Employee Survival Guide® - An Extreme Hostile Work Environment Case: The Billie Banks vs. General Motors Story

Episode Date: March 2, 2024

Embark on a legal journey that cuts to the core of workplace ethics as we dissect the Billie Banks vs. General Motors case, a paramount lawsuit that challenges our understanding of race-based discrimination and hostile work environments. This episode lays bare the incidents of racial taunts and sexual harassment that Banks endured, exploring the employer's inadequate response and the subsequent legal battles that ensued. We promise to guide you through the complexities of the law, the precedents that shape court decisions, and the nuances of retaliation, disparate treatment claims, and what truly constitutes a hostile work setting.Hear the harrowing tale of Banks's struggles with General Motors—a narrative that exposes the dark side of corporate America and the challenges of disability leave. As we scrutinize the suspension of benefits and the questionable psychiatric evaluations Banks faced, we highlight the bitter realities of discrimination in the workplace. Banks's story isn't just a legal case; it's an eye-opener on corporate missteps , hostile work environments and their dire consequences on an individual's career and well-being. This chapter offers an unflinching look at the personal toll exacted by workplace discrimination and the uphill battle for justice and respect.Our final act pulls back the curtain on the legal labyrinth that Banks navigated in her pursuit of vindication. Analyzing the district court's initial rulings, the pivotal reversal of the hostile work environment claim, and the Supreme Court's perspective on discrete acts of discrimination, we illustrate the concrete implications for employees like Banks. Join us as we evaluate the continuing violation doctrine, the critical timing for filing discrimination charges under Title VII, and the profound impact of judicial interpretation on workplace hostility—ultimately reinforcing the importance of these legal concepts for employees.Case Update: On February 8, 2024, the U.S. District Court for the Western District of New York reported the parties had reached an undisclosed settlement.  A resolution that took ten years!!  Obviously, the facts did not look great for the defendant before trial which was to start on July 12, 2024.   Link to Court Decision:  https://law.justia.com/cases/federal/appellate-courts/ca2/21-2640/21-2640-2023-09-07.html If you enjoyed this episode of the Employee Survival Guide please like us on Facebook, Twitter and LinkedIn. We would really appreciate if you could leave a review of this podcast on your favorite podcast player such as Apple Podcasts. Leaving a review will inform other listeners you found the content on this podcast is important in the area of employment law in the United States. For more information, please contact our employment attorneys at Carey & Associates, P.C. at 203-255-4150, www.capclaw.com.

Hey, it's Mark here and welcome to the next edition of the Employee Survival Guide where I tell you, as always, what your employer does definitely not want you to know about and a lot more. Hey, it's Mark here and welcome to the next edition of the Employee Survival Guide. Today I have something a little bit different for you. When you do a podcast, you come up with statistics about what people are interested in. And one of them came up in terms of, I did a podcast having to do with what is a hostile work environment anyway. It received a lot of responses in terms of people's interest.

And so I thought that aside from my statement about what I think it is and what I said in the podcast, I want to do something different today. So I went out and tried to find a case that discussed hostile work environment. And I found one that was quite elaborate. And I wanted to do something different today is actually share a case. It happened by a decision by the Second Circuit Court of Appeals, which is, you know, besides the Ninth Circuit in California, Second Circuit is, you know, preeminent like federal court. It's like it defines the law of land in our country. So the case was Billy Banks versus General Motors.

And I'm going to get into it. It's involving a race case, but it has the hostile work environment discussion. And as a summary, I will describe to you what happened as an initial summary. Then I'll get into the actual case. As an initial summary, then I'll get into the actual case. I'm literally going to read the case to you because it's important to see how courts rationalize decisions instead of what you read in the press about whatever decision was. There's mechanical elements to cases that judges have to go through. It's the law. We refer to it as laws by statute, laws by cases. you know, it's the law. You know, we refer to it as laws by statute, laws by cases. So here we have, you know, I refer to oftentimes the rule of law.

Here you have a precedent being set by the Second Circuit Court of Appeals. The date of the decision was September 7, 2023. It was an appeal from the Western District, I believe, of New York, and where the plaintiff in the case, an African-American woman, for an action against her employer under Title VII in the 1964 Civil Rights Act, Section 1981 of the 42 U.S.C. Section 1981, it's a race-based statute from Reconstruction era in the Civil War that's used now in employment cases and also New York State human rights law. The woman lost at the district court level at summary judgment, and she filed an appeal to the Second Circuit, and it got reversed,

remanded back down to the trial court to the Western District of New York. Pretty substantial decision because you have to understand that most decisions after summary judgment from a district court don't get remanded back down. And so that's a significant aspect you need to understand. So I'm going to get into the case about Billy Banks. And I want you to understand there's some page flipping here because there's a lot of material in front of me. So bear with me. But listen closely to the facts and listen to the law that the court goes into, and you're going to learn a lot about what hostile work environment is. And also, she had other claims having to do with retaliation and disparate treatment. So let's begin.

Billy Banks began her career at General Motors in 1985 as a security officer. After leaving to obtain a master's degree, she returned to General Motors in 1996 and began working at the Lockport plant near Buffalo, New York, where she continued to work until the present litigation. Banks has been promoted twice during her tenure at General Motors, most recently to the position of site safety supervisor in 2006. Banks held this position until she was replaced in 2014 while on medical leave. She returned to work in October 2014 and took another medical leave in January 2016. As you'll discover, these leaves are because of her issues she was having. And the decision goes on to say both

medical leaves were the purpose of recuperating from the stress, anxiety, and depression she incurred from working at the Lockport plant. The court goes on to say workplace culture at the Lockport plant is very important for background to understand. Banks presented evidence of an inappropriate conduct directed at her as well as others. Incidences that are directed at Banks now. Starting in 2002, Banks was subjected to a series of racially or sexually offensive incidents at the Lockport plant. For instance, Banks was accused by a supervisor of engaging in disability fraud in 2002 and credit card fraud in 2007.

