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The Best Employment Discrimination Cases Still Have Risk

by | Sep 14, 2023 | Employment Discrimination, Employment Law, Federal Law Update, Gender Discrimination, Race Discrimination, Sexual Harassment |

Today, we focus on hostile environment claims based on both race/color discrimination and gender discrimination under Title VII of the Civil Rights Act of 1964. To do so, we consider the recent case of Banks v. Gen. Motors, LLC, No. 21-2640, 2023 WL 5761361 (2d Cir. Sept. 7, 2023), which was decided by the United States Court of Appeals for the Second Circuit. Before we get into the facts and the holding, it is important to understand that the employee, Billie R. Banks, who is a Black woman, filed her charge with the Equal Employment Opportunity Commission (“EEOC”) on October 24, 2013 and then filed her lawsuit on November 14, 2014 – meaning that the legal battle has been ongoing for more than a decade.

Now let’s look at the facts of what occurred. Banks was one of six salaried Black employees out of approximately 180 salaried employees at that plant. Evidence was presented through depositions, documents, photographs and other evidence that the following occurred during Bank’s employment at GM:

  • In 2004, a manager called Banks a “dumb n*gg*r” during a meeting in front of other employees.
  • Starting in 2006, Banks observed racist and sexist graffiti throughout the workplace, including the word “n*gg*r”; various sexual slurs; and sexually explicit pictures.
  • Starting in 2009, other employees were permitted to display the confederate flag on their vehicles and clothing worn into the workplace.
  • During two training session in 2013, the same White colleague openly called Banks an “idiot” and challenged her intelligence in front of other employees. When Banks complained, the human resources and training manager told her: “You know why they do this to you? … Because you are black and female.”
  • In August 2013, Tom Rush, a White manager who had permitted racist conduct, physically threatened Banks by yelling loudly and swinging thick, rolled-up document toward her face. Even though the ensuing investigation determined that Rush acted inappropriately, he received no discipline or even a note to his file.
  • In September 2014, a Black rescue dummy was dressed as a slave and placed in a plant vehicle.
  • At an April 2015 CPR class, the White instructor gave two examples of when CPR might be needed. First, he created an offensive racial stereotype, pointing to Banks as “an African American who, after using and overdosing on drugs at home” would need CPR. The White instructor then point to an “Asian American coworker as an example, directing the class to assume the coworker “gets electrocuted by his wok and rice flies everywhere.” During the training, a different safety representative referred to the absorbent materials on the plant floor as “naps” and offensively remarked to Banks that a fellow Black male employee might have used them for his hair. This conduct was reported, confirmed, and resulted in absolutely no disciplinary actions against the offenders.
  • In June 2015, Banks reported another employee for mocking her in an email by using Ebonics.
  • Further, GM refused to discipline workers who were routinely insubordinate to Banks in her role as a Safety Supervisor while providing support need to White supervisors. Likewise, Banks was not provided the support staff despite prior White Safety Supervisors having been assigned several direct reports.
  • Other Black employees shared with Banks and reported that they were called a “n*gg*r”, “monkey”, and “silverback”, by White employees, and that because it kept going with such frequency, including one reporting that it was an everyday occurrence, they stopped reporting it.
  • Another Black employee reported that a White coworker regularly described subpar work as “n*gg*rized.”
  • Between 2006 and 2017, Black employees reported three distinct instances where nooses were found either directly at or in close proximity to their work areas.

As a result of the emotional impact from the above, Banks to a disability leave from work. When she was ready to return, Banks submitted a note from her treating psychiatrist and obtained approval from the plant doctor, Dr. Ulatowski, pursuant to the standard plant practice. However, GM forced Reed to consult Dr. Jones, its retained psychiatrist who had previously opined that Reed did not need leave. This time, Dr. Jones opined that he doubted Banks’ readiness to return while pointing to EEOC (which is completely improper and irrelevant to a medical examination) and commenting that Banks lacked “the conflict resolution skills to handle th[e] environment” at the plant and that she “seemed to be emotional [when] talking about the incidents.” Dr. Jones refused to approve her return to work until after a subsequent visit when he incorrectly believed and noted in his records that Banks had lost at the EEOC.

