By Mikiba W. Morehead, M.A., Ed.D., Consultant, TNG Consulting
Jennifer Eller, a transgender teacher in the Prince George’s County Public Schools (PGCPS), sued the system for violations of the 14th Amendment, Title VII, Title IX, and the Maryland Fair Employment Practices Act. Eller alleged that she experienced sex-based harassment and unlawful retaliation at three different schools within the system. Eller claimed that she was subject to continuous harassment from the time she began her gender transition in 2011 until her resignation in 2017.
PROCEDURAL HISTORY
Eller filed suit alleging nine causes of action against PGCPS, the Prince George’s County Board of Education, and PGCPS’s Chief Executive Officer Monica Goldson. The Defendants filed a motion for summary judgment.[1] Eller filed a cross motion for partial summary judgment.[2]
SUMMARY OF FACTS
Eller was employed as a teacher at PGCPS from 2008 to 2017. From 2008 to 2011, Eller worked as a reading and English language arts teacher for gifted and talented students at Kenmoor Middle School. In the Spring of 2011, Eller informed the principal at Kenmoor Middle that she would begin socially transitioning to living as a woman in alignment with her gender identity. Eller requested that the principal keep her transition private until she was ready to discuss it with others. However, the principal shared Eller’s transgender status with other teachers without her consent.
Eller claimed that once her transition became known, she experienced verbal harassment, including intentional misgendering and derogatory comments regarding her appearance, from fellow teachers. Moreover, Eller reported harassment from students, including insults, threats of violence, physical harassment, and assault. Eller reported the harassment to the principal. Instead of addressing the harassment itself, Kenmoor administrators encouraged Eller to downplay her transition by presenting as less feminine at work. In May 2011, Eller and the principal agreed that Eller would transfer to a different school.
In August 2011, Eller transferred to Friendly High School. During her time at Friendly High, Eller experienced intentional misgendering and derogatory comments from other teachers. Moreover, students and parents frequently insulted her with transphobic slurs. Students commented on her genitalia and surgical status, shoved her, and threatened to rape her. During the 2012-2013 school year, the harassment from students escalated. Students insulted Eller from within their classrooms, and some confronted her in hallways and made threats of violence. Students also used transgender slurs while intentionally stepping on and pressing down on Eller’s feet until she cried out in pain. Eller reported the incidents of harassment to school administrators and the PCGPC system. Additionally, Eller made several requests for students and staff to receive training on gender identity discrimination.
In March 2015, in response to Eller’s complaints, Friendly High staff attended a mandatory training on LGBT issues. However, the training was cut short by teacher interruption. In June 2015, the PGCPS EEO Office issued a Letter of Determination in response to one of Eller’s complaints recommending “professional counsel and/or discipline”[3] to a staff member who continued to intentionally misgender Eller, and “diversity and sensitivity training”[4] for students and staff at the school. However, evidence captured during depositions indicates that no actual action was taken against the staff member and no additional diversity or sensitivity trainings occurred.
Eller transferred to James Madison Middle School for the 2016-2017 school year. Soon after her arrival, students began to misgender, harass, and threaten Eller. In October 2016, Eller took an unpaid leave of absence. During that time Eller was diagnosed with PTSD and received outpatient treatment. Eller resigned from her position as a PGCPS teacher in August 2017.
FINDINGS AND SIGNIFICANT ISSUES
The court examined both parties’ requests for summary judgment. The court granted PCGPS’s motions for summary judgment regarding Eller’s claims of violation of the 14th Amendment, Title IX, and some portions of the Maryland Fair Employment Practices Act because the statute of limitations for each law had passed. However, the court examined the merits of Eller’s Title VII claims of hostile environment, constructive discharge, and retaliation.
Hostile Environment
The court used a four-part test to evaluate the presence of a hostile work environment:
- The plaintiff experienced unwelcomed conduct;
- The conduct was based on the plaintiff’s race, color, religion, national origin, age, or sex;
- The conduct was sufficiently severe or pervasive to alter the conditions of employment and to create an abusive atmosphere; and
- There is some basis for imposing liability on the employer.
The court found clear evidence that Eller experienced unwelcome conduct and agreed that Eller’s harassment was based on her sex because, “it is impossible to discriminate against a person for being transgender without discriminating against that individual based on sex.”[5] PGCPS argued that the behavior Eller experienced was not sufficiently severe or pervasive as to alter the conditions of her employment and create an abusive or hostile atmosphere. But the court found that Eller’s documented experience satisfied both the subjective and objective evaluation elements of a hostile environment analysis. Eller repeatedly reported the harassment to PGCPS administrators, indicated how the harassment was affecting her work, and sought treatment for PTSD, which was a consequence of her workplace harassment. The court found sufficient evidence that Eller continuously experienced harassment from co-workers, students, and parents at three different schools from her time of transition in 2011 until her medical leave of absence in 2016. Additionally, the court found that Eller reported harassment consisting of physical violence and threats of rape, and that her reported harassment impacted her ability to work effectively, thus illustrating that the harassment had altered the conditions of her employment and created an abusive work environment.
