This Littler Lightbulb highlights some of the more significant employment law developments in the federal courts of appeal in the last month.

• Fifth Circuit Expands Scope of Actionable Claims Under Title VII. In Hamilton v. Dallas County, --- F.4th ----, No. 21-10133 (5th Cir. 2023), in an en banc decision, the Fifth Circuit departed from its decades-old precedent requiring that plaintiffs in a Title VII discrimination case allege disparate treatment in an “ultimate employment decision,” such as hiring, firing, promotions, grants of leave, or compensation. Instead, the court held, a Title VII plaintiff need only claim, more generally, that they suffered an adverse action in the “terms, conditions, or privileges of employment.”

The case involved nine female correctional officers who alleged only male officers were given weekends off.  The officers sued for sex discrimination under Title VII.  The district court ruled that schedule changes were not “ultimate employment decisions” and dismissed the case based on the pleading.  The initial Fifth Circuit panel upheld the district court’s decision but urged en banc review of the case to consider the “ultimate employment decisions” precedent.  The en banc panel reversed the initial Firth Circuit panel and decades-long precedent.  The opinion concluded that “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 privilege of employment.’”

• Seventh Circuit Assesses Elements of a Hostile Work Environment Claim. The plaintiff in Hambrick v. Kijakazi, --- F.4th ----, No. 22-3217 (7th Cir. Aug. 2023), filed suit against her employer, the Social Security Administration (SSA), asserting claims for a hostile work environment due to her race, under Title VII, and her age, under the Age Discrimination in Employment Act (ADEA). Among other things, she complained that her supervisors failed to recognize her accomplishments, despite her heavy workload, and specifically took issue with a “3 out of 5” performance rating she received and that her supervisor required her to attend weekly workload meetings, which plaintiff claimed were “accusatory, negative, and harassing.”

The district court granted summary judgment, concluding that the “totality of undisputed facts … consisted of unremarkable workplace disagreements,” and plaintiff’s “dissatisfaction with her supervisors, heavy workload, and lack of recognition,” did not create a hostile work environment. Affirming the district court’s granting of summary judgment, the Seventh Circuit held in assessing a hostile work environment claim, “[w]hat matters is whether the conduct became so severe or pervasive that ‘a reasonable person would find [it] hostile or abusive.’”  Evaluating the plaintiff’s complaints, the court found that they generally related to “one-time, everyday work disagreements that took place over several years” and that none of them, even considered in combination, were so severe or pervasive as to create a hostile work environment, nor did plaintiff show that any of the alleged harassing incidents were based on her race or age.

• Ninth Circuit Holds Remarks Regarding Religion and Discipline for Attending Religious Event During Work Time Did Not Constitute Discrimination. Hittle v. City of Stockton, --- F.4th ----, No. 22-15485 (9th Cir. 2023), involved a claim by a California city fire chief that he was terminated in violation of Title VII based on his religion and attendance at a religious leadership event. In support of his claim, plaintiff alleged that after his supervisor received a complaint from a high-ranking fire department manager that he favored members of a coalition who shared his Christian faith, his supervisor told him that she had “heard [he] was part of a group of folks, a Christian Coalition, and that [he] shouldn’t be involved in that.” She told him the city was not “‘permitted to further religious activities’ or ‘favor one religion over another.’” Plaintiff’s manager was also concerned about what she believed was plaintiff’s “clear lack of leadership and management skills,” and instructed him to find and attend a leadership training program, related to public sector service. Instead, while on duty, plaintiff attended a church-sponsored, two-day Global Leadership Summit with three other firefighters.  Plaintiff’s manager disciplined him and two of the other fire department employees who attended the summit with him—both of whom were also Christian—by forfeiting two vacation days “to reimburse” the city for time spent attending the summit.

Plaintiff filed suit claiming his supervisor’s comments about his religion and attendance at a religious event were direct evidence of discrimination. In its decision affirming summary judgment for the employer, the Ninth Circuit found that none of the supervisor’s comments constituted discrimination, but rather they reflected the supervisor’s “legitimate concern that the City could violate constitutional prohibitions and face liability if it is seen to engage in favoritism with certain employees because they happen to be members of a particular religion.” As to the discipline for plaintiff’s attendance at the church-sponsored summit, the court concluded that the plaintiff engaged in misconduct by attending a two-day event, while on paid work time, that did not benefit the city because it was not a training program “aimed at public sector leadership.” Accordingly, the court held, plaintiff’s termination was not the result of religious discrimination.

• Seventh Circuit Determines Whether Remote Work is a Reasonable Accommodation under the ADA. The plaintiff in Kinney v. St. Mary's Health Inc., --- F.4th ----, No. 22740 (7^th Cir. 2023) was a hospital director of imaging services, supervising approximately 120 employees in the hospital’s radiology department. The position required evaluating department staff as well as overseeing proper functioning of the medical imaging equipment. The job description for the position also required “using personal protective equipment as required.” Beginning in August 2020, the hospital required all employees to wear a face mask.  Plaintiff, who had been diagnosed with an anxiety disorder, claimed she was unable to wear a mask or other face covering because they exacerbated her condition. She submitted notes from her physician recommending that she work entirely from home, “if possible,” which was subsequently modified to allow her to work in person two days per week for six hours per day. For three months, the plaintiff worked in person two days per week, spending most of her time in her office, without a mask, with the door closed, using intermittent FMLA leave and accrued paid time off to cover the remaining three workdays each week. When her FMLA leave expired, the plaintiff resigned and filed suit under the ADA for failure to accommodate her disability and constructive discharge, among other things.

In determining whether working in person was an essential function of the plaintiff’s job and whether working from home was a reasonable accommodation, the court assessed the job description, the consequences of not performing the required job duties, and the work experience of employees in similar jobs, and determined plaintiff could not effectively perform the required on-site monitoring and evaluation of department activities from home.  The court noted that numerous employees she supervised complained that her absence affected their performance and the department more broadly. As to the work experience of other employees, the court stated that although many employees were able to work remotely temporarily when forced to do so by a global health crisis, those jobs, in contrast to plaintiff’s position, did not have essential functions that required in-person work over the medium to long term. For all these reasons the court found plaintiff’s accommodation request was not reasonable, concluding that “it would have allowed [the plaintiff] to avoid performing tasks essential to her job rather than help[ing] her to accomplish them.”