## Facts

- Elana Back was hired in 1998 as a school psychologist at an elementary school in a public school district on a three-year tenure track.
- During her first year, she received highly positive evaluations from her supervisors, the school principal and the director of pupil personnel services.
- In her second year, Back took maternity leave and then returned to work; she continued to receive very positive evaluations into her third year.
- As tenure review approached, Back alleged that her supervisors made repeated statements questioning whether she could be both a committed employee and a good mother, including remarks about her needing to work late hours, doubts about doing the job with “little ones,” and questions about what she would do when her child was sick.
- Near the end of the probationary period, Back received her first negative evaluation, citing alleged organizational and interpersonal deficiencies and recommending against tenure.
- The superintendent accepted the recommendation, denied tenure, and ended Back’s employment.
- Back sued under 42 U.S.C. § 1983, alleging denial of tenure based on sex discrimination in violation of the Equal Protection Clause, grounded in stereotypes about mothers.
- The district court granted summary judgment to all defendants; Back appealed.

## Issues

1. Whether sex-based stereotyping about mothers constitutes intentional sex discrimination actionable under the Equal Protection Clause and § 1983.
2. Whether a plaintiff must present evidence of how fathers were treated (comparator evidence) to prove discriminatory intent based on such stereotyping.
3. Whether the evidence created a genuine dispute of material fact as to liability of the principal and the director who evaluated and recommended against tenure.
4. Whether the school district and superintendent could be held liable on the record presented.
5. Whether qualified immunity protected the individual defendants accused of stereotyping-based discrimination.

## Decision

- The court held that stereotyping about mothers’ ability or commitment to work is a form of sex discrimination actionable under the Equal Protection Clause and § 1983.
- The court held that discriminatory intent can be shown without direct evidence about treatment of fathers; stereotyping remarks and surrounding circumstances may suffice.
- The court vacated summary judgment for the principal and the director, holding that Back’s evidence could allow a reasonable jury to find that the tenure denial was motivated by sex-based stereotypes and that the stated performance reasons were pretextual.
- The court affirmed summary judgment for the school district and the superintendent, finding insufficient evidence of municipal liability or personal discriminatory intent by the superintendent.
- The court denied qualified immunity to the principal and the director because the right to be free from discriminatory sex stereotyping was clearly established at the time.
- The case was remanded for further proceedings against the remaining individual defendants.

## Legal Principles

- Government employers violate the Equal Protection Clause when they make adverse employment decisions based on sex-based stereotypes, including stereotypes about mothers’ commitment or ability to perform demanding work.
- A plaintiff may prove discriminatory intent through direct evidence of stereotyping statements and circumstantial evidence (including timing and shifts in evaluations) without producing comparator evidence about male employees.
- Under § 1983, municipal liability requires proof that the constitutional violation resulted from an official policy or custom; liability cannot rest solely on actions of subordinates without the required Monell showing.
- Individual supervisory liability under § 1983 requires sufficient evidence of personal involvement and discriminatory intent.
- Qualified immunity does not shield officials where the unlawfulness of sex-stereotyping discrimination was clearly established and a reasonable official would have understood the conduct to be unconstitutional.

## Conclusion

The Second Circuit recognized that penalizing an employee based on stereotypes about mothers is intentional sex discrimination under equal protection, held that such claims can proceed without father-comparator proof when supported by stereotyping remarks and related circumstantial evidence, reinstated claims against two individual supervisors, and left the school district and superintendent dismissed for lack of adequate proof.


Back v. Hastings on Hudson Union Free Sch. Dist., 365 F.3d 107 (2d Cir. 2004)