Speaker 1: 0:20

It's Mark here. 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. I thought that, aside from my statement about what I think it is and what I said in the podcast, I wanted to do something different today. I went out and tried to find a case that discussed hostile work environment. I found one that was quite elaborate and I wanted to do something different.

Speaker 1: 1:06

Today is actually share a case. It happened by a decision by the Second Circuit Court of Appeals, which is besides the Ninth Circuit in California. The Second Circuit is pre-eminent, federal court. It defines the law of land in our country. The case was Billy Banks versus General Motors. I'm going to get into it. It's involving a race case, but it has the hostile work environment discussion. As a summary, I will describe to you what happened 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.

Speaker 1: 1:53

There's mechanical elements to cases that judges have to go through. It's the law. We refer to laws by statute, laws by cases. I refer to the oftentimes the rule of law. Here you have a precedent being set by the Second Circuit Court of Appeals. The dated the decision was September 7, 2023. It was an appeal from the Western District, I believe, of New York. Plaintiff in the case, an African-American woman born actually against her employer on the Title VII and 1964 Civil Rights Act Section 1981 of the 42 USC, section 1981. It's a race-based statute from Reconstruction Era in the Civil War that's used now in employment cases and also in New York State Human Rights Law. The woman lost at the district court level at summary judgment. 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. That's a significant aspect and you'd understand.

Speaker 1: 3:12

I'm going to get into the case about Billy Banks. 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. Listen closely to the facts, listen to the law that the court goes into and you're going to learn a lot about what hostile working environment is. And also, she had other claims having to do with retaliation and disparate treatment. So let's begin.

Speaker 1: 3:36

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.

Speaker 1: 4:50

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. Observe racist and sexist graffiti at the plant, including the N-word. 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 Sexual slurs, as well as sexually explicit pin-up calendars and posters, starting in 2006. Observe 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 effin' cruel in trying to intimidate women. It's illegal, obviously.

Speaker 1: 6:00

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.

Speaker 1: 7:00

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 in subsequent complaint to management, but the representative was not disciplined. During that same class, the 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 walk and rice flies everywhere. End quote. Not making the 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.

Speaker 1: 7:51

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 Rastlin. You know what I mean. Wwf professional Rastlin. Take that to the bank. Billy Banks, lol. And he puts in paransiac. That couldn't resist. End quote, end paransiac. Banks responded to the colleague to say that she believed he was mocking her using ebonics I'm sorry of an acroler associated by some African Americans.

Speaker 1: 8:36

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 and Quotama Idiot in front of other employees. During another training session in May 2013, the same colleague, again called Banks, and Quotama Idiot told the attendees that she doesn't know what the hell she's doing 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 and question mark because you're our black female. Again, I'm not making this up. The court now says incidents involving other employees.

Speaker 1: 9:47

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 and a parent, 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 I can't say, it's N-erised, you fill in blank. And another reported that he was called N-word every day. Of the approximately 180 salary employees at the Lockport 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.

Speaker 1: 10:51

On three separate occasions from 2006 to 2017, black employees reported that NUSES had been placed directly at or near their work sites. Their first NUSES incident occurred in 2006, when David Luckey, a black male employee, reported finding a NUSES placed in his toolbox. The NUSES was approximately three feet long and was made of thick rope. The second NUSES incident occurred in July 2014, when Luckey again reported seeing NUSES, this time hanging from a crane near the plant's weld shop. The NUSES was also made of thick rope and was hung approximately eight feet from the ground. Another black colleague, al Birch, relayed the incident to banks shortly after it happened, as she was on a disability leave.

Speaker 1: 11:34

The third NUSES incident occurred in December 2017, when Daniel Marsh, another black colleague, reported finding a NUSES placed on a tugger or a motorized vehicle that has used around the job site. The tugger had been temporarily assigned to him and he was covering the shift of another colleague. The NUSES 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, luckey 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. Luckey reported the incident and alleged that the display referenced slavery. Banks and other employees learned of the incident shortly thereafter and similarly took offense. The record does not indicate the outcome of Luckey's complaint.