She was called a dumb N-word by a manager during the meeting with other employees in 2004. Observed racist and sexist graffiti at the plant, including the N-word. And I have a philosophical issue about reporting the use of the N-word. I don't want to replicate it, but you know what I mean. And sexual slurs as well as sexually explicit pinup calendars and posters starting in 2006. And observed depictions of the Confederate flag on employees' vehicles and clothing starting in 2009. Again, this is Buffalo, New York. Also starting in 2009, at least three different employees directed sexually offensive comments toward Banks.

One told her she was looking good back there. Another said while looking at her breasts, asked, are you cold or just excited to see me? There's a lot of comedy in these cases, but that's not comedic. That's just effing cruel in trying to intimidate a woman. It's illegal, obviously. In August 2013, after Banks dismissed an outside contractor for violating safety protocols, a decision within her discretion as a safety supervisor, Tom Rush, a manager, walked into her office with another colleague and began yelling at her and shook a thick, rolled-up document threatening in her face.

Rush had neither overseen the contractor's work nor inspected the particular safety situation that had given rise to the dismissal. Several of Banks' colleagues, including some who were up to 50 feet away, overheard Rush, and one colleague was so concerned that he was prepared to step in physically to protect Banks from Rush. Rush's contact was sufficiently intimidating that Banks withdrew her order for the contractor to vacate the premises. Though Banks complained to management about the incident, in a subsequent investigation determined that Rush had actually acted inappropriately, Rush was never disciplined and the incident was never noted in his personnel file.

That's a very common thing for employers these days. During the CPR training class in April 2015, the union safety representative leading the class used Banks as an example of an quote-unquote African-American who, after using and overdosing on drugs at home, would be in need of CPR. Banks asked that the representative not use her as an example and subsequently complained to management, but the representative was not disciplined. That same class and union safety representative used an Asian-American co-worker as an example, directing the class to assume that the co-worker gets electrocuted by his work. I'm sorry, gets electrocuted by his walk and rice flies everywhere. End quote. I'm not making this shit up. Safety representative referred to an absorbent material used on the plant floor as naps, quote unquote naps, and joked to Banks that another black male used the materials for his hair.

Again, I'm not making this up. On one occasion in June 2015, when providing feedback for a document prepared for an upcoming presentation, Banks explained that she had made several changes to make the document appear more professional. Banks' colleagues, a white male, responded with an email that spread, quote, I'm not making this up either. Wait a minute. Are you saying us guys is unprofessional? I'm professional as wrestling.

You know what I mean. WWF. Professional wrestling. Take that to the bank. Billy Banks, LOL. And he puts in parens, I couldn't resist, end quote, end parens. Banks responded to the colleague to say that she believed he was mocking her using Ebonics, I'm sorry, a vernacular associated by some African Americans. In addition to these specific incidents, Banks routinely experienced insubordination in her role as a

safety supervisor, not experienced by her white colleagues. That's an important fact to note of disparate treatment. She was deprived of support staff while prior safety supervisors, most of whom were white men, had been given several direct reports. Her directives or assignments were often ignored, and she was routinely denied data and information she needed to prepare monthly safety presentations. During the safety training session in January 2013, a colleague called Banks an, quote-unquote, idiot in front of other employees. During another training session in May 2013, the same colleague, again called Banks an, quote-unquote, idiot, told the attendees that she doesn't, quote,

doesn't know what the hell she's doing, end quote, and that she would cost General Motors $7 million in OSHA fees. When banks complained about these incidents, Mike Morasco, a human resources business partner and training manager, replied, quote, you know why they do this to you, end question mark, because you are a black female. Again, I'm not making this up. The court now says incidents involving other employees. Other employees at the Lockport plant were also subjected to sexually and racially offensive conduct.

Several black and female employees told banks they had specifically been subjected to sexually offensive comments or racial epithets. Black colleagues, for example, shared with banks that they were called the N-word or monkey by white employees and that you, quote, you hear comments of the nature so often that you don't report them, end quote. Another black employee was referred to as a silverback by a manager in apparent comparison to a type of a gorilla. One black employee reported that a white colleague referred to a work product she considered to be poorly done as a n uh i can't say it's it's n-rised you fill in the blank uh and another reported that he was called n-word every day of the approximate 180 salary employees at the blockport plant six were black of those six three complained to management about discrimination. So it's going on across the board to a lot of employees at the plant. On three separate occasions from 2006 to 2017, black employees reported that nooses had been placed directly at or near their work sites.

The first noose incident occurred in 2006 when David Luckey, a black male employee, reported finding a noose placed in his toolbox. The noose was approximately three feet long and was made of thick rope. The second noose incident occurred in July 2014 when Luckey again reported seeing a noose, this time hanging from a crane near the plant's weld shop. The noose was also made of thick rope and was hung approximately eight feet from the ground. Another black colleague, Al Birch, related the incident to banks shortly after it happened as she was on disability leave. The third noose incident occurred in December 2017 when Daniel Marsh, another black colleague, reported finding a noose placed on a tugger or a motorized vehicle that was used around the job site. The tugger had been temporarily assigned to him, and he was covering the shift of another colleague.

The noose was made of gray twine. Marsh filed a report, and General Motors investigated the incident. Of course, they probably found nothing, as they always do. In September 2014, Lockheed reported finding a black rescue dummy, which was used for safety training exercises placed inside a Buddha, another type of motorized vehicle used inside the plant. Contrary to the usual practice, the rescue dummy was not wearing clothes besides a pair of tattered pants and was seated upright in the vehicle as if to drive it around. Lucky reported the incident and alleged that the display referenced slavery. Banks and other employees learned of the incident shortly thereafter and seemingly took offense. The record does not indicate the outcome of Lucky's complaint.

