The Court of Appeals has issued a major decision on sexual and racial harassment. This 76-page ruling restates certain principles that will be familiar to practitioners in this area and emphasizes other points in the course of vacating the grant of summary judgment and remanding this case for trial.
The case is Banks v. General Motors, issued on September 7. The Court of Appeals notes that plaintiff's work environment was polluted with numerous racial and sexist epithets, the Confederate flag was depicted on employees' vehicles and clothing, and nooses were displayed on three separate occasions near the workstations of Black employees. In one instance, after Banks dismissed an outside contractor for violating safety protocols (a decision within her discretion) a manager walked into her office, began yelling at her, and shook a thick, rolled-up document threateningly in her face. This manager was so loud and threatening that another worker was prepared to physical protect plaintiff from the manager, and the manager was loud enough to be heard 50 feet away. The manager did not appear to use explicitly bigoted language during this tirade.
The decision also notes various stereotypical comments, such as a training exercise where the union safety representative pointed to plaintiff, who is Black, in making reference to illegal drug use. Another colleague engaged in a stereotypical "Ebonics" speaking style. Several Black or female employees told plaintiff that they had been subject to sexually offensive comments or racial epithets. So plaintiff was not the only victim of racist and sexist comments and gestures. On three separate occasions from 2006 to 2017, Black employees reported that nooses had been placed directly at or near their worksites.
I don't know how summary judgment was granted in this case, but here are the holdings, employing the familiar "totality of the circumstances" test guiding these cases.
The harassment may be deemed severe based on the tirade from plaintiff's subordinate, who undermined her authority even without using racial comments. In context, the overall work environment, could make this a severe episode under the "severe or pervasive" test. The three nooses in 11 years may also be severe under Title VII. This is the rare case where the Court of Appeals finds that one incident may be enough to support a hostile work environment claim.
The harassment may also be deemed pervasive under Title VII because "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 [a slavery image]. As the district court recognized, Black colleagues were subjected to 'a steady barrage of racial insult and epithet.'" The court also considers incidents involving other employees in finding that plaintiff may prevail at trial. Again, we consider the whole picture in sizing up a case.
While the district court said plaintiff suffered no tangible harm, the Court (Chin, Carney and Robinson) reminds us that no psychological harm is required under Harris v. Forklift Systems, a Supreme Court ruling from 1993, and in any event plaintiff can prove tangible harm even without economic loss under Title VII, which is not limited to economic or tangible discrimination. Plaintiff took multiple medical leaves because of the hostile work environment, sought psychological treatment, took medication over stress from the hostile work environment.
This decision is notable for (1) the Court of Appeals' emphasis on considering the totality of the circumstances in assessing the work environment, (2) its holding that the tirade and the nooses may be enough to show the harassment was "severe," and (3) its reliance on cases from around the country in driving home these points. It looks like the Court of Appeals wanted to issues a thorough ruling on these issues, making this a go-to case for racial and sexual harassment.
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