Speaker 1: 12:32

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 a wear line, a third party reporting service utilized by General Motors. A wear line complaint alleged that banks had been subjected to race and sex discrimination and specifically detailed the incident involving Rush. A wear line began its investigation into the matter on September 20, 2013, but closed the investigation a few months later. A wear line 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.

Speaker 1: 13:13

On October 14, 2013,. October 24, 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 share agreement so you can file typically with the EEOC, which I would, and it gets automatically filed with the state agency. But on the four and five 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 EEOC charge in December 9, 2013, and again on July 10, 2014,. The EEOC issued banks a notice for a dissu letter on August 19, 2014. The importance there is when the EEOC issues a notice for a dissu this is my commentary that you have 90 days to file a suit or you waive your claims under Title VII is not a requirement under Section 42 of the United States of America. That has a four-year sexual limitations, which the court will get into in a second.

Speaker 1: 14:17

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, discriminatory environment at Lockport Plant. The suspension of disability leave benefits. General Motors policy governing disability leave provides the 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. On November 22, 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.

Speaker 1: 15:03

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 Guthrow, the plant's personnel director, in December 2013, guthrow 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 Orissa for short-term disability benefits to substantially document, medically speaking that's my commentary In order to hit and hear 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, rectified actively, in two payments the first in January 31, 2014 and another in February 15, 2014.

Speaker 1: 16:58

The delayed return to work the court references. 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.

Speaker 1: 17:49

When Banks replied that she had not and remarked that the questioning was inappropriate, dr Jones responded that her complaints of workplace discrimination were not sufficient to sustain a mental breakdown like he should know about it. 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 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 EOC a war line and workers' compensation complaints, the last of which she 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 court 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 September 2014 during a call. Dr Jones commented that Banks had quote lost her EOC. Aware claims acknowledging General Motors had not found anything. Dr Jones approved Banks return to work the reassignment the court says.

Speaker 1: 19:13

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 amendment team, but on January 29, 2014, four months after Banks began her disability leave, guthro approved the public posting of Banks's position without obtaining the requisite approval from the relevant human resources team. Barrasco also sent a plant-wide email to salaried employees advertising the open position. Banks did not receive the email, despite being included in the plant-wide email distribution. On March 29, 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 outside of his scheduled shift, which Banks had never received. A few weeks later, maureen Horton, the corporate human resources manager for global health and safety, emailed Guthro about the situation, noting that it appears that a safety-treatment position was posted for law poor 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 return to inquiry 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.

Speaker 1: 20:54

Banks returned to the 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, 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 lest her role 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. 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.

Speaker 1: 22:09

During her tenure at General Motors, banks had consistently saw opportunities for advancement. In 2011, she had been selected as a group I'm sorry, 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 of 2014, banks was offered a temporary summit at the General Motors plant and grant records, which she 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.

Speaker 1: 23:07

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.

Speaker 1: 23:33

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 and violation of Title VII and 64 Civil Rights Act, and also the New York State Human Rights Law and 42 USC 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 can constitute adverse actions relevant to her disparate treatment and retaliation claims. Very important statement I just made to you. Keep that in your mind 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.

Speaker 1: 24:41

Well, that was pretty obvious. But here my commentary here is that, in light of the fact that I've 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 and the stack is cards are stacked against the plaintiff employees in every case in federal court. In my opinion, after so many years of doing this, there are some politicization of judges on the benches. I want to be respectful, but you can read your own news reports and find out what you have come to your own opinions about that. But after that fact pattern, you should be realizing well, wait a minute, 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. Dorothy BLOLOFF, where was I? As a threshold meta?

