Title VII plaintiff can prevail on disparate treatment claim against General Motors

The Court of Appeals has ruled that a Black woman who worked at a General Motors plant in Western New York can prevail on her disparate treatment claim under Title VII, in part because of stereotypical decisionmaking and deviations from company policy in the context of the plaintiff's claim that she endured a hostile work environment based on race and gender. The Court also provides interesting analysis on what constitutes an adverse action under Title VII.

The case is Banks v. General Motors, issued on September 7. The hostile work environment discussion is here. As a consequence of the work environment, plaintiff took a medical leave of absence. First, the evidence of stereotypes. In April 2014, Banks notified General Motors that she was ready to return to work. She provided a note from her treating psychiatrist and obtained approval from the plant doctor. But a General Motors psychiatrist denied her permission to return, stating she did not have the "conflict resolution skills to handle the environment" at the plant and explicitly mentioning her discrimination complaints internally and to the EEOC. This is direct evidence of discriminatory intent as the doctor's justification referred to EEOC charge, and indirect evidence in the form of racial stereotypes in suggesting that Plaintiff is the "angry black woman." 

Another stereotype: in suggesting that plaintiff's family background might explain her mental and emotional hardships that actually were caused by the hostile work environment, the doctor "asserted that Banks's complaints about discriminatory harassment were insufficient to cause her depression and anxiety and that something in her background was to blame. Implicit in this response is a negative assumption about Banks's family which -- considering that Dr. Jones had only just met Banks, and in light of her description of her happy and tight-knit family -- arguably could only have reflected racial animus." The Court of Appeals does not come out and say this but the inference is the doctor was inferring that plaintiff came from a stereotypical dysfunctional family.

 

More evidence comes in the form of deviations from company policy. Such deviations can support a disparate treatment claim. "General Motors's decision to require that Banks obtain psychiatric approval from Dr. Jones, in contravention of company policy and contrary to the approval process Banks had undergone for her prior disability leaves." Evidence shows that "obtaining approval from Dr. Jones was unusual and deviated from regular practice."

 

In addition, replacing plaintiff while she was out on leave without approval from HR violated company policy. "Significant, unexplained or systematic deviations from established policies or practices can no doubt be relative and probative circumstantial evidence of discriminatory intent." This job action was a significant deviation as people were surprised by it and thought it would create a "situation" because the transfer took place without appropriate approval. 

In short, the Court of Appeals (Chin, Robinson and Carney) finds that plaintiff suffered an adverse action, even under the Second Circuit's strict "materiality" test that considers whether the plaintiff suffered a significant change in circumstances, either through loss of pay, a demotion, termination, or a transfer that denies the plaintiff certain privileges. (The Supreme Court is evaluating whether "materiality" should factor into the adverse action analysis). The Court of Appeals holds firm on the materiality test but this decision pushes the limits of that standard in noting that no particular personnel decision is automatically excluded from serving as the basis of a cause of action under Title VII. Economic harm is not always required to make out an adverse action. The Court of Appeals emphasize that Title VII cannot suffer discrimination in the terms, conditions and privileges of employment, noting that this language takes an expansive view of what constitutes an adverse action.