The internal and EEOC complaints. After raising numerous concerns with the Human Resources Department, banks filed a formal internal complaint on September 16, 2013. With Awareline, a third-party reporting service utilized by General Motors. Awareline complaint alleged that Banks had been subjected to race and sex discrimination and specifically detailed the incident involving Rush. Awareline began its investigation into the matter on September 20, 2013, but closed the investigation a few months later. Awareline did not interview or otherwise contact Banks. Not surprised because they don't do very much in their investigations other than try to

build a case for the defendant. On October 14th, 2013, October 24th, 2013, Banks filed her initial charge with the New York State Division of Human Rights and the EEOC alleging race and sex-based discrimination. It's important to note that the agencies have a work-sharing agreement, so you can file typically with the EEOC, which I would, and it gets automatically filed with the state agency. But on the form 5 box, you've got to check both little square boxes on the right-hand corner.

Otherwise, you can't have a claim under state law or federal law. So check your boxes. It is the federal government, so you have bureaucratic documentation. She amended the EOC charge on December 9, 2013, and again on July 10, 2014, the EOC issued Banks a Notice of Right to Sue letter on August 19, 2014. The importance there is when the EOC issues a Notice of Right to Sue, this is my commentary, that you have 90 days to file a suit or you waive your claims under Title VII. It is not a requirement under Section 42 of the U.S.A. 1981.

That has a four-year statute of limitations, which the court will get into in a second. The court references the disability leave and return to work for banks. On September 9, 2013, Banks began a period of disability leave to recuperate from the stress she incurred from the hostile and discriminatory environment at Lockport plant. The suspension of disability leave benefits. General Motors policy governing disability leave provides that employees are entitled to 100% of their salary for the first 13 weeks of leave and then 75% of their salary for the following 39 weeks of leave and then 75 percent of their salary for the following 39 weeks. On November 22nd, 2013, one month after Banks filed the EEOC claim and 10 weeks into her disability leave, General Motors suspended her disability leave benefits without

notice. It was retaliation, just the court will get into in a second. After her benefits were suspended, Banks was unable to support her family. Her mental health deteriorated, and she suffered panic attacks, headaches, insomnia, and digestive problems. During a check-in call with Susan Guthro, the plan's personnel director, in December 2013, Guthro commented that it must be tough for Banks that her sick leave benefits were cut off. Not making that one up either. General Motors justified the suspension of benefits on the basis that Dr. Jones, a psychiatrist retained by General Motors, had examined Banks on November 22, 2013,

and determined that she appeared fit for duty and had not submitted evidence supporting her continuing leave of absence. That is a requirement under ERISA for short-term disability benefits to substantially document, medically speaking. That's my commentary. In order, in here, the company conducted a physical assessment by the psychiatrist. It's kind of rare, but they took that effort. They can do that legally. Banks, however, contends that she did not speak with Dr. Jones until May 2014 during a conference call regarding her request to return to work. Banks successfully repealed the suspension of her benefits. The benefits were reinstated retroactively in two payments, the first on January 31, 2014, and another on February 15, 2014. The delayed return to work, the court references.

Let's take a quick break. It's Mark and we have a new product for you. It's called the Employee Survival Guide or EmployeeSurvival.com. And it's a site that you can obtain PDF products that I've created myself. I was spending too many hours, way too many, researching and writing about, for example, the performance improvement plan or beating them. And the second one about negotiating severance negotiation agreements, two of the most important topics that we see in terms of the web traffic and podcast traffic we have.

So check out EmployeeSurvival.com and see if this can try to help you and you don't need an attorney to use it. Thank you. In April 2014, Banks notified General Motors that she was ready to return to work. She provided a note from her treating physician and obtained approval from the plant doctor. In compliance with the practice she had followed when she returned from other periods of disability leave. Unlike her prior leave, however, this time General Motors required that she meet with Dr. Jones before it would be approved for her to return to work. Dr. Jones spoke with Banks over the phone several times starting in May 2014, but never met with her

in person. During this first call, Dr. Jones asked Banks if she had ever been raped or sexually abused as a child, as he noted that, quote, typically people who exhibit her symptoms have had that type of trauma, end quote. When Banks replied that she had not and remarked that the question was inappropriate, Dr. Jones responded that her complaints of workplace discrimination were not sufficient to sustain a mental breakdown, like he should know better. That's my comment. And that something in her family background must have caused her stress and anxiety. That's a little outrageous for me. I'm sorry. Banks told Jones that his inquiries were

inappropriate as they did not bear on her ability to return to work. I agree with Banks in that respect. Dr. Jones then remarked that he had reviewed Banks' file and doubted her readiness to return to work. He noted that Banks had filed the EEOC aware line and workers' compensation complaints, the last of which he had not filed, and remarked that she did not appear to have the, quote, conflict resolution skills to handle the environment. Well, I wouldn't have the conflict resolution skills to handle that shit show because that was a pretty tough environment.

And the quote goes on, at the plant and that she, quote, seemed to be emotional when talking about the incidents. Well, who wouldn't? Dr. Jones refused to approve her return to work. Banks next spoke to Dr. Jones in September 2014. During a call, Dr. Jones commented that Banks had, quote, lost her EOC awareness claims, acknowledging General Motors had not found anything. Dr. Jones approved Banks' return to work. The reassignment, the court says, several months into her disability leave, General Motors replaced Banks as a safety supervisor

without her knowledge. General Motors maintained a policy whereby salaried employees on disability leave would not be replaced without approval by their manager and the appropriate human resources management team. By January 29, 2014, four months after Banks began her disability leave, Guthro approved the public posting of Banks' position without obtaining the requisite approval from the relevant human resources team. Roscoe also sent a plant-wide email to salary employees advertising the open position. Banks did not receive the email, despite being included in the plant-wide email distribution. March 29, 2014, Robert Duke, a white man, was hired to replace Banks as a safety supervisor. In 2014, Robert Duke, a white man, was hired to replace Banks as a safety supervisor. In his new role, Duke was given few responsibilities and more support staff than Banks had received.

