   contrary indication) are deemed to accept. Nothing in Title VII abrogates this background
   principle.” (internal quotation marks and citation omitted)); Washington v. Ill. Dep’t of
   Revenue, 

 (7th Cir. 2005) (“Courts have resisted the idea that federal law
   regulates matters of attitude or other small affairs of daily life” in large part “because of
   the maxim de minimis non curat lex[.]”).
             While the circuit courts vary in how they articulate their preferred materiality
   standard, see supra note 62, all circuits agree that, at the very least, Title VII does not permit
   liability for petty trivialities or insubstantial annoyances. Future cases in our circuit will
   need to determine the floor that Title VII’s anti-discrimination provision sets for actionable
   harm. But that question—whether “material” and “more than de minimis” are simply two
   sides of the same coin, or whether there is more room between those terms—is a question
   for another day. Cf. Groff, 143 S. Ct. at 2294 (“We hold that showing ‘more than
   a de minimis cost,’ as that phrase is used in common parlance, does not suffice to establish
   ‘undue hardship’ under Title VII.”); Threat, 

 (“But de minimis means de
   minimis, and shorthand characterizations of laws should not stray.”). Nothing in this
   opinion or in our sister-circuit citations should be read to foreshadow our opinion on what
   measure of materiality is required. And dicta on a question not answered here should not
   be passed from opinion to opinion, lest the message be mangled as if in “the children’s
   game of telephone.” 

 (internal quotation marks omitted).
           65
              See Groff, 143 S. Ct. at 2295 (noting that “de minimis” means “something that
   is ‘very small or trifling’” (quoting Black’s Law Dictionary 388 (5th ed. 1979))).




                                                  17
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                                            No. 21-10133


   allege on top of showing discrimination in one’s “terms, conditions, or
   privileges of employment.” 66
                                                 IV
           To adequately plead an adverse employment action, plaintiffs need
   not allege discrimination with respect to an “ultimate employment
   decision.” Instead, a plaintiff need only show that she was discriminated
   against, because of a protected characteristic, with respect to hiring, firing,
   compensation, or the “terms, conditions, or privileges of employment”—
   just as the statute says. 67 The Officers here have done so.
           For these reasons, we REVERSE the district court’s judgment and
   REMAND for further proceedings consistent with this opinion. 68




           _____________________
           66
               42 U.S.C. § 2000e-2(a)(1). Further counseling against our wading into this issue
   is that the Supreme Court appears poised to address it, as the Court recently granted
   certiorari in Muldrow v. City of St. Louis, 

 (8th Cir. 2022), cert. granted in part,
   

, 

 (U.S. June 30, 2023) (No. 22-193).
           67
                42 U.S.C. § 2000e-2(a)(1); Tex. Lab. Code § 21.051(1).
           68
              The parties did not separately discuss the Officers’ state-law claim and agree that
   the state-law claim should be treated the same as the federal Title VII claim. For the sake
   of clarity, because we vacate and remand the Title VII claim, we REVERSE and
   REMAND the state-law claim for further proceedings as well.




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                                    No. 21-10133


   James C. Ho, Circuit Judge, concurring:
          Our longstanding circuit precedent limits employment discrimination
   claims under Title VII of the Civil Rights Act of 1964 to only those employer
   actions that constitute “ultimate employment decisions,” such as “hiring,
   granting leave, discharging, promoting, and compensating.” Dollis v. Rubin,
   

, 781–82 (5th Cir. 1995).
          But that’s not what the text says. Title VII sweeps more broadly. It
   prohibits discrimination not only in hiring, firing, and compensation, but also
   with respect to the “terms, conditions, or privileges of employment.” 42
   U.S.C. § 2000e–2(a)(1).
          So the majority today overturns circuit precedent and restores the
   text. I concur.
          I write separately to respond to our distinguished colleagues who
   concur only in the judgment. Our colleagues criticize the majority for
   overturning precedent while “refus[ing]” to answer certain questions. Post,
   at 26. They say that “leaving [those unanswered questions] for another day”
   may even offend “[o]rdinary concepts of due process.” Id. at 26–27.
                                          ***
          When longstanding precedent conflicts with plain text, we have to
   decide what’s more important: Restoring the text? Or resolving every
   unanswered question that restoring the text might present, before we do so?
          It’s a choice we must make, because overturning atextual precedent
   can raise a number of unanswered questions.            But the existence of
   unanswered questions should not stop us from restoring text and overturning
   precedent. Rather, we should “decide every case faithful to the text . . . to
   the maximum extent permitted by a faithful reading of binding precedent.”