Finally, the court evaluated whether there was a basis for imposing liability on PGCPS as Eller’s employer. Under Title VII, there are specific circumstances where liability attaches to an employer. The evidence showed that Eller faced some direct harassment by supervisors (e.g., the Assistant Principal), although most of the harassment was from co-workers or students and their parents. However, the evidence supported that PGCPS administration knew of Eller’s harassment and failed to take measures to stop the harassment, prevent its recurrence, or remedy its effects.
Therefore, the court found sufficient evidence to support all four prongs of a hostile work environment and denied PGCPS’s motion for summary judgment on this claim.
Constructive Discharge
PGCPS argued that Eller’s August 2017 resignation does not qualify as a constructive discharge from employment. Constructive discharge focuses on whether work conditions are “so intolerable that a reasonable person would have felt compelled to resign.”[6] The court found sufficient evidence to support a finding of constrictive discharge, specifically that Eller was subjected to years of harassment by supervisors, co-workers, students, and parents based on her transgender status with little response to her complaints. The lack of an effective response resulted in the continuation of the harassment and damage to Eller’s self-confidence, coping strategies, resilience, and mental health.
Retaliation
Eller claimed that she had evidence to support each of the three elements of Title VII retaliation. To establish a prima facie case of retaliation, Eller must show that she:
- Engaged in a protected activity,
- PGCPS took a materially adverse action against her, and
- There was a causal connection between the two events.
“‘Protected activity’ consists of ‘opposing any practice made an unlawful employment practice under Title VII’”.[7] Employment practices that discriminate against individuals based on a protected characteristic (i.e., race, color, religion, sex, or national origin) are unlawful. The court found that Eller engaged in protected activity both formally and informally (Eller filed a formal EEOC complaint as well as repeatedly provided verbal and email complaints to PGCPS administration).
Further, the court found sufficient evidence to support that Eller was subject to one or more materially adverse actions. Specifically, that PGCPS administrators reassigned her to a smaller classroom farther away from security cameras and administrative support, removed her from teaching the AP English course, attempted to reduce her position to cause her to transfer to a different school, and issued her a disciplinary letter after she confronted another teacher about misgendering a transgender student. Eller alleged that PGCPS intended these actions to have the effect of discouraging further complaints.
Finally, the court found the evidence sufficient to establish a causal connection between Eller’s engagement in protected activity and the materially adverse action taken against her as each of PGCPS’s actions took place after one or more of her verbal complaints. However, PGCPS argued that the adverse actions taken against Eller were for legitimate, non-retaliatory reasons. PGCPS cited low scores on Eller’s AP students’ exams, budget cuts, Eller’s lack of seniority, and Eller’s inappropriate interaction with another teacher regarding misgendering a student. Yet, PGCPS failed to provide a legitimate non-retaliatory reason for reassigning Eller to a smaller classroom farther away from security cameras and administrative support. In response, the court denied PGCPS motion for summary judgment.
KEY TAKE-AWAYS
This case highlights how failure to take action to address pervasive and persistent sex-based discrimination against an employee across a system/district created liability under Title VII and could have implicated Title IX if Eller had filed her lawsuit sooner. Given that courts often use Title VII cases to inform their Title IX rulings, educational institutions should pay attention to the court’s reasoning here. The court keyed in on the number of times PGCPS administrators were aware of sex-based harassment by employees, students, and parents but failed to take effective steps to stop the harassment, prevent its recurrence, and remedy the effects of the harassment. The District court echoed the causation rationale used by the U.S. Supreme Court in Bostock v. Clayton County and by the Fourth Circuit in Roberts v. Glenn Industrial Group, Inc. Here the court emphasized that, in Title VII cases, discrimination based on an individual’s transgender status or discrimination motivated by an individual’s failure to conform to sex stereotypes is sex discrimination. The court’s analysis was very similar to Title IX cases, thus administrators should ensure their Title IX processes are responsive to concerns around gender identity, transgender issues, and harassment. Of special note here is the somewhat novel argument that student-led harassment of an employee is actionable under Title VII, which the court accepted.
As of the publication date of this article, a federal district court has granted an injunction to pause the U.S. Department of Education’s guidance extending Bostock to Title IX, pending litigation on the matter.[8] However, the proposed Title IX regulations published in June 2022 forecast the Department’s intention to interpret Title IX to include protections for transgender individuals. Therefore, while this area of law is currently unsettled, Title IX Coordinators need to consider how well their practices prevent concerns based on gender identity or expression and whether policies and processes sufficiently address harassment based on gender identity and expression.
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[1] Courts grant summary judgement when the moving party demonstrates that there are no genuine issues regarding any material facts, and that the moving party is entitled to judgment as a matter of law. Courts conduct this analysis of facts in the light most favorable to the nonmoving party.
[2] Because Eller filed cross-motions for summary judgment, the court reviewed each motion separately and on its own merit.
[3] Jennifer Eller v. Prince George’s County Public Schools et al. (2022 WL 170792, D. Md.), at 6.
[4] Id. at 6.
[5] Id. at 20.
[6] Id. at 27.
[7] Id. at 30.
[8] Tennessee v. U.S. Department of Education, Case No. 3:21-v-308 (E.D. Tenn 2022).