Duke also received overtime pay when he worked at the plant for Lockport and that an external candidate had been hired. Expressing surprise that she was not aware of any posting or interview process for Banks' safety supervisor role, Horton noted that Banks had notified General Motors of a readiness to return and queried whether Guthro was aware of the situation. We could be facing the posting. Horton requested that Guthro contact her so that they could talk through the situation. Apparently, they got things screwed up. After Jones approved her return to work, Banks returned to Lockport Plant in October 2014, but was reassigned to a safety representative role where she had no longer her supervisor responsibilities and was instead assigned menial tasks. Guthro announced the personnel change in a plant-wide email, which stated that Banks was now the off-shift safety representative supporting manufacturing operations on the second and third shift, and the off-shift contact person for labor relations.

Banks received a small raise, and her new position was of the same rank. She no longer had the supervisor responsibilities, was given a different title, and was assigned a less desirable shift. All these are adverse actions. Banks complained to management about her reassignment to a non-valued added position. As a safety representative, she no longer advised leadership about plant-wide safety concerns. She was not involved in the development of business plans and safety metrics, did not participate in meetings with safety supervisors from other sites, and did not supervise other employees. And although she was nominally assigned a position with labor relations, she received no training for the role, access to necessary resources, and no assignments related to the position.

In particular, Banks protested that the assignment interfered with her efforts to advance her career. During her tenure at General Motors, Banks had consistently saw opportunities for advancement. In 2011, she had been selected as a member of a General Motors talent review group in which promising employees were selected to present their goals and accomplishments to corporate management. In December 2014, Banks was offered a temporary summit at the General Motors plant in Grand Rapids, which he would gain multi-plant experience that would enhance her advancement opportunities. Banks responded that she absolutely wanted the position and began making travel arrangements one day before she was meant to leave. However, General Motors rescinded the

offer without explanation. After making further complaints about her new role, Banks was moved to the different shift and assigned some primary responsibility six months after her return to work. She was reinstated the first shift, the original shift she had worked prior to going on disability leave. OK, that was the fact pattern leading to the court complaint. So you get a very long winded. I apologize. That's what these cases are, and it's public knowledge. You can read these. On the show notes, I'll attach the copy of the very lengthy decision, but this is how court cases' decisions are created. There's a fact pattern, and then I'm going to get into now the proceedings below, and then I'll get into what the court's decision is, okay? So as to the proceedings below, banks commenced this action on November 14, 2014,

asserting claims of hostile work environment. There you go. Race and sex-based disparate treatment and retaliation in violation of Title VII of the 1964 Civil Rights Act, and also New York State Human Rights Law and 42 U.S.C. 1981, which happens to be the most powerful statute of the three. Banks alleged that the conditions at the Lockport plant created a hostile work environment, so severe or pervasive that it affected the conditions of her employment. She also alleged that the termination of her disability benefits, her delayed return to work, and her reassignment all constituted adverse actions relevant to her disparate treatment and retaliation claims. Very important statement I just made to you.

Keep that in your mindset as you move through the decision. On February 13, 2018, General Motors moved for summary judgment, as they always do, on all claims. On November 20, 2020, the District Court granted summary judgment to General Motors on the hostile work environment claim and disparate treatment claims, but denied summary judgment on the bank's retaliation claim based on the suspension of her benefits while on medical leave. Well, that was pretty obvious. But my commentary here is that in light of the fact that I read you, the hostile work environment, I mean, it went back for years. And the court will explain how to interpret it all, but it was generally hostile and pervasive. And then she also exhibited elements of disparate treatment.

So ask yourself, why did the district court judge, a federal judge, in this case, a very well-known judge, get it wrong? Well, my opinion is that employment cases are not favored in federal court. Employment cases are not favored in federal court, and the cards are stacked against the plaintiff employees in every case in federal court, in my opinion, after so many years of doing this. There is some politicization of judges on the benches. I want to be respectful, but you can read your own news reports and find out what your – come to your own opinions about that. But after that fact pattern, you should be realizing, well, wait a minute. Hmm, something's really wrong here. And why did the court get it wrong?

Because it did. And that's why you have an appeal. I'm reading an appeal decision. It was remanded back to the trial judge again to get it right. Let's move on. Where was I? As a threshold matter, the district court held that a number of incidents as Banks alleged to support her discrimination and retaliation claims were time-barred. As for Banks' hostile work environment claim,

the district court held that no reasonable jury could find that an environment at Lockport plant was hostile to a female or African-American employee. As to, and I'm sorry, I'm laughing because it is humorous that that judge did not find in that favor of the employee here in light of those facts. As to the disparate treatment and retaliation claims, the court found that Banks' reassignment was not an adverse employment action. And while her delayed return to work might constitute an adverse action, Banks had failed to establish an inference of discrimination.

discrimination. The district court held, however, that there was a genuine issue of fact as to whether General Motors committed an adverse action when, in contravention of the company policy, it suspended Banks' benefits while on a leave. General Motors moved for reconsideration with respect to the retaliation claim, initially alleging that newly discovered evidence as to Banks' disability benefits, but later changing course and arguing that summary judgment was warranted to avoid manifest injustice. On September 23, 2021, the district court reversed itself and held that because the bank's disability benefits were eventually repaid, the suspension of benefits was a trivial harm that was insufficient for support and adverse action finding. As a result, the district court granted the motion and dismissed the remaining claims.