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                                   No. 21-10133


   Texas v. Rettig, 

, 409 (5th Cir. 2021) (Ho, J., dissenting from
   denial of rehearing en banc).
          Justice Thomas has written that, “[w]hen faced with a demonstrably
   erroneous precedent, my rule is simple: We should not follow it.” Gamble
   v. United States, 

 (2019) (Thomas, J., concurring). And
   that’s why we granted rehearing en banc in this case—because only the en
   banc court has the authority to overturn erroneous circuit precedent.
                                          I.
          This debate reminds me of the dueling opinions over unanswered
   questions in Fulton v. City of Philadelphia, 

 (2021). Members
   of the Court there sharply disagreed over whether to restore the text of the
   Free Exercise Clause of the First Amendment by overturning Employment
   Division v. Smith, 

 (1990).
          Justice Barrett acknowledged that the arguments against Smith are
   “compelling.” 141 S. Ct. at 1882 (Barrett, J., concurring). “As a matter of
   text and structure, it is difficult to see why the Free Exercise Clause—lone
   among the First Amendment freedoms—offers nothing more than
   protection from discrimination.” Id.
          But she declined to overturn Smith because she was concerned about
   the unanswered questions that overturning Smith would raise. “Yet what
   should replace Smith?” Id. “There would be a number of issues to work
   through if Smith were overruled.” Id. at 1883. She set forth a series of
   questions that the Court would inevitably have to “wrestle with” in future
   cases if Smith were overturned. Id. (collecting unanswered questions).
          Justice Gorsuch responded to Justice Barrett’s concerns about
   unanswered questions. He noted that “not a single Justice has lifted a pen to




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                                     No. 21-10133


   defend the decision” in Smith. Id. at 1931 (Gorsuch, J., concurring in the
   judgment). “So what are we waiting for?” Id.
          “We hardly need to ‘wrestle’ today with every conceivable question
   that might follow from recognizing Smith was wrong.” Id. “To be sure, any
   time this Court turns from misguided precedent back toward the
   Constitution’s original public meaning, challenging questions may arise
   across a large field of cases and controversies. But that’s no excuse for
   refusing to apply the original public meaning in the dispute actually before
   us.” Id. “Rather than adhere to Smith until we settle on some ‘grand unified
   theory’ of the Free Exercise Clause for all future cases until the end of time,
   the Court should overrule it now, set us back on the correct course, and
   address each case as it comes.” Id. (citation omitted).
                                          II.
          Fidelity to text will sometimes require overturning atextual precedent.
   And overturning atextual precedent will sometimes result in unanswered
   questions that courts may need to address in future cases. But that’s what
   courts are for. It’s not a reason to ignore text.
          Just look at how the Supreme Court ruled in its two most recent
   decisions involving the 1964 Civil Rights Act, decided on the same day at the
   close of its most recent Term.
          In Groff v. DeJoy, _ U.S. _ (2023), and Students for Fair Admissions,
   Inc. v. President and Fellows of Harvard College, _ U.S. _ (2023), the Court
   favored text over longstanding atextual precedent. And it did so knowing full
   well that both decisions leave unanswered a whole range of questions that
   courts will now have to confront in future cases.




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Case: 21-10133      Document: 00516863689            Page: 22    Date Filed: 08/18/2023




                                      No. 21-10133


                                           A.
          Let’s start with Groff. Title VII not only forbids employers from
   discriminating against people of faith—it affirmatively requires employers to
   accommodate their religious practices, unless doing so would impose an
   “undue hardship on the conduct of the employer’s business.” 42 U.S.C. §
   2000e(j). Decades ago, however, the Court concluded that requiring an
   employer to “bear more than a de minimis cost . . . is an undue hardship.”
   Trans World Airlines, Inc. v. Hardison, 

 (1977).
          In Groff, the Court did away with the “de minimis” gloss in
   Hardison—much like how our circuit today does away with our “ultimate
   employment decision” gloss in Dollis.
          Notably, the Court abandoned the “de minimis” standard even
   though that will inevitably lead to a number of unanswered questions. After
   all, if we’re no longer following the de minimis standard, then courts will now
   have to decide how much hardship is “undue” for the employer’s business—
   a question that will have to be resolved in virtually every case imaginable
   involving a request for a religious accommodation.             See, e.g., George
   Weykamp, Religious Objections Over Pronouns Test High Court’s New Stance,
   Bloomberg, Aug. 9, 2023.
          The Court was well aware of this and restored the text anyway. In
   fact, it acknowledged that unanswered questions will be presented, not only
   in other cases in the wake of Groff, but in Groff itself: “Having clarified the
   Title VII undue-hardship standard, we think it appropriate to leave the
   context-specific application of that clarified standard to the lower courts in
   the first instance. . . . [W]e think it appropriate to leave it to the lower courts
   to apply our clarified context-specific standard, and to decide whether any
   further factual development is needed.” _ U.S. at _.




