In Hester v. Board of Education of Prince George’s Cnty., Civil Action No. TDC-22-0128, 2022 WL 7088293 (D.Md. October 12, 2022), the court, inter alia, denied defendant’s motion to dismiss plaintiff’s claim of a sex-based hostile work environment in violation of Title VII of the Civil Rights Act of 1964.
As to whether the alleged harassment was “severe or pervasive,” the court explained:
Here, Hester has alleged that during the two school years that he worked for PGCPS, he was continually harassed by students, parents, and his supervisor. Hester was repeatedly misgendered, including being deliberately referred to as “she,” “her,” and “miss,” and he was frequently called a “faggot.” Furthermore, students consistently taunted, bullied, and harassed Hester for being gay. On two occasions, parents participated in this harassment. While the BOE asserts that this conduct constitutes “simple teasing,” see Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998), as the United States Court of Appeals for the Fourth Circuit has recognized in finding harassment sufficiently severe and pervasive to constitute a hostile work environment, “[n]ames can hurt as much as sticks and stones.” EEOC v. Sunbelt Rentals, Inc., 521 F.3d 306, 318 (4th Cir. 2008); see also Amirmokri v. Balt. Gas & Elec. Co., 60 F.3d 1126, 1131 (4th Cir. 1995) (finding that a reasonable person could “easily” find an atmosphere hostile where the plaintiff’s supervisor called him discriminatory names “almost daily” and engaged in other facially neutral harassing behavior, including “intentionally [trying] to embarrass him”); Boyer-Liberto, 786 F.3d at 280–81 (holding that the use of a severe racial slur on two occasions could be sufficient to establish a severe or pervasive hostile work environment).
*7 Moreover, the harassment from students also included physical attacks and threats. On one occasion, a student physically assaulted Hester by ramming his shoulder into Hester’s back. On another, a student posted a photograph of a gun and threatened to kill the gay, Jewish teachers, of which Hester was one. See Pryor v. Am. Airlines, 791 F.3d 488, 496 (4th Cir. 2015) (finding that racist death threats alone were sufficiently severe as to alter the conditions of the plaintiff’s employment and create a hostile work environment).Beyond the harassment by students and parents, Hester also faced numerous incidents of harassment by his supervisor, Brauer, who mocked Hester’s sexual orientation, yelled at him within inches of his face on at least two occasions, grabbed him by the sleeve, stalked Hester outside of school property, growled and bared his teeth at Hester, whispered insults into his ear, and used the word “oral” in a sexually suggestive way. See Smith v. First Union Nat’l Bank, 202 F.3d 234, 243 (4th Cir. 2000) (finding that genuine issues of material fact existed as to whether a supervisor’s ongoing harassment, which consisted of repeated belittling remarks based on the plaintiff’s gender, was sufficiently severe and pervasive to create a hostile work environment).
Finally, Hester has alleged that the ongoing harassment had a significant impact on him. In the midst of the harassment, he reported it to the principal of his school and stated that he “did not feel safe working at CMIT Academy North as a member of the LGBT community.” Am. Compl. at 2. Hester was diagnosed with and treated for anxiety and post-traumatic stress disorder as a result of the harassment. Such allegations bolster the claim that the harassment was sufficiently severe and pervasive as to alter the terms and conditions of employment and create an abusive atmosphere. See Harris v. Forklift Sys., 510 U.S. 17, 22–23 (1993) (holding that Title VII bars harassing conduct “that would seriously affect a reasonable person’s well-being” while also concluding that evidence of “concrete psychological harm” is not necessary to establish a hostile work environment); see also Conner v. Schrader-Bridgeport Int’l, Inc., 227 F.3d 179, 199 (4th Cir. 2000) (evaluating the psychological harm of the harassing conduct in determining whether the conduct is sufficiently severe and pervasive that the plaintiff perceived it to be subjectively hostile). Allen v. TV One, LLC, No. DKC-15-1960, 2017 WL 4404408, *8 (D. Md. October 4, 2017) (finding that the harassing conduct was sufficiently severe or pervasive in part because the plaintiff received mental health treatment to cope with depression resulting from the conduct).
Taken together, the allegations of consistent and unrelenting harassment by students, which included a physical assault and a death threat, combined with the allegations of ongoing harassment by Brauer, establish a sufficient basis to support a claim of a severe and pervasive hostile work environment.
The court also found that plaintiff sufficiently alleged that the harassment was “because of” his sex/sexual orientation. It reasoned:
The United States Supreme Court has held that discrimination based on sexual orientation is a form of unlawful sex discrimination under Title VII because “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex,” because “homosexuality and transgender status are inextricably bound up with sex.” See Bostock v. Clayton Cnty., 140 S. Ct. 1731, 1741–42 (2020). Here, where Hester alleges that students consistently misgendered him, called him derogatory slurs such as “faggot,” and on one occasion threatened to kill him because he was gay, there is no question that the harassment was because of sex. See id. at 1741. Viewed in the light most favorable to Hester, as is required at this stage, the allegations that Brauer used the word “oral” in a sexually suggestive way, escalated his mistreatment of Hester after his gender presentation became more feminine, and brushed off Hester’s complaints of sexual harassment against him because he is gay with the statement, “What you do on your own time is none of our business,” Am. Compl. at 3, could be construed as conveying a discriminatory animus based on sexual orientation. In light of these allegations, it is also fair to consider the other incidents of harassment by the same individuals or groups—including the physical assault by a student on Hester and Brauer’s yelling, grabbing, and whispering at Hester—as perpetrated “because of sex,” even if they were not accompanied by overt derogatory statements about Hester’s sexual orientation, as harassment “need not be accompanied by a contemporaneous statement of animus … rather, the connection between animus and conduct may be inferred from the totality of the circumstances.” See Strothers, 895 F.3d at 324–25, 330–31 (finding that the plaintiff’s supervisor’s conduct—which included marking the plaintiff as late even though her arrival time was preapproved, tracking and faulting each of the plaintiff’s absences from her desk, and publicly confronting the plaintiff about her dress even though it conformed with the dress code—was based on race even though the supervisor had refrained from explicitly referencing the plaintiff’s race or using racial slurs). Hester has therefore plainly alleged sufficient facts to support a claim that the hostile work environment was based on sex.
The court did, however, grant defendant’s motion to dismiss plaintiff’s claims of, e.g., race- and national-origin based hostile work environment, as well as retaliation.