Judgment was entered on September 24, 2021. Let's just note something here. The decision I'm reading from is dated September 2023. So the trial court decision 2021, nearly what, two years later? I mean, that's how long these cases last. I mean, how long it takes the courts to render decisions. It's just remarkable. But, you know, it does happen and people do stay the course as Ms. Banks did, as we will now discover, because now we're going to read the decision. And if you're not exhausted by now, then, well, I am, because this is how court cases are interpreted in red. I mean, it just, this is how court cases are uh interpreted by in red i mean it just this is the law uh that you set up the fact pattern you tell about the proceedings below

now you get into the discussion of the why and uh the decision uh was remanded back and reversed and made it back to the district court uh i'm going to skip a little bit here because i don't need to explain to you what summary judgment means but i'm going to get into the uh case the court says we first address the timeliness of banks's claims before turning to the merits uh applicable law under title 7 individuals alleging discrimination must file the charge with the eoc within 100 days or in states like new york have local administrative mechanisms for pursuing claims 300 days after the alleged unlawful practice so well what it means basically you have a work sharing agreement most states it claims 300 days after the alleged unlawful practice. So what it means, basically, you have a work sharing agreement in most states, it's 300 days as it's a statutory

period. You must file your claim within that. In National Railroad Passenger Corp. Mrs. Morgan, the U.S. Supreme Court case held that the word, quote, practice refers to a discrete or, I'm sorry, discrete act or a singular occurrence. And that a discrete retaliatory and discriminatory act occurred on the day that it happened. For plaintiffs alleging unlawful discrimination or retaliation, discrete acts or actions, such as termination, failure to promote, denial, or transfer, or refusal to hire, are easy to identify. And are not actionable if time barred, even if they are related to acts alleged in a timely file, timely file charges. Okay. That's your rule of law by the Supreme Court. And then it's going to do an interpretation. It's

going to provide an exception here. An exception to the 300 day rule applies. However, if the discrimination constitutes a quote continuing violation, and I need to commentary on you, I find and use the continuing violation doctrine as I need a commentary on you. I find and use the continuing violation doctrine as a court. So now we're going to explain a lot of times in order to grab facts that occurred way back in time, because in Bank's case, things occurred much earlier. A lot of really explicit commentary and N-word usage occurred. The court is going to use this doctrine to kind of grab that and make it a part of the whole entire case. And you'll see in a second, slightly different analysis for hostile work environment. Under the

continuing violation doctrine, if specific related instances of discrimination are permitted by the employer to continue unremediated for so long as to amount to a discriminatory policy or practice, if a continuing violation is found, a court must then consider all relevant actions allegedly taken pursuant to the employer's discriminatory policy or practice, including those that would otherwise be time-barred. Claims alleging a hostile work environment require a different analysis than discrimination or retaliation claims because their very nature involves repeated conduct. Unlike discrete discriminatory or retaliatory actions, instances that give rise to hostile work environment occur over a series of days or perhaps

years, and a single act of harassment may not be actionable on its own. The Morgan Court made clear that it does not matter that some of the component acts of the hostile work environment fall outside the statutory time period. So long as an act contributing to the claim occurs within the filing period, the entire time period of hostile environment may be considered by a court for the purpose of a determined liability. That's your rule of law regarding hostile work environment, how the court looks at it, okay? So when you're thinking about your own fact pattern, you can go as far back as you want on a hostile work environment claim so long as you connect them all together in one instance occurs within the timeliness of the 300-day period.

The statute of limitations for claims brought under Section 1981, amended by the Civil Rights Act of 1991, is four years. So 42 U.S.C. 1981 is a four-year statute of limitations. Under the New York State Human Rights Law, claims must be filed within three years of the adverse implement action. This three-year statute of limitations is told during the period in which a complaint is pending before the New York State Department of Human Rights or the EOC. Hope you're hanging in there with me. Okay, now the court's going to take the application of those rules and apply it to the facts of the case. As a threshold matter, the district court properly calculated the applicable limitations period for Banks' claims. The court found that the Title VII 300-day limitations period began on December 28, 2012, 300 days prior to October 24, 2023, when Banks filed her first EEOC complaint. So you've got to file with the agency,

not with the employer, but with the agency to lock down the complaint. It found that the four-year limitations period for the Section 1981 claims began on November 14, 2010, four years prior to November 14, 2014, when Banks filed her complaint. For the New York State Human Rights Law violation claims, the court found that the three-year limitations period was told during the pendency of Banks' EEOC claim from October 24, 2023 to August 19, 2014, when the right to sue letter was issued, and the applicable time period began on January 20, 2011. The district court dismissed certain of Banks' claims as untimely. In particular, it concluded that the claims based on the five key events in 2002, 2004, 2006, through 2009, and again in 2010, were untimely. were 2009 and again in 2010, were untimely. It held that the banks' claims based on graffiti found during 2010 to 2012 safety inspections were time barred. At the same time, the district court

concluded that even the events predating the relevant limitations period were timely for purpose of banks' hostile work environment claims. First, as to the hostile work environment claim, the court says, we agree with the district court that the earlier instances, that is, those that predate the applicable dates, may be considered with respect to a hostile work environment claim. General Motors contends that Banks improperly relies on the time-barred instances in support of her hostile work environment claim, but this argument is clearly contravened by the Supreme Court's decision in Morgan. argument is clearly contravened by the Supreme Court's decision in Morgan. Similarly, General Motors' emphasis on the fact that other Black and female employees were the subject of many banks' examples of discriminatory harassment is foreclosed by other precedents that make clear that a plaintiff need not be the victim of all discriminatory harassment relevant to her hostile work environment claim. In any event, if the instances prior to the limitations

period are properly considered, Banks herself was indeed subjected to epithets. Second, as to the disparate treatment and retaliation claims, there is no longer a timeless issue for us to decide, the court says, as Banks makes clear in her brief on appeal, her disparate treatment and retaliation claims are based on the following actions, which occurred on the following dates, the suspension of her medical benefits in November 22, 2013, and the delay in permitting her to return to work when she was ready to in April 2014, and third, her reassignment to a different position in October 2014. Because of all these instances occurred after the relevant limitations dates, they are not time- barred. While the district court

referred to other specific events, such as the termination and restoration of specific events, restoration of Banks's employment in 2002, the withholding of staff support in 2006 to 2009, and the withholding of error sampling data in 2010, Banks's appellate brief makes clear that she is not pursuing these actions as basis for her disparate treatment claims. Rather, as discussed above, she is relying on them as background evidence and support her hostile work environment claim because she has to. Here in this case, the hostile work environment claim is actually more powerful with the evidence than the disparate treatment claim, as you now know. And now they turn to the merits of the banks' claims. So the first issue is the hostile work environment claim. Here's

where I want you to stand and learn. Here's what the court and most courts believe what hostile work environment is. And so you are clear when hearing this that what is a hostile work environment. To survive summary judgment on a claim for hostile work environment, a plaintiff must produce evidence of the workplace that is permitted with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim's employment. Hostile work environment claims brought under Title VII, Section 1981, and New York State law are assessed using the same standards.