Speaker 1: 25:55

The district court held that a number of incidents as banks alleged to support their discrimination, 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 Plamp 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 in retaliation claims, the court found that banks' reassignment was not an adverse implement action and, while her delayed return to work might constitute an adverse action, banks had failed to establish an inference of discrimination. The district court held, however, that there was a genuineness to effect 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 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 banks'—because of banks' disability benefits were eventually repaid. The suspension of benefits was a trivial harm that was insufficient to support an adverse action finding. As a result, the district court granted the motion and dismissed the remaining claims. Judgment was entered on January—September 24, 2021.

Speaker 1: 27:20

Let's just note something here the decision that 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 it does happen. And people do say the course, as Ms Banks did, because we will now discover, because now we're going to read the decision. 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 the law that you set up, the fact pattern, you tell about the proceedings below, and now you get into the discussion of the why, and the decision was remanded back and reversed and amended back to the district court. I'm going to skip a little bit here because I don't need to explain to you what summary of judgment means, but I'm going to get into the case. The court says we first addressed the timeliness of Banks' claims before turning to the merits Applicable law.

Speaker 1: 28:23

Under Title VII, 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 what it means basically, you have a work sharing agreement. Most states it's 300 days as it's a statutory period. That's why you claim within that. In National Railroad Passengers Court, mrs Morgan, the US Supreme Court case held that the word quote practice refers to a discrete act or singular occurrence and that a discrete retaliatory and discriminatory act occurred on the day that it happened. For plaintiffs alleging unlawful discrimination and 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 charges. That's your rule of law by the Supreme Court and 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 constates a quote continuing violation and I can use the commentary on you.

Speaker 1: 29:37

I find and use the continuing violation doctrine as a court. Now we're going to explain a lot of times in order to grab facts that occurred way back in time, because in Banks 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 grab that and make it a part of the whole entire case and you'll see in a second Slightly different analysis for hostile and working environment. Consider the continuing violation doctrine. If specific related instances of discrimination are permitted by the employer to continue un-remediated 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.

Speaker 1: 30:26

Claims alleging a hostile working environment require a different analysis than discrimination or retaliation claims, because there are very nature-involved, repeated conduct. Unlike discriminatory or retaliatory actions, instances that give rise to hostile working 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 working 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 working environment, how the court looks at it. So when you're thinking about your own fact pattern, you can go as far as facts you want on a hostile working environment claim, so long as you connect them all together in one instance occurs within the timeliness of the 300-day period.

Speaker 1: 31:23

The statute of limitations for claims brought under section 1991, amended by the Civil Rights Act of 1991, is four years. So 42 SC 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 implementation. 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.

Speaker 1: 31:59

District court properly calculated the applicable limitations period for banks as claims. The court found that the Title VII 300-day limitations period began on December 28, 2012, 300 days prior to the October 24, 2023, when banks filed her first EOC 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 1991 claims began on November 14, 2010, four years prior to the November 14, 2014, when banks filed her complaint For the New York State Human Rights Law of Violation claims. The court found that the three-year limitations period was told during the penance of banks' EOC claim, from October 24, 2023 to August 19, 2014, when the Rights of Sue letter was issued, and the applicable time period began on January 20, 2011.

Speaker 1: 33:02

The district court dismissed certain banks' claims as untimely. In particular, it concluded that claims based on the five key events in 2002, 2004, 2006, or 2009, and again in 2010 were untimely. It held that the banks' claims based on graffiti found during 2010, 2012, safety inspections were time-barred. At the same time, the district court included that even the events predated in the relevant limitations period were timely for purposes of banks' hostile work environment claims.

Speaker 1: 33:32

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 spring court 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 Pacific events, such as the termination and restoration of specific events restoration of banks' employment in 2002, the withholding of staff support in 2006 to 2009,. And the withholding of air sampling data in 2010, banks' 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.

Speaker 1: 35:28

In this case, the hostile work environment claim is actually more powerful with the evidence than the disparate treatment claim, as you now know. Now they turn to the merits of the bank's claims. The first issue is the hostile work environment claim. Here's where I want you to understand 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 the what is a hostile work environment? To survive some read judgment on a claim for hostile work environment, a plaintiff must produce evidence of the workplace as permitted with discriminatory intimidation, ridicule and insult that is dissuasionally severe or pervasive to alter the conditions of the victim's employment.

