First, to establish constructive discharge due to intolerable working conditions, an employee must show the employer intentionally permitted working conditions so intolerable that a reasonable person in the employee’s position would have been compelled to resign. Green v. Brennan, 578 U.S. 547, 555 (2016) (federal law); Turner v. Anheuser-Busch, Inc., 7 Cal. 4th 1238, 1248-49 (1994) (state law). The working conditions must be so “severe” as to compel a reasonable employee to resign. See Green, 578 U.S. at 558; accord Cloud v. Casey, 76 Cal. App. 4th 895, 902 (1999) (“intolerable or aggravated”).
Essentially, the conditions must be based on a protected class and be so bad that the employee has to walk out the door right then and there – cannot tolerate it a minute longer. Best Race Discrimination Attorney Blogs on Point:Collins doesn’t clearly identify what he believes was the protected conduct he engaged in. At times he suggests that it was giving interviews to the school district and the third-party investigator about the attendance-fraud scheme. But Collins doesn’t explain how those interviews had anything to do with race. In fact, he admitted at his deposition that the investigation was about attendance fraud and “was not an investigation for race discrimination.” Additionally, he told the Equal Employment Opportunity Commission after his termination that the school district retaliated against him “because of the information I possess.” When asked to clarify at his deposition, he said it was “for having the—the attendance names.”
Id. at *3. The school was legally allowed to retaliate against Collins for engaging in a fraud scheme. Collins was not engaging in protected conduct under Title VII when he was interviewed or provided witness information regarding the attendance fraud scheme. As a result, his claims for wrongful termination based on retaliation were dismissed. Best Retaliation Lawyer Blogs on Point:Harassment Based on Gender Identity. Jennifer, a cashier at a fast food restaurant who identifies as female, alleges that supervisors, coworkers, and customers regularly and intentionally misgender her. One of her supervisors, Allison, frequently uses Jennifer’s prior male name, male pronouns, and “dude” when referring to Jennifer, despite Jennifer’s request for Allison to use her correct name and pronouns; other managers also intentionally refer to Jennifer as “he.” Coworkers have asked Jennifer questions about her sexual orientation and anatomy and asserted that she was not female. Customers also have intentionally misgendered Jennifer and made threatening statements to her, but her supervisors did not address the harassment and instead reassigned her to duties outside of the view of customers. Based on these facts, Jennifer has alleged harassment based on her gender identity.
This new guidance is the first document the EEOC commissioners have voted upon and issued on harassment since 1999. If this updated guidance is finalized, it will supersede the 1999 and prior guidance. The EEOC guidance is sub-regulatory — meaning it does not carry the weight of statutes or regulations — but it will be influential during EEOC investigations and litigation.Second, multiple circuit courts have emphasized that “perhaps no single act can more quickly alter the conditions of employment and create an abusive working environment than the use of an unambiguously racial epithet such as ‘n****r.’ ” Rivera v. Rochester Genesee Reg'l Transp. Auth., 743 F.3d 11, 24 (2d Cir. 2014) (quoting Richardson v. New York State Dep't of Corr. Serv., 180 F.3d 426, 439 (2d Cir. 1999)); see also Rodgers v. Western-Southern Life Ins. Co., 12 F.3d 668, 675 (7th Cir. 1993); Spriggs v. Diamond Auto Glass, 242 F.3d 179, 185 (4th Cir. 2001). 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 African-Americans, and probably the most offensive word in English.’ ” Woods v. Cantrell, 29 F.4th 284, 285 (5th Cir. 2022) (quoting Ayissi-Etoh v. Fannie Mae, 712 F.3d 572, 580 (D.C. Cir. 2013) (Kavanaugh, J., concurring)) (alterations adopted). Courts have also held that 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. See Spriggs, 242 F.3d at 185 (“To suggest that a human being's physical appearance is essentially a caricature ... goes far beyond the merely unflattering; it is degrading and humiliating in the extreme.”); Walker v. Thompson, 214 F.3d 615, 626 (5th Cir. 2000) (holding that a triable issue of fact existed on a hostile work environment claim where African American employees were subjected to, inter alia, “patently offensive remarks regarding the[ir] hair” and “conversations in which a co-worker and supervisor used the word ‘n****r’ ”).