We employ a totality of the circumstances approach, the court says, to evaluate whether an environment is hostile and abusive, including the frequency of the discriminatory conduct, its severity, whether it is physically threatening or humiliating, or a mere offensive utterance, and whether it unreasonably interferes with an employee's work performance. Isolated instances of harassment ordinarily do not rise to this level. Most people get that wrong. When I get calls, most people are just infuriated by the isolated instances that do not rise above to the frequency level or the severity level. And that's why the issue of hostile work environment is so controversial is that most people don't understand what the standard is. They just think it's, you know, they just use the phrase. The court says, well, we have recognized that a single act can create a hostile work environment

if it in fact works a transformation of the plaintiff's workplace. It's gotta be one instance, you know, severe, pervasive. Think of rape in the workplace, okay? That's severe enough to be one instance, you know, severe, pervasive. Think of rape in the workplace. Okay, that's severe enough to be hostile. A plaintiff must show that either the single incident was extraordinary severe or that a series of incidents were sufficiently continuous and concerted to have altered the conditions of her working environment. This assessment has both an objective and subjective component. and subjective component. The misconduct shown must be severe or pervasive enough to create an objectively hostile, abusive work environment, and the victim must also subjectively perceive

that environment to be abusive. That's the rule of law. The hostility of the work environment as a whole, not the motivation of one decision maker, is the central inquiry as a hostile work environment claim, and liability is determined only by looking at these circumstances. Evidence of a general work atmosphere, as well as evidence of specific hostility directed toward the plaintiff, is an important factor in evaluating the claim. Instances that are not facially discriminatory may sometimes be used to establish a course of sex or race-based discrimination, for example,

where the same individual is accused of multiple acts of harassment, some overtly discriminatory and some not. Moreover, conduct not directly targeted at or spoken to an individual but purposely taking place in her presence can nonetheless transform her work environment into a hostile, abusive environment. hostile, abusive environment. Finally, if a plaintiff alleges that harassment arising from both race and sex-based hostility, the interplay between the two forms of harassment is pertinent to evaluating the hostile work environment claim. If a rational juror, you know, that's what they refer to as just a basic person who's serving on a jury duty, could infer that a reasonable employee could have viewed a given series of events as materially worsening her working conditions. Summary judgment is dismissing her hostile work environment claim

on the ground of lack of an adverse employment decision is inappropriate. Okay, the court, it's a lengthy decision, I apologize, but it goes on in the application. Because of the district court correctly held the continuing violations doctrine applies to Banks' hostile work environment claim, we consider incidents that occurred both prior to as well as during the limitations period in evaluating the merits. We conclude, the court says, that there is ample evidence of racial and sexual harassment to create a genuine issue of material fact as to Banks' hostile work environment claim. Well, duh. I mean, why did the district court get that wrong? The district court acknowledged that Banks presented evidence of intimidation, ridicule, and insult both to her and to other African-American and female employees in the form

of graffiti, silhouettes, Confederate flags displayed at the Lockport plant, harassment, comments, and epithets. But the court nonetheless held that a, quote, reasonable person who would not find the environment general modus law court plant was hostile or abusive to female African-American employees. I'm sorry, but this is the world I work in. And if these are your courts, that's what a federal judge said in the face of that fact pattern. It just, it drives you crazy, but let's go on. Banks, however, provides extensive and detailed examples, of course she does, of persuasive and long-term sex and race-based animosity

that a reasonable jury could find create a hostile working environment. Yeah, no shit. Summary judgment is inappropriate, whereas here admissible materials in the record make it arguable that the claims have merit. A jury could reasonably find that the alleged discriminatory behavior fomented, I like that word, fomented, a hostile work environment for two reasons. First, the jury could find that one incident was sufficiently severe

such that it altered the conditions of Banks' employment. Second, a jury could find that the discriminatory intimidation, ridicule, and insult that Banks and other employees experienced were pervasive inside the Lockport plan. Either finding would be sufficient to support a hostile work environment claim. The court then goes into the other aspect of the hostile work environment elements and gets into severe conduct. We first consider that severe conduct, a single incident, must be extraordinarily severe to support a hostile work environment, but it need not involve actual or threatened physical assault. A reasonable jury could find that Banks' altercation with Rush in 2013 over a personnel dispute rises to the threshold of sufficient severity. The court said when Rush confronted Banks over her decision to dismiss a contractor for failing to adhere to

safety protocols, a decision within her discretion as safety supervisor, he shook a rolled up document in her face and started yelling at her in a loud and aggressive manner. Rush could be heard yelling from 50 feet away. His behavior alarmed other colleagues and Banks was so intimidated by his tirade and physically threatening demeanor that she eventually withdrew the dismissal order. Another plane employee who went to Banks' office when he heard Rush yelling was so concerned that he was prepared to physically protect Banks from Rush. Guthrow, whose office was 50 feet away from the altercation, told Banks that the yelling was so loud that she thought it was a drunk employee.

