Second Circuit Revives Claims of Race and Sex Discrimination & Hostile Work Environment Claims

In a recent case, Banks v. General Motors, LLC, No. 21-2640, 2023 WL 5761361 (2d Cir. Sept. 7, 2023), the U.S. Court of Appeals for the Second Circuit vacated a lower court’s summary judgment dismissal of plaintiff’s race- and sex-based discrimination and hostile work environment claims.

From the decision:

In this case, plaintiff-appellant Billie R. Banks, an African American woman, claims that her employer, defendant-appellee General Motors, LLC (“General Motors”), subjected her to a hostile work environment, race and sex discrimination, and retaliation at her place of employment, the General Motors plant in Lockport, New York. In the district court, Banks presented evidence that, for example: a manager called her a “dumb n****r” in front of other employees; racist and sexist words or material were displayed around the plant; sexist comments were directed at her; the Confederate flag was depicted on employees’ vehicles and clothing; and nooses were displayed on three separate occasions near the workstations of Black employees.

Banks also presented evidence that when she was ready to return to work after a leave of absence, a General Motors psychiatrist denied her permission to return, opining that she did not have “the conflict resolution skills to handle th[e] environment” at the plant and explicitly referencing the complaints of discrimination she submitted internally as well as to the Equal Employment Opportunity Commission (the “EEOC”). J. App’x at 503. And she presented evidence that after her return to work, she was placed in a different role where she did not have supervisory responsibilities and was assigned to work a less desirable shift.

Among other evidence, the court cited an incident in which a male manager “shook a rolled-up document in [plaintiff’s] face and started yelling at her in a loud and aggressive manner” and noted that it has previously held that “a tirade involving obscene comments delivered at length, loudly, and in a group in which [the plaintiff] was the only female precludes a grant of summary judgment on a hostile work environment claim.” This, held the court, was sufficient to make out “severe” conduct.

It further held that the alleged conduct was sufficiently “pervasive”, noting that “a reasonable jury could find that the incidents indeed evinced a culture of hostility towards Black and female employees” and that plaintiff “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.”

It also noted that from 2006 to 2016, plaintiff 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.” Furthermore, “Black colleagues were subjected to “a steady barrage of racial insult and epithet”; colleagues testified to being called “n___r” and “silverback” and having their work deemed “n___rized.”

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