Speaker 1: 36:11

Hostile work environment claims brought into title seven, 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 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. Okay, 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.

Speaker 1: 37:05

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, like think of rape in the workplace. Okay, that's severe enough to be a 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. 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.

Speaker 1: 37:48

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 liabilities 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 the value of 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. Finally, if a plaintiff alleges that harassment arises from both race and sex-based hostility, the interplay between the two forms of harassment is pertinent to the value within the hostile work environment claim. If a rational juror you that's what I refer to as 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 or working conditions. So my judgment is dismissing her hostile work environment claim on the ground of lack of an ever-simplement decision isn't inappropriate.

Speaker 1: 39:07

Okay, the court it's a lengthy decision. I apologize but it goes on in the application Because of the district court correctly held that continuing violations doctrine applies to banks' hostile work environment claim. We consider instances that occurred both prior to as well as during the limitation spirit in evaluating the merits. We conclude the court says that there is ample evidence of racial and sexually harassment to create a genuine issue of material effect 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 Lockhart plant, harassment, comments and epithets. But the court nonetheless held that I quote reasonable person who would not find the environment general motives, lockhart plant was hostile, abusive to female and 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 drives you crazy, but let's go on.

Speaker 1: 40:17

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 work environment. Yeah, no shit. Summary judgment isn't appropriate, whereas here, in 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.

Speaker 1: 41:04

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 a threat in physical assault. A reasonable jury could find that banks' altercation with Russia 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 interface 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 pirate and physically threatening demeanor that she eventually withdrew the dismissal order. Another plant employee who went to banks' office when he heard Rush yelling was so concerned that he was prepared to physically protect banks from Rush. Gothro, 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 a wear line or EOC complaints.

Speaker 1: 42:19

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 how to start work and remit claim. That's out of the case of Howley and the plaintiff in Howley in the court oftentimes supports its decision by starters' sizes, by other decisions, other cases that became before it. Then it refers to Howley. A female firefighter was subjected to a verbal assault during a meeting by a male co-worker who told her shut the F up, you F in 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 Haasab work environment claim, we observed that the challenge conduct directly impacted the conditions of plaintiff's employment because it fomented and here's the word again gender-based skepticism as the competence of a commanding officer diminished the respect of the accorded to the offers 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 of that firefighters comply with the directors of the superiors, and recognizing the potential of such thyroid to erode authority, we vacated the grant summary judgment because it cannot be concluded as a matter of law that no rational juror could view that such a thyroid as humiliating and resulting as an intolerable alteration of Howley's working environment conditions Again a decision that the court is relying upon here to form the example for what it's gonna rely for, mr Banks.

Speaker 1: 43:50

A jury could find that the incident involving Rush was similar to the incident involving Howley, because Rush's acts of public insubordination undermined Banks' responsibility to ensure compliance with the plant's safety protocols. Not only did the incident involve a perceived physical threat but a 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 he considered in context of the evidence of pervasive discriminatory conduct discussed below, a jury could reasonably find that Rush'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 implement 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 Lockbore plant.

Speaker 1: 44:58

The court goes on to the next element of hostile work environment and deals with pervasive conduct. I'm sorry, pervasive conduct. Moving to pervasive contact, a reasonable jury could find that the discriminatory contact 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 taking singularly or collectively, we conclude that a reasonable jury could find that the incidents indeed events 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 pin-up women sexually explicit silhouettes were common from 2006 to 2016.

Speaker 1: 45:57

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 in having their work deemed enterized. 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 work stations of black employees within the Lockport plant, even over the course of 11 years, was sufficiently severe and pervasive to support a house-to-work amendment claim. I mean 11 years in a district court found it did not. I mean it's just 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.