                                           22
Case: 21-10133      Document: 00516863689          Page: 23   Date Filed: 08/18/2023




                                    No. 21-10133


          Justice Gorsuch summed it up this way during oral argument: It
   would be “a good day’s work” “simply to say” that “this de minimis
   language” is “not the law,” “put a period at the end of it,” and leave future
   questions for future cases. Tr. of Oral Arg. 64–65.
                                         B.
          The same is true in Students for Fair Admissions. Title VI states that
   “[n]o person in the United States shall, on the ground of race, color, or
   national origin, be excluded from participation in, be denied the benefits of,
   or be subjected to discrimination under any program or activity receiving
   Federal financial assistance.” 42 U.S.C. § 2000d. For decades, however,
   the Supreme Court has allowed colleges and universities to consider race in
   deciding which students to admit—and which students to deny. See, e.g.,
   Grutter v. Bollinger, 

 (2003).
          In Students for Fair Admissions, the Court restored the plain text of
   Title VI and prohibited colleges and universities from discriminating on the
   basis of race.
          Once again, the Court restored text despite the heated debates over
   alternative admissions policies that would predicably erupt as a result.
          For example, university leaders have already suggested that they may
   use admissions essays to achieve the preferred racial outcomes they
   previously attained through race-conscious admissions. See, e.g., Steven
   McGuire, Can Harvard Use Application Essays to Discriminate by Race?,
   Wall St. J., Aug. 11, 2023. The validity of such efforts will require courts
   to answer a number of legal questions. To take just one: University leaders
   justify these efforts by claiming an interest in diversity. So courts will have
   to decide whether that interest is sincere or pretextual, in light of other
   dynamics such as ideological conformity on campus, homogeneity in faculty
   and administration hiring, and student disruptions of disfavored viewpoints.




                                         23
Case: 21-10133     Document: 00516863689              Page: 24   Date Filed: 08/18/2023




                                       No. 21-10133


   Courts will have to decide whether schools can justify their DEI efforts if
   their vision of diversity doesn’t include diverse viewpoints, if equity doesn’t
   encompass equality for people of faith, and if inclusion involves excluding
   politically unpopular beliefs. For schools that tolerate (if not practice)
   ideological discrimination, courts will have to determine whether diversity is
   nothing more than a pretext for race.
          Yet none of this stopped the Court from restoring the plain text of
   Title VI in Students for Fair Admissions.
          And so too here. Our beloved colleagues are no doubt correct that our
   majority opinion today will lead to unanswered questions and future cases.
   But that is no reason to favor atextual precedent over text, just as it wasn’t in
   Groff and in Students for Fair Admissions.
                                           III.
          Congress enacted the Civil Rights Act of 1964 to protect every
   American against every form of prohibited discrimination—not just certain
   favored classes against certain disfavored forms of discrimination. For
   decades, however, the judiciary has distorted the Act in various ways to
   protect some Americans, while excluding others.
          Today’s decision is just the latest in a series of recent rulings designed
   to restore the full meaning of the Civil Rights Act for the benefit of all
   Americans. Groff restores Title VII for people of faith. Students for Fair
   Admissions restores Title VI for Asian American students. And our decision
   today will help restore federal civil rights protections for anyone harmed by
   divisive workplace policies that allocate professional opportunities to
   employees based on their sex or skin color, under the guise of furthering
   diversity, equity, and inclusion.




