In a recent decision, the Fourth Circuit Court of Appeals considered the difficult circumstances in which special education teacher often operate and how that environment can intersect with protections against workplace discrimination and harassment. The case, according to the court, brought “to light the difficult balance that schools must find between ensuring that all students have access to a public school education while simultaneously maintaining a nonhostile work environment for all employees—the impact of which is felt by special education educators serving at the intersection of these two rights.” Webster v. Chesterfield County School Board, No. 21-1545 (4th Cir. June 28, 2022).
Regina Webster has worked as an instructional assistant in special education at an elementary school in Chesterfield County, Virginia since 2006. In 2018, the school’s principal transferred Webster to a class where she worked with children with moderate intellectual disabilities. Webster claimed that shortly after joining the new class, an eight-year-old student with Down’s Syndrome and ADHD sexually harassed her during a roughly six-month period between fall 2018 and spring 2019. Webster claimed that the student put his hands up her dress and touched her private areas on a frequent basis. Webster admonished the student to stop but the behavior continued.
Webster asserted that the teacher “was generally dismissive of her concerns and ‘tried to defend it by saying that it was just [the student’s] personality.” Webster also reported the conduct to the principal and vice principal, and requested to be transferred to her previous classroom. The school principal denied the request. In November 2018, the classroom teacher proposed that another educator would exchange roles with Webster so that Webster would not have to work with the student. Webster was apparently not receptive to this change. She emailed the school administrators about the challenges with her assignment and viewed the change as a ”brief reprieve.” After a couple weeks, Webster was reassigned to work with the same student.
In January 2019, Webster again requested to return to her prior classroom. The school denied the request based on staffing needs. Webster then submitted reports and documentation regarding the student’s behavior. Webster, however, “did not . . . report the daily incidents of [the student’s] inappropriate touching because . . . her Chesterfield Education Association representative did not instruct her to do so.”
The final alleged incident with the student occurred in March 2019, which involved similar inappropriate touching. After this incident, the school altered Webster’s assignment to limit her interaction with the student, provide support for the times she did interact with the student, and decrease the time Webster spent alone with the student. The school also proposed transferring Webster to a new classroom. These measures “terminated [Webster’s] exposure to [the student’s] conduct.”
Webster then filed a charge of discrimination and then a lawsuit alleging that she was subjected to a sexually hostile work environment under Title VII of the Civil Rights Act of 1964.
At the hearing on the school board’s motion for summary judgment, the district court heard expert testimony demonstrating that the student “was incapable of distinguishing between sexes and that a reasonable instructional assistant would not view [the student’s] conduct as sexual harassment.” The district court found in favor of the school board based on the expert testimony and Webster’s reliance on her own statements, which resulted in Webster not satisfying the requirements for a hostile work environment claim: unwelcome conduct, based on the plaintiff’s sex, that is sufficiently severe or pervasive to alter the plaintiff’s conditions of employment and create an abusive work environment, and that the conduct was imputable to her employer.
Webster appealed to the Fourth Circuit, which affirmed the district court’s decision. Webster could show that the conduct was unwelcome, but not sufficiently severe or pervasive to alter the conditions of her employment and create an abusive work environment, that it was based on her sex, or imputable to her employer.
Webster did not dispute that the student could not distinguish between sexes and agreed that he could not form sexual intent. The school board’s experts explained that the student’s behavior was driven by his disabilities. One expert opined that “[a]ny special education Instructional Assistant (‘IA’) should have known, and should have expected, that [the student] might grab various parts of a person’s body (including ‘sexual’ areas), or lift shirts solely in order to get attention, as a distraction, or to get someone to ‘back off.’ This is part of the understanding of the special education profession and is not specific to any one school district.” It was not, according to the expert, reasonable for someone in Webster’s position to conclude that the student was engaged in sexually harassing behavior. The expert added that the student’s “behavior had nothing to do with Ms. Webster’s gender.”
Webster argued that the student’s behavior disproportionately affected women, however, she provided no evidence regarding similarly situated male employees. The court rejected Webster’s argument that the conduct was based on sex, reasoning that the student’s behavior, “as explained by experts, were unsurprising for a child of his age with Down’s Syndrome and ADHD.”
The court also found that Webster could not show that the conduct was sufficiently severe or pervasive. While it was undisputed that Webster did not welcome the conduct, she could not show that “a reasonable person” in her position “would have found the environment objectively hostile or abusive.” The court reasoned: “[w]ithout any expert testimony to rebut the School Board’s evidence that [the student’s] behavior was consistent with the behavior of a child his age and with his disabilities, Webster fails to cite to anything in the record suggesting that a reasonable person in her position—an experienced instructional assistant working in special education—would find [the student’s] conduct to be severe or pervasive.”
Finally, Webster did not show that the student’s conduct was imputable to her employer. The school board took actions to address the situation by modifying Webster’s assignment, changing Webster’s schedule, and monitoring her interactions with the student. Webster agreed that the school board’s actions “effectively terminated her exposure to [the student’s] conduct.”
While the court was sympathetic to Webster’s experience, it recognized the limited options available to the school. “Unlike in many Title VII actions where the employer’s options to remedy a hostile work environment include firing an employee for sexual harassment, the School Board has a more limited set of remedies available given that they must balance maintaining a non-hostile work environment with ensuring that children have access to public education.” On the facts presented, the court found the school board responded appropriately. For these reasons, Webster could not satisfy the requirements for a sex-based hostile work environment claim.