When finally returning to work, GM demoted Banks contrary to established policy to a lower position, assigned her menial tasks, and put her on a less favorable shift.

Okay, with that picture in mind, it should be very clear to almost everyone that, if true, this should qualify as racially hostile work environment. United States District Judge William M. Skretny of the Western District of New York disagreed and held that the above could never be considered a racially or sexually hostile work environment! Don’t believe me? Here is Judge Skretny’s own words, where, after rejecting some events as being untimely, he further held:

Looking at the totality of the circumstances—including the frequency of the discriminatory conduct, its severity, whether there was any physical threats or humiliation, whether her work performance was unreasonably interfered with … Plaintiff fails to establish a prima facie case for a hostile work environment. She does not claim that she was ever threatened. … While frequent, the incidents alleged are not severe, especially the incidents that occurred to Plaintiff directly. A reasonable person would not find the environment at General Motors’s Lockport plant was hostile or abusive to female or African American employees. Plaintiff only presents isolated incidents, not extremely serious either taken singly or collectively. These incidents do not suffice to state a hostile work environment claim.

Banks v. Gen. Motors, LLC, No. 14-CV-970S, 2020 WL 6827707, at *16 (W.D.N.Y. Nov. 20, 2020).

Wow. Just wow.

Our employment discrimination lawyers always counsel our clients that there is risk in every case, no matter how strong the evidence or how horrible the conduct. But this … just wow.

Thankfully, Banks was able to appeal, and the United States Court of Appeals for the Second Circuit reversed this decision (which we discuss in our next blog) – but that now means that Banks get the opportunity to go back down to this same judge, who will preside over the jury trial. As discussed above, it is now over a decade to get to this point after the case sat for years in front of this judge waiting for this ruling and then years more on an appeal.

The good news is that some judges make mistakes in favor of or lean more favorably towards employees. Employers face these risks as well. Moreover, this case, given its length, the amount of discovery and briefing and the appeal, has probably cost GM well over $200,000 with the prospect of returning to the District Court to get counsel back up to speed for trial. Many of their witnesses, who were likely favorable because they worked there at the beginning of the case, may have moved on to new jobs in the last decade or become dissatisfied with GM for their own reasons.

Everyone faces risk in employment litigation, no matter how strongly you feel about your case.

Best Racially Hostile Work Environment Lawyer Blogs on Point:

Why should you call Spitz now to help with your race discrimination and hostile work environment claims?

Selecting the right employment discrimination law firm is a critical step in pursuing a race discrimination, sexual harassment, or hostile work environment claim. It’s a complex area of law and having the right expertise can significantly impact the outcome of your case. This is where Spitz, The Employee’s Law Firm, distinguishes itself.

With a laser focus on employee rights, Spitz brings a level of specialization that sets us apart. Unlike general practice firms, our employment discrimination lawyers have honed their skills and knowledge specifically in this niche, giving them a deep understanding of the intricacies involved in discrimination, harassment, and hostile work environment claims.

Furthermore, our track record speaks volumes.

One of the key advantages of choosing Spitz lies in their extensive resources. Discrimination cases often demand a range of resources, from expert witnesses to specialized investigators. We are one of the firm firms in the country with the resources to go toe to toe with any employment law defense firms that your employer might hire.

In essence, choosing Spitz means choosing a partner with a proven track record, specialized focus, ample resources, and a client-centered approach. With our attorneys by your side, you can face the complexities of a hostile work environment claim with confidence, knowing that you have a dedicated and skilled team fighting for your rights and well-being.

Best Employee’s Rights Law Firm Blogs on Point:


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If you are facing any potential legal issues, including discrimination, harassment, or a hostile work environment at your place of employment, you best course of action is to speak directly with qualified employment law attorneys.


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