Banks alleges that this incident was so severe that it compelled her to take a disability leave and to file her AWARE line or EOC complaints. We have held that a tirade involving obscene comments delivered at length loudly in a group in which the plaintiff was the only female precludes a grant summary judgment on a hostile work environment claim. And it cited a case of Howley. And the plaintiff in Howley in the court oftentimes supports its decision by star decisis by other decisions, other cases that came before it. It refers to Howley, a female firefighter was subjected to a verbal assault during a meeting by a male coworker who told her, shut the F up. You F-ing whining C-word in front of a group of male firefighters, many of whom were Howley's subordinates. In holding that this single incident could support the hostile work environment claim,

we observed that the challenged conduct directly impacted the conditions of plaintiff's employment because it fomented gender-based skepticism as the competence of a commanding officer diminished the respect accorded to the office by subordinates and impaired her ability to lead in a life-threatening circumstance when faced by firefighters, often faced by firefighters. Given the particular urgency that firefighters comply with the directives of their superiors in recognizing the potential of such tirade to erode authority, we vacated the grand summary judgment because it cannot be concluded as a matter of law that no rational juror could view that such a tirade, be concluded as a matter of law that no rational juror could view that such a tirade as humiliating resulting as an intolerable altercation or alteration of Hawley's working environment conditions. Again, a decision that the court is relying upon here to form the example for

what it's going to rely on for Ms. Banks. A jury could find that the incident involving Rush was similar to the incident involving Hawley because Rush's acts of public insubordination undermine Banks' responsibility to ensure compliance with the plant's safety protocols. Not only did the incident involve a perceived physical threat, but it directly challenged Banks' authority and compromised her ability to fulfill her supervisory duties. Indeed, Rush had neither been involved in supervising the contractor nor had he inspected the particular safety situation at issue. When considered in context of the evidence of pervasive discriminatory conduct discussed below, a jury could reasonably find that Russia's reaction to Banks' discretionary

decision was disproportionate and motivated by discriminatory animus. Far from constituting a mild isolated incident, a jury could find that the Russian incident was of such quality or quantity that a reasonable employee could find the conditions of her employment altered for the worse. In any event, even assuming that Rush's tirade is insufficiently severe by itself, it is surely relevant to analysis of the pervasiveness of the discriminatory conduct within the Lockport plant. The court goes on to the next element of hostile work environment, and it deals with pervasive conduct. I'm sorry, pervasive conduct.

Moving to pervasive conduct, a reasonable jury could find that the discriminatory conduct was sufficiently pervasive and widespread within the Lockport plant to have created a hostile work environment. To be deemed pervasive, the challenged instances must be more than episodic. They must be sufficiently continuous and concerted. Although the district court found that the discriminatory incidences were isolated and not extremely serious, either taken singularly or collectively, we conclude that a reasonable jury could find that the incidents indeed evince a culture of hostility towards black and female employees.

Of course they do. Banks was the recipient of sexually demeaning language, and as her female colleagues, it worked in a setting where images of pinup women, sexually explicit silhouettes, were common. of pinup women sexually explicit silhouettes were common from 2006 to 2016. Banks and her other black employees saw nooses, confederate flags, and other racially offensive material around the plant, including a black test dummy seated in a vehicle wearing minimal tattered clothes. As the district court recognized, black employees were subjected to a steady barrage of racial insult and epithet. Specifically, several colleagues testified to being called the N-word and civil back and having their work deemed N-erized. And I'm not using the right word. You know what I mean. A jury could reasonably find

that the placement of these three nooses that are near the workstations of Black employees within the Lockport plant, even over the course of 11 years, was sufficiently severe, I'm sorry, pervasive to support a House Work Amendment claim. I mean, 11 years in the district court found it did not. I mean, it's just, it's laughable. There can be little doubt as such a symbol is significantly more egregious than the utterance of a racial joke. Instead, the noose is among the most repugnant of all racist symbols

because it is itself an instrument of violence. Like a slave master's whip, the image of a noose is deeply part of this country's collective consciousness and history, and any further explanation of how one could infer a racial motive appears quite unnecessary. It goes on to say, i'm reading parentheticals here um this decision so at this juncture it's written in 2023 it's it's post the you know the debacle and nonsense occurred in in the um social justice reckoning we've had in this country over the last three years.

And it's just, you can see the judge, in this case, Dr. Judge Chin, who's writing this, he's making points with using language and identifying what the noose means in our American culture and the like. And you often find judges doing this. It's a piece of history. So the case you're reading and hearing is a piece of history, and it's giving direction to anyone reading it, the importance of what happened here, especially the district court judge who has got to go reconcile this on remand. A reasonable jury could find that even a single placement of this object, imbued with its historical gravity as a symbol and tool of actual violence directly at the workstation of a Black employee could

amount to severe conduct sufficient to support an inference that the workplace is hostile to Black employees." Well, of course. Again, more parenthetical. Here, Black employees found nooses placed deliberately at their workstations on three separate occasions. A reasonable jury could surely find that the discovery of multiple nooses within the Lockport plant created a hostile work environment. Well, no shit. Yet the district court omitted any mention of these nooses, evidence of each which exists in the form of deposition testimony, internal investigative reports, and photographs.

exists in the form of deposition testimony, internal investigative reports, and photographs. Given the repugnance of this object and its direct implication of racial animus and violence, a reasonable jury could surely conclude that the discovery of multiple nooses within Banks's workplace constituted pervasive discrimination that altered the conditions of her employment and created an abusive working environment. Second, multiple circuit courts have emphasized that perhaps no single act can be more quickly altered to the conditions of employment and create an abusive work environment than the use of an unambiguously racial epithet such as the N-word. The epithet has been described as a term that sums up all the bitter years of insult and struggle in America, a pure anathema to the African Americans, and probably the most offensive word in the English language. And it goes on, I'm sorry, there's parenthetical. Courts have also held that the use of the word monkey or derivative terms is similarly odious

