5th Circ. Widens Bias Law's Scope as High Court Edict Looms

Labor, Employment and Benefits attorneys Bryan Neal and Stephen Fink were interviewed by Law360 about a recent federal appellate decision concerning the scope of Title VII claims. The U.S. Court of Appeals for the Fifth Circuit issued an en banc ruling that employees and job applicants can pursue claims that involve allegations of bias concerning any "terms, conditions, or privileges of employment," instead of only those concerning an "ultimate employment decision" like a hiring, termination or pay cut. In response, legal professionals foresee an uptick in claims and cases before the Fifth Circuit.

Complicating the situation is that the U.S. Supreme Court is set to hear the case Muldrow v. St. Louis, which also concerns the scope of Title VII. Until the high court issues its decision, Mr. Neal explained, individual cases will determine what claims are covered by the law.

"As it stands now, that line will be drawn piecemeal by individual litigation decisions and, perhaps, whichever three-judge panel of the Fifth Circuit gets the first case to decide," he said. "Fortunately, however, the Supreme Court likely will provide some additional guidance when it decides Muldrow. The Supreme Court probably will set a legal standard ... though it remains to be seen how definitive that standard will be or where the Supreme Court will draw the line."

Mr. Fink commented on the upcoming Muldrow case, saying the justices will likely take the approach of "full engagement with the text instead of stopping analysis with a search for specific words."

"Somebody is going to have to explain why Congress bothered to prohibit discrimination in hiring, firing and compensation specifically if it understood the words 'terms, conditions, or privileges of employment' to mean all employment-related decisions rather than just decisions like hiring, firing, and compensation," he said.

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