“Checking the Right Box”: Whittington v. Harris County and the Fifth Circuit’s Clarification of Color-versus-Race Exhaustion under Title VII

Introduction

In Whittington v. Harris County, Texas, No. 24-20172 (5th Cir. July 7, 2025), the United States Court of Appeals for the Fifth Circuit delivered a split decision in an employment-discrimination suit filed by former Deputy Constable Bert W. Whittington. The court affirmed dismissal of some claims but revived others, producing three holdings of particular note:

1. It drew a bright doctrinal line between “race” and “color” discrimination under Title VII, holding that an EEOC charge which checks the “race” box but not the “color” box fails to exhaust a color-discrimination theory.
2. It reiterated that Texas constables are not county policymakers for purposes of Monell liability under 42 U.S.C. § 1983.
3. It clarified that district courts may, in appropriate circumstances, back-date a notice of appeal lost to an e-filing glitch—yet a dubitante opinion questioned the jurisdictional propriety of such leniency.

The decision therefore both narrows and broadens plaintiffs’ litigation avenues: it tightens the pleading and exhaustion requirements for color claims, yet reopens the courthouse door for race-based termination, retaliation, and hostile-environment allegations at the summary-judgment stage.

Summary of the Judgment

The panel (Judges Dennis, Oldham, and Douglas) disposed of the appeal as follows:

• Notice of Appeal: Accepting the district court’s factual finding that Whittington’s December 21, 2023 notice was thwarted only by a technical malfunction, the majority held the appeal timely.
• § 1983 – Monell claim: Affirmed summary judgment for Harris County; a precinct-level constable is not a county policymaker.
• Title VII – Color Discrimination: Affirmed dismissal because Whittington failed to exhaust the claim; “race” ≠ “color.”
• Title VII – Race-based Termination, Retaliation, and Hostile Work Environment: Reversed summary judgment; genuine disputes of material fact existed under the McDonnell Douglas framework.
• Remand: The case returns to the district court for trial on race-based termination, retaliation, and hostile-environment theories and for further proceedings consistent with the opinion.

Judge Oldham wrote separately, doubting jurisdiction because he believed Whittington never actually filed a timely notice of appeal.

Analysis

Precedents Cited and Their Influence

• Bowles v. Russell, 551 U.S. 205 (2007) – Established the jurisdictional nature of the notice-of-appeal deadline. The majority distinguished Bowles by deferring to the district court’s fact-finding, whereas Judge Oldham found the district court clearly erroneous.
• Spriggs v. United States, 132 F.4th 376 (5th Cir. 2025) – Clarified clear-error review for jurisdictional facts, guiding the majority’s deference.
• Monell v. Department of Social Services, 436 U.S. 658 (1978) – The touchstone for municipal § 1983 liability. Citing Fifth Circuit precedents (Anderson v. Harris Cnty., 98 F.4th 641 (2024); Rhode v. Denson), the panel held a precinct constable lacks county-wide policymaking authority, dooming Whittington’s § 1983 theory.
• McDonnell Douglas Corp. v. Green, 411 U.S. 793 (1973) – The burden-shifting paradigm for circumstantial Title VII evidence. The panel held Whittington carried his prima facie burden and marshaled sufficient evidence of pretext and retaliation.
• Bryant v. Bell Atlantic Maryland, Inc., 288 F.3d 124 (4th Cir. 2002) – Quoted to define color discrimination as disparate treatment based on skin shade, illuminating why “race” and “color” are analytically distinct.
• Clark v. City of Alexandria, 116 F.4th 472 (5th Cir. 2022) – Sets a high bar for proving a hostile environment. The panel distinguished Clark given the frequency and graphic nature of the epithets and the physical danger alleged.