and that their use within the workplace constitutes compelling evidence of a racially hostile work environment. More parentheticals. The district court's description of the isolated epithets levied against banks suggested it viewed these comments as, quote, stray remarks. This is an important analysis I'm going to mention to you because stray remarks are common. to because stray remarks are common. Here, the court goes on to say that the stray remarks doctrine is by no means dispositive. While it is true that the stray remarks of a decision maker without more cannot prove a claim of employment discrimination, we have held that when other indicia of discrimination are properly presented, the remarks can no longer be deemed stray and the jury has a

right to conclude that they bear a more ominous significance. In assessing the hostile work environment claim, the emphasis is on the hostility of the work environment as a whole and a plaintiff must show merely that the discriminatory incidences were sufficiently continuous and concerted to have altered the conditions of the employee's working environment. Again, you just keep hearing the same redundancy. I don't know why the court keeps on doing this. In addition, it is not germane that the racial epithets were directed at other employees instead of banks. The district court focused on the fact that other employees endured a steady barrage of

racial insult and epithet while banks were subject to non-ethnic offending terms, such as being called an idiot at a meeting where she was not present. The court noted that while other black co-workers were called the N-word by white co-workers, Banks did not personally endure such epithets within the limitations period. Yet the mere fact that the plaintiff was not present when a racially derogatory comment was made will not render the comment irrelevant to her hostile work environment claim. That's important if you understand. So other people's claims are important to your claim.

So other people being called the N-word, make it a part of your narrative. What it does, basically, the court's saying is the work environment is so charged with racial bias that it's going to infect it like a disease. Just as racial epithet need not be directed at a plaintiff in order to contribute to a hostile work environment, Just as racial epithet need not be directed at a plaintiff in order to contribute to a hostile work environment, the fact that a plaintiff learns secondhand of racially derogatory comment or joke by a fellow employee or supervisor can also impact the work environment. Moreover, as we have previously held, that incidents involving other employees, while they may be of limited probative value, cannot be ignored on summary judgment grounds. Instead, whether the plaintiff was aware of the incidents during the employment, and more significantly, whether in light of these incidents that the incidents the plaintiff experienced were more directly would reasonably be perceived and were perceived as hostile or abusive are factual issues more appropriate for a trial or fact, meaning a jury. The court goes into the tangible harm, which is another element of hostile working environment. Again, I apologize. This is what the court's doing in its lengthy decision.

Finally, the district court erred in focusing on the lack of tangible harm that Banks incurred from the discriminatory harassment. Despite evidence of Banks' need for multiple medical leaves and stress and anxiety, her psychological treatment and her need for anti-anxiety medication, the district court dismissed her claim because it found that Banks suffered no adverse consequences, save her stress claims. The Supreme Court made clear in Harris, however, that Title VII does not require concrete psychological harm for claim to be actionable as the statute clearly bars conduct that would seriously affect a reasonable person's

psychological well-being. I want to just put a footnote here. You got to know something in claims for everything other than sex discrimination. In sex discrimination, you only have emotional distress. In every other claim, you can't have emotional distress. It's a common law claim. But the court, and as you see here, references the hostile, the emotional aspect, the toll it takes on employees, the victims. And it says that they, under Title VII, they experience emotional distress. So you have this implicit emotional distress buried in the statute and interpreted. So it's all kind of crazy nonsense, but understand something that in race cases, no emotional distress. Sex cases, yes, emotional

distress, but the jury's still out on the issue. It's kind of a wild west of jurisprudence in my mind. The court goes on, moreover, the language of Title VII is not limited to economic or tangible discrimination. It goes on to say, tangible effects include detrimental impacts on the employee's job performance, discouraging employees from staying on the job, or other effects that prevent the employees from advancing in their careers. Yet, even without regard to these tangible effects, the very fact that the discriminatory conduct was so severe or pervasive that it created a work environment abusive to employees because of their race, gender, and religion or national origin offends Title VII's broad rule of workplace equality.

Let me make a note here. This is 2024. Last June, July, I believe, the Supreme Court of the United States abolished affirmative action. The reason why I did that, folks, is because it said you cannot use race at all in making preferences, decisions, okay? It's going to hit the employment setting as well because it has to meet this standard, workplace equality under Title VII, okay, without regard to race. So you have this aspect called DEI out there that's being slightly diminished, but it was there. It made people uncomfortable, people who were basically not a black or brown minority, but in fact, who are white. But nonetheless, it's coming to a court near you, and DEI is going to die and has to comport

with basically zero tolerance about any selection about race or sex, et cetera, across the board. And that's a Supreme Court decision that will be coming up shortly. There is ample evidence from which a court with a reasonable jury could conclude that Banks found the environment at Lockport plant to be hostile. This is a subjective aspect, given that Banks took multiple medical leaves, sought psychological treatment, and was prescribed anti-anxiety medication to cope with the stress and anxiety she incurred from the discriminatory harassment. I'm actually going to shorten this podcast a little bit and say that the case, obviously, the court reversed the district court decision, and the case is going back to the district

court level. And I'll put in the post notes the aspect, the court decision I'm reading from so you can read it. But it was important to bring aspect, the court decision I'm reading from so you can read it. But it was important to bring to light the hostile work environment claim for you so you can hear it in real life. It's how the court interprets these cases. Now you've heard it. We know that Banks was harmed by this and experienced a hostile work environment. She also experienced disparate treatment and retaliation, which you can read yourself.

But that was what I wanted to get across to you. A real-life story happened to somebody pretty outrageous, very, very severe, and now you know how the court dealt with it, okay? Have a great day. Talk to you soon. If you like the Employee Survival Guide, I'd really encourage you to leave a review. We try really hard to produce information to you that's informative, that's timely, that you can actually use and solve problems on your own and at your employment. So if you'd like to leave a review anywhere you listen to our podcast, please do so. And leave five stars because anything less than five is really not as good, right?

I'll keep it up. I'll keep the standards up. I'll keep the information flowing at you. If you'd like to send me an email and ask me a question, I'll actually review it and post it on there. You can send it to mcaryu at capclaw.com. That's capclaw.com.