                                           24
Case: 21-10133     Document: 00516863689           Page: 25   Date Filed: 08/18/2023




                                    No. 21-10133


          As the Civil Rights Division of the Justice Department noted during
   en banc oral argument in this case, if “a law firm is having a lunch to do CLEs
   and you have a policy that says we’re only going to invite women but not men
   to this CLE lunch, that’s of course actionable, and that’s of course a term,
   condition, or privilege of employment” under Title VII. Audio of Oral Arg.
   23:00–23:29. The Justice Department agreed that “a lot of law firms do
   that.” Id. at 25:35. It also noted that “work assignments . . . happening on
   the basis of race” are likewise actionable under Title VII. Id. at 27:12–20.
          The Justice Department is not alone in expressing these concerns.
   See, e.g., Andrea R. Lucas, With Supreme Court affirmative action ruling, it’s
   time for companies to take a hard look at their corporate diversity programs,
   Reuters, June 29, 2023 (“Title VII bars . . . a host of increasingly popular
   race-conscious corporate initiatives: from providing race-restricted access to
   mentoring, sponsorship, or training programs; to selecting interviewees
   partially due to diverse candidate slate policies; to tying executive or
   employee compensation to the company achieving certain demographic
   targets; to offering race-restricted diversity internship programs or
   accelerated interview processes, sometimes paired with euphemistic
   diversity ‘scholarships’ that effectively provide more compensation for
   ‘diverse’ summer interns.”); U.S. Senator Tom Cotton, Cotton Warns Top
   Law Firms About Race-Based Hiring Practices, July 17, 2023.
                                        ***
          “Equality of opportunity is fundamental to who we are, and to who
   we aspire to be, as a nation.” Lindsley v. TRT Holdings, Inc., 

 (5th Cir. 2021). Today’s decision will help bring us closer to achieving
   those aspirations. I concur.




                                         25
Case: 21-10133       Document: 00516863689              Page: 26      Date Filed: 08/18/2023




                                         No. 21-10133


   Edith H. Jones, Circuit Judge, joined by Smith and Oldham, Circuit
   Judges, concurring in the judgment only:
           I concur in the result reached by the majority, a remand for further
   development in this decidedly unusual case. After all, the plaintiffs’ pleading
   is that the Dallas County Sheriff’s Department changed the weekend shift
   pattern from seniority-based to specifically gender-based, to the alleged
   detriment of the female staff. Rarely in recent years have we seen such an
   admission. In my view, our governing precedents sufficed to countenance
   remand and further development. See Thompson v. City of Waco, 

 (5th Cir. 2014) (any employment decision causing such
   “significant and material” harm that it makes the employee’s job
   “objectively worse” is ultimate because it is the “equivalent of a
   demotion”); see also Sharp v. City of Houston, 

 (5th Cir.
   1999). But this does not satisfy the present-minded majority, who decry and
   apparently annul our “atextual” thirty-year string of precedents. 69 The
   question left hanging by the majority is what kind of “term or condition” of
   employment creates an actionable Title VII discrimination claim. The
   majority refuses to say, leaving “for another day the precise level of minimum
   workplace harm a plaintiff must allege on top of showing discrimination in
   one’s ‘terms, conditions, or privileges of employment.’”
           The majority’s incomplete ruling fails for two reasons. First, it leaves
   the bench, bar, and employers and employees with no clue as to what this
   court will finally declare to be the minimum standard for Title VII
   liability. The majority holding amounts to this: we hold that speeding is
   illegal, but we will not say now what speed is illegal under what

           _____________________
           69
             As the majority catalogues in its Footnote 62, nearly every circuit has similar,
   long-standing precedent imposing minimum standards for liability under Title VII.




                                              26
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                                            No. 21-10133


   circumstances. Ordinary concepts of due process should have required
   notice to the public regarding this vital and pervasive workplace law. The
   omission is doubly troubling, because even as this court dithers, the Supreme
   Court is poised to resolve the circuit split in a case not dissimilar from this
   one. See Muldrow v. City of St. Louis Missouri, No. 22-193, 

,
   at *1 (U.S. June 30, 2023) (cert. granted to decide if Title VII prohibits
   “discrimination in transfer decisions absent a separate court determination
   that the transfer decision caused a significant disadvantage”). 70 If panels of
   this court begin to populate the new “textual” Title VII holding with caselaw
   about materiality or de minimis discrimination, they are all subject to revision
   no later than June 2024, and this circuit will be back in a position of
   uncertainty, pending even further developments. This is not judicial
   prudence, it is judicial abdication. Prudence would have counselled that we
   continue to enforce our governing precedents until they are refined by the
   Supreme Court.
           Second, I disagree with the majority’s claim to a “textual” reading of
   Title VII that purports to eschew materiality as a necessary basis of employer
   liability. Since what we write today is eminently and imminently contingent,
   this will be brief. In the most recent case to thoroughly explore the statutory
   basis for Title VII employment discrimination cases, Judge Katsas’s dissent
   offered a wholly convincing “textualist” explanation as to why actionable

           _____________________
           70
              In that case, the plaintiff alleged that she had been transferred from one division
   of the St. Louis Police Department to another. The court declined to find a Title VII
   violation, reasoning that her new position “did not result in a diminution to her title, salary,
   or benefits” or result in “a significant change in working conditions or responsibilities.”
   Muldrow v. City of St. Louis Missouri, 

 (8th Cir. 2022). Because “a
   mere preference for one position over the other” was insufficient to meet the circuit’s
   “adverse employment action” standard, the Eighth Circuit affirmed a grant of summary
   judgment to the city. 