Legal Reasoning

1. Timeliness of the Appeal
   • The district judge, familiar with CM/ECF quirks, credited documentary proof of timely payment and a sworn certificate of service.
   • Under clear-error review, the panel refused to disturb that finding.
   • Judge Oldham’s dubitante stance underscores tension between practical docket management and the Supreme Court’s jurisdictional rigidity post-Bowles.
2. § 1983 / Monell
   • A “policymaker” must wield final county-wide authority. Texas constables govern only their precincts; thus, their acts cannot render the county liable.
3. Color vs. Race Exhaustion
   • Title VII’s text separately lists “race” and “color.” Applying the canon against surplusage (Bailey v. United States), the panel treated them as distinct grounds.
   • Whittington, assisted by counsel, checked “race” but not “color” on the EEOC form; therefore, the latter claim was unexhausted.
   • The court embraced the Fourth Circuit’s definition of color bias focusing on skin hue rather than ancestry.
4. Race-based Termination, Retaliation, Hostile Work Environment
   • Whittington produced comparators, disparate treatment, temporal proximity, and overt racial epithets—sufficient to cast doubt on the county’s stated reasons.
   • The hostile-environment prong was satisfied because multiple racial slurs, sexualized racial comments, and placement in risky positions amounted to conduct “severe or pervasive.” The panel relied on Supreme Court dicta that a single use of the N-word by a supervisor can suffice (Woods v. Cantrell).

Impact on Future Litigation

1. Exhaustion Doctrine Tightened
Plaintiffs in the Fifth Circuit must now take special care when preparing EEOC charges: omitting the “color” box (or failing to use explicit color-based language in the narrative) forecloses a subsequent “color-only” theory in federal court. Counsel will likely advise complainants to check both boxes when any skin-tone issue is suspected.

2. Municipal Liability Remains Constrained
The reaffirmation that constables are not county policymakers solidifies a line of precedents limiting Monell exposure for Texas counties. Plaintiffs must look for alternative policymakers (e.g., Commissioners Court, Sheriff) or plead individual-capacity claims.

3. Technical-Glitch Filings
While not published, the panel’s willingness to accept a back-dated notice of appeal offers litigants a lifeline where electronic filing goes awry, yet the dubitante opinion signals that litigants should not rely on such leniency.

4. Hostile Environment Threshold
Trial courts in the circuit may cite Whittington to distinguish “mere teasing” from slur-laden and physically endangering environments, perhaps lowering the summary-judgment bar for plaintiffs alleging repeated racial epithets.

Complex Concepts Simplified

• Color vs. Race Discrimination – “Race” concerns ancestry or ethnic group (e.g., African American vs. Asian American). “Color” focuses on the darkness or lightness of one’s skin, even within the same racial group. Congress listed both to capture nuances such as favoritism for light-skinned versus dark-skinned individuals of the same race.
• Exhaustion of Administrative Remedies – Before suing under Title VII, an employee must file a charge with the EEOC outlining each basis of discrimination. Courts police this prerequisite strictly; unmentioned theories are usually barred.
• Monell Policymaker – A local entity is only liable under § 1983 when the constitutional harm “flows from” an official policy made by someone with final authority to set that policy for the entity as a whole.
• Prima Facie Case & Pretext – Under McDonnell Douglas, the plaintiff first shows minimal evidence of discrimination (prima facie). The employer then produces a lawful reason. The burden swings back to the plaintiff to show that reason is a sham (pretext).
• Dubitante Opinion – Latin for “doubting.” A judge writes separately to express doubt about the majority’s reasoning or jurisdiction while not formally dissenting.

Conclusion

Whittington v. Harris County is an instructive mixed ruling. It tightens the procedural straps on Title VII plaintiffs by insisting upon precise administrative exhaustion of “color” claims, yet it simultaneously underscores that blatant racial slurs, unequal discipline, and retaliatory investigations can and often should reach a jury. The case also perpetuates the Fifth Circuit’s restrictive view of municipal liability and offers a cautionary tale about e-filing mishaps. Practitioners must heed these lessons: choose EEOC boxes wisely, gather comparator evidence early, and never assume that a payment receipt equals a filed notice of appeal.