There is a widespread belief that the U.S. Court of Appeals for the Fifth Circuit is uniformly hostile to employment law claims. But, like Mark Twain’s death, this rumor has been widely exaggerated.
First off, take Thompson v. City of Waco, a 2014 decision in which en banc review, over four dissents, was denied on Feb. 26. Here is the deal: An employer can confess to taking action against an employee with discriminatory animus, but there is no violation of Title VII or §1981 unless something really bad happens to the employee (i.e. an adverse employment action) such as termination, refusal to hire (for applicants), being demoted or being denied a promotion. Anything else (including reprimands, lateral transfers and other opportunities) and the plaintiff is out of luck. Until now. A panel of the Fifth Circuit looked at these facts in reversing the denial of a Rule 12 (b)(6) motion in a race discrimination case.
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