. To decide Muldrow, therefore, the Supreme Court must
   say something about what kind of injury suffices to support a Title VII claim.




                                                 27
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                                         No. 21-10133


   discrimination must entail a “materially adverse” change in work conditions
   when viewed “objectively” by a reasonable observer. Chambers v. D.C.,
   

 (D.C. Cir. 2022) (Katsas, J., dissenting). 71                    First,
   Section 703(a)(1)’s use of the phrase “discriminate against” means that the
   plaintiff must have suffered an injury of some kind. 72 

. Second,
   the law’s general background presumption against recovery for de minimis
   injuries is not abrogated here. 

. Third, by the canon of ejusdem
   generis, the types of discrimination specifically enumerated in Section 703—
   “to fail or refuse to hire or to discharge any individual”—make clear that the
   actions covered by Section 703’s more general clause—“or otherwise to
   discriminate”—must constitute objectively material harm. 

           Further support for Judge Katsas’s interpretation springs from the
   fact that other claims actionable under Title VII, such as hostile work
   environment, retaliation, and constructive discharge claims, all require
   threshold standards connoting objective, material injury.                     A sexual
   harassment claim is not actionable unless the misconduct is “severe or
   pervasive enough to create an objectively hostile or abusive work
   environment.” Harris v. Forklift Sys., Inc., 

, 

   (1993). “To show constructive discharge, an employee must offer evidence
   that the employer made the employee’s working conditions so intolerable
   that a reasonable employee would feel compelled to resign.” Barrow v. New
   Orleans S.S. Ass’n, 

 (5th Cir. 1994). Most recently, the
   Supreme Court embraced an interpretation of Title VII retaliation in

           _____________________
           71
             This court’s majority, curiously, fails to mention the erudite clash of views
   espoused on these questions in the D.C. Circuit’s debate.
           72
             See also Bostock v. Clayton Cnty., Georgia, 

 (2020) (“To
   discriminate against a person . . . would seem to mean treating that individual worse than
   others who are similarly situated.”) (quotation marks omitted).




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                                         No. 21-10133


   Section 704(a), 42 U.S.C. § 2000e-3(a), that includes conduct outside the
   workplace. Burlington N. & Santa Fe Ry. Co. v. White, 

,
   

 (2006). But at the same time, the Court emphasized
   that an objective standard is required because the term “discriminate
   against” in Section 704(a) protects “an individual, not from all retaliation,
   but from retaliation that produces an injury or harm.” 

. Further, “the provision’s standard for judging harm must be
   objective.”     

. The Supreme Court’s interpretation of
   “discriminate against” in this companion antiretaliation provision must,
   under the presumption of consistent usage 73 apply to the same language in
   Section 703(a)(1). Chambers, 35 F.4th at 891–92. This point of textualism
   the majority also overlooked.
           Finally, as the majority recognizes, the Supreme Court emphasizes
   that Title VII does not effectuate a workplace “general civility code.” Oncale
   v. Sundowner Offshore Servs., Inc., 

, 

   (1998).      Yet as written, the majority opinion has no baseline for
   “discrimination” based on terms or conditions of employment. 74 Take one
   example. In a hypothetical workplace, only one supervisor is permitted to
   work remotely from out-of-state because of a spouse’s relocation. If that
   supervisor is male, or white, or Christian, does this mean that any female,
   black, or Muslim supervisor is “discriminated against” if denied the same
           _____________________
           73
            See ANTONIN SCALIA & BRYAN A. GARNER, READING LAW: THE
   INTERPRETATION OF LEGAL TEXTS 171–73 (2012).
           74
             To be sure, the majority dance around holding that de minimis injuries are not
   actionable, and it refuses to state whether a materiality standard may be invoked in
   subsequent cases. Technically, of course, neither adumbration to Section 703(a)(1) is
   “textual” in the majority’s literalistic sense. Moreover, as Judge Katsas explained, even
   while the majority’s decision (in Chambers as in this case) claims to be fact-specific, and
   “reserves the possibility that Title VII may not extend to de minimis injuries,” “the
   decision cannot be fairly confined….” 

.




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                                   No. 21-10133


   remote work opportunity? Another example: employer allows extended
   lunch period when a male employee says he’s going to barbershop, but denies
   the request for a female. Are these cases actionable next week under the
   majority’s reasoning?
         Let us see what the Supreme Court does with Muldrow before we
   render any workplace “difference” an equivalent, for filing suit at least,
   of “discrimination.”
         I concur in the judgment only.




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