In Gordon v. Heath, No. 23-2232, 2026 WL 1811021 (4th Cir. June 24, 2026), the court affirmed the denial of qualified immunity in a case of a race-based hostile work environment asserted under Title VII of the Civil Rights Act of 1964 and 42 U.S.C. § 1981.
The court summarized the facts as follows:
Don Gordon and Terrell Jones are two Black officers formerly assigned to a multi-agency Maryland State Police (“MSP”) drug task force. From the outset of their tenure, they allege they were treated as outsiders: they describe being excluded from informal meetings and group communications where overtime work and more desirable job opportunities were circulated to white Task Force members.
According to their Amended Complaint, the harassment peaked in early June 2020, when a supervisor circulated a text message with a racially coded and sexually explicit image of George Floyd to Task Force officers. This text was sent in the immediate wake of Floyd’s killing and the nationwide controversy that followed. Gordon and Jones allege Defendant Sergeant Heath, who co-led the unit, participated in the exclusionary practices and failed to address the racially charged text message.
Applying the law to the facts, the court explained:
Title VII (and the § 1981 hostile work environment framework that mirrors it) is not a “general civility code,” and it targets only conduct that occurs “because of” race, evaluated with “appropriate sensitivity to social context.” Strothers, 895 F.3d at 329–31. Strothers makes explicit that harassment need not come with a contemporaneous racial statement of animus every time: “the connection between animus and conduct may be inferred from the totality of the circumstances.” Id. at 331; Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 82, 118 S.Ct. 998, 140 L.Ed.2d 201 (1998) (instructing courts in harassment cases to apply “[c]ommon sense” and “appropriate sensitivity to social context” to the “constellation of surrounding circumstances, expectations, and relationships which are not fully captured by a simple recitation of the words used or the physical acts performed”). At this stage of litigation, even with § 1981’s but-for requirement, see Comcast Corp., 589 U.S. at 341, 140 S.Ct. 1009, a plaintiff need not plead that every discrete act was overtly racial. The question is whether the allegations support a plausible inference that race explains the pattern.
Here, Gordon and Jones allege that, throughout their tenure, Sergeant Heath and Corporal Oros “rarely communicated with” them, J.A. 11 ¶ 50, and maintained informal meetings and text chains that circulated overtime work and desirable job opportunities to white members while excluding Gordon and Jones. They further allege that on June 2, 2020, Corporal Oros circulated a George Floyd image depicting “a superimposed nude African-American male with exposed and enlarged genitals sitting on George Floyd’s head and neck area on the street near the rear bumper of a Minneapolis police car.” J.A. 13 ¶ 67.
Viewed in its social context, that alleged image is not merely offensive; it is circumstantial evidence of racial animus. And under Strothers, allegations of racial animus need not accompany each challenged act to support an inference that a broader pattern of facially neutral conduct occurred because of race. See 895 F.3d at 330–31. Thus, the alleged George Floyd image provides the kind of contextual showing that can “inject[ ]” race into the explanation for the exclusionary practices Plaintiffs describe and support an inference that those practices were not race-neutral at all. Id.; see also id. at 329, 334–36 (explaining that although much of the alleged mistreatment was not overtly race-specific, allegations that the supervisor wanted an employee “of a different race,” together with the pattern of singling-out plaintiff, supported a reasonable inference that the harassment was “race-based”).
The third element asks whether the alleged harassment was “sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.” Strothers, 895 F.3d at 331 (internal citations omitted). Courts examine the “totality of the circumstances,” including “the frequency of the 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.” Harris v. Forklift Sys., Inc., 510 U.S. 17, 23, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993); Strothers, 895 F.3d at 331. What “interferes with work performance” or becomes “threatening” can look different depending on the job and setting, which is why context always matters. Strothers, 895 F.3d at 331. And while “[s]imple teasing, offhand comments, and off-color jokes” do not suffice, EEOC v. Fairbrook Med. Clinic, P.A., 609 F.3d 320, 328 (4th Cir. 2010), even a single incident can meet the standard if “extremely serious.” Boyer-Liberto v. Fontainebleau Corp., 786 F.3d 264, 281, 285–86 (4th Cir. 2015) (en banc) (finding it reasonable for plaintiff to claim a hostile work environment when she was called a racial slur only twice, because “an isolated incident of harassment, if extremely serious, can create a hostile environment”).
Viewed in the light most favorable to Plaintiffs, the Amended Complaint plausibly alleges much more than a stray slight. Plaintiffs describe ongoing exclusion from the informal meetings and group text chains where desirable assignments and overtime opportunities were discussed and distributed—exclusions they say caused them to miss potentially lucrative job and overtime work opportunities. They also allege the derisive incident in which Corporal Oros sent the racially and sexually offensive image of George Floyd, which even counsel for Sergeant Heath concedes is sufficiently severe because of its level of insensitivity and offensiveness. Oral Ar. at 10:50 (timestamp). Sergeant Heath took no corrective action—no reprimand, no report, no investigation—and continued excluding Gordon and Jones from informal meetings and text group chats. Plaintiffs allege that the combined conduct resulted in more racial division, created mistrust along racial lines, and left them isolated from other Task Force members.
Because of this mistrust, Plaintiffs alleged that their ability to do their job safely and effectively became compromised. They state in their Amended Complaint that because of the racially divisive and hostile atmosphere created within the Task Force, they did not believe Sergeant Heath, Corporal Oros, and other Task Force members would protect them in their dangerous street work that involved drug investigations and executing search and seizure warrants. At the pleading stage, these allegations go directly to Harris’s “physically threatening” and “interference with work performance” factors because a reasonable officer could perceive as abusive an environment in which racial division and mistrust plausibly undermine the expectation of backup in the field. Harris, 510 U.S. at 23, 114 S.Ct. 367; Strothers, 895 F.3d at 331.
Accordingly, the court held that “[t]aking all these allegations together—repeated exclusion affecting opportunities and pay, a humiliating racially offensive text message, continued nonresponse by leadership, and alleged safety-threatening mistrust—Plaintiffs plausibly allege conduct sufficiently severe or pervasive to alter their conditions of employment.”