Appeals court mulls sex-preferential treatment.

When, if ever, is it OK for an employer to provide one sex with preferential treatment in scheduling? Most HR professionals would immediately answer "never" if doing so amounts to sex discrimination. Preferring one sex over another would seem to be blatant discrimination based on sex.

But in August, a 5th Cir cuit Court of Appeals panel ruled that sometimes it's perfectly fine to prefer men over women for weekends off. The court's rationale back then was that scheduling isn't an "ultimate employment decision" that triggers Title VII's sex discrimination protections. No one was fired, refused a promotion or hired solely due to the policy.

Now, the full court will rehear the case.

The facts: The lawsuit involves male and female detention officers in Dallas County, Texas. All officers get two days off per week, but female officers only have one weekend day off, while male officers get the entire weekend off. The reason? Safety concerns that males were less needed on weekends, when presumably fewer dangerous prisoners need to be transferred from the facility to court appearances or appointments with lawyers. The women argued that not being able to have full weekends off made their jobs worse for them and better for men.

Dallas argued that the scheduling harm to the female officers, if any, was trivial. The lower court agreed, tossing out the women's sex discrimination case. On appeal, so did a panel of three appellate judges. It is rare for...