Speaker 1: 47:04

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 trying to embryo parentheticals here. This decision so at this juncture it's written in 2023. This post, the buckle in nonsense, occurred in the social justice reckoning we've had in this country over the last three years. You can see the judge in this case, dr 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. You can often find judges doing this. It's a piece of history. So the case you're reading hearing is a piece of history and it's giving direction to anyone reading it.

Speaker 1: 48:04

The importance of what happened here, especially the district court judge who's got to go reconcile this on remand. A reasonable jury could find that even a single placement of this object, imbued as it is worth with its historical gravity as a symbol and tool of actual violence. Violence directly at the workstation of a black employee could amount to a severe conduct sufficiently 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 working environment. 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. 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 constitutes pervasive discrimination that altered the conditions of her employment and create an abusive working environment.

Speaker 1: 49:12

Second, multiple circuit courts have emphasized that perhaps no single act can be more quickly altered the conditions of employment and create an abusive working environment than the use of an unambiguously racial epithet such as the word 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 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 racially hostile working environment. More parentheticals and the district court's description of the isolated epithets levied against banks suggested viewed these comments as quote stray remarks. It says an important analysis I'm going to mention to you, because stray remarks are common here. The court goes on to say that the stray remarks doctrine is by new means, dispositive. While it is true that the stray remarks of a decision maker without more cannot prove a decline 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 more ominous significance In assessing the hostile work environment claim.

Speaker 1: 50:43

The emphasis is on the hostility of the work environment as a whole and a plaintiff must show merely that discriminatory incidences were sufficiently continuous and concerted to have altered the conditions of the employees working in the environment. Again, you just keep hearing the same redundancy. I don't know why the court keeps on doing this. In addition, it does not germane that the racial epithets were directed to 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 a 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.

Speaker 1: 51:28

Yet the mere fact that the plaintiff was not present when a racially-dragatory comment was made will not render the comment irrelevant to her hostile work environment claim. That's important if you understand. 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 is saying is the work environment is so charged with racial bias that it's going to infect it like a disease.

Speaker 1: 51:53

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 second hand of racially-dragatory comment or joke by a fellow employee or supervisor can also impact the work environment. Moreover, as we have previously held that incidents of involving other employees, while they may be of limited probative value, cannot be ignored or 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 when more directly would reasonably be perceived and were perceived as hostile or abusive, are factual issues more appropriate for a trial or a fact meaning a jury. That court goes into the tangible harm which is another element of hostile work environment. Again, apologies, this is what the court's doing and it's linked to decision. Finally, the district court erred in focusing on the lack of tangible harm that banks incurred when the hostile 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. District court dismissed her claim Because it found that banks suffered no adverse consequences, save her stress claims. Spring 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.

Speaker 1: 53:24

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 stress. In every other claim you can't have emotional stress. It's a common law claim. But the court, and as you see here, references the emotional aspect, the toll it takes on employees, the victims, and it says that under Title VII they experience emotional stress. You have this implicit emotional stress buried in the statute. Interpreted it's all kind of crazy nonsense. But understand something that in race cases, no emotional stress. Sex cases, yes, emotional stress, but the jury's still out on the issue. It's kind of a wild west of jurisprudence in my mind.

Speaker 1: 54:16

The court goes on more over. The language of Title VII is not limited to economic or tangible discrimination. It goes on to say tangible effects include judgmental 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 working environment abusive to employees because of the 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.

Speaker 1: 54:51

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. It's going to hit the employment setting as well, because it has to meet this standard workplace equality under Title VII without regard to race. 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 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. That's a Supreme Court decision that will be coming up shortly.

Speaker 1: 55:41

There are example 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 leaves of medical leaves, sought psychological treatment and was prescribing to 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. I'll put in the post notes the court decision 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 have a court interpreters these cases.

Speaker 1: 56:25

Now you've heard it. We know that banks was harmed by this and experienced a hostile work environment. She also experienced just pretreatment and retaliation which you can read yourself. That was what I wanted to get across to you. A real life story happened to somebody pretty outrageous, very, very severe. Now you know how the court dealt with it. Have a great day. Hope to see you.