Banks at *13. Beyond the racial epithets that the Court of Appeals held could individually create a hostile workplace, it similarly pointed to the singular presentation of a noose in the work environment and held:“[T]here can be little doubt that such a symbol is significantly more egregious than the utterance of a racist joke.” Williams, 154 F. Supp. 2d at 823. Instead, “the noose is among the most repugnant of all racist symbols, because it is itself an instrument of violence.” Id. at 824. “Like ‘a slave-masters whip,’ the image of a noose is ‘deeply a part of this country's collective consciousness and history, [and] any further explanation of how one could infer a racial motive appears quite unnecessary.’ ” Tademy v. Union Pacific Corp., 614 F.3d 1132, 1142 (10th Cir. 2008) (quoting Johnson v. Potter, 177 F. Supp. 2d 961, 965 (D. Minn. 2001)) (alterations adopted); see also Vance v. S. Bell Tel. & Tel. Co., 863 F.2d 1503, 1511 n.4 (11th Cir. 1989) (“It is hard to imagine an incident of this sort taking place in 1984. The grossness of hanging an object resembling a noose at the work station of a [B]lack female is self-evident.”), abrogated on other grounds by Harris, 510 U.S. at 20, 114 S.Ct. 367; Adams v. Austal, USA, LLC, 754 F.3d 1240, 1253 (11th Cir. 2014) (observing that the display of a noose within a workplace constitutes “a severe form of racial harassment”).
A reasonable jury could find that even a single placement of this object -- imbued as it is with 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. See, e.g., Williams, 154 F. Supp. 2d at 822-26 (denying motion to dismiss because a single instance of a noose displayed in a White supervisor's office was sufficiently severe to support a hostile work environment claim); Tademy, 614 F.3d at 1141-42 (reversing a grant of summary judgment because a jury could find that the placement of a noose near a clock, “where it was most likely to be seen and where it could have maximum effect,” could support a hostile work environment claim).
Banks at *12-13. The Second Circuit pointed to another example found in Howley v. Town of Stratford, 217 F.3d 141, 154 (2d Cir. 2000), in which the Second Circuit Court of Appeals held that a jury could reasonably find a hostile work environment where a female firefighter, was subjected to a singular incident during a meeting by a male coworker who told her to “shut the f**k up, you f***ing whining c***t” in front of group of male firefighters, many of whom were her subordinates. Best Race Harassment Lawyer Blogs on Point:[A] reasonable jury could find that the incidents indeed evinced a culture of hostility towards Black and female employees. Banks was the recipient of sexually demeaning language, as were her female colleagues, and worked in a setting where images of pin-up women and sexually explicit silhouettes were common. From 2006 to 2016, Banks and other Black employees saw nooses, Confederate flags, and other racially offensive material around the plant, including a Black test dummy seated on a vehicle wearing minimal and tattered clothes.11 As the district court recognized, Black colleagues were subjected to “a steady barrage of racial insult and epithet.” Id. at *15. Specifically, several colleagues testified to being called “n****r” and “silverback” and having their work deemed “n****rized.” J. App'x at 540.
Banks at *12. Best Sexual Harssment Lawyer Blogs on Point: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:As to the promotion, Qualtek explains that Carlson was not promoted because she was unwilling to relocate to Pennsylvania. Carlson has not shown that this non-retaliatory reason was pretextual. Carlson was repeatedly told that the position would require her to be in Pennsylvania and the two men ultimately hired for the position both worked in Qualtek’s Pennsylvania headquarters. Indeed, Carlson does not dispute that the position was in Pennsylvania or that she was unwilling to relocate there. Rather, she contends that she could effectively do the job from Minnesota, and that her supervisors recommended her for a promotion while she resided there. Even if these contentions are correct, they do not show any “weaknesses, implausibilities, inconsistencies, incoherences, or contradictions” in Qualtek’s proffered non-retaliatory reason, Daniels v. Sch. Dist. of Phila., 776 F.3d 181, 199 (3d Cir. 2015), and therefore Carlson’s failure to promote claim lacks merit.
Id. at *3 (footnotes omitted). Best Gender Discrimination Lawyer Blogs on Point: