In a landmark case, an eight-person jury (six women and two men) awarded a transgender professor, Rachel Tudor, more than $1.1 million in her claim that her former employer discriminated against her on the basis of her sex.
Tudor was hired by Southeastern Oklahoma State University (part of the Regional University System of Oklahoma) in 2004 as a tenure-track assistant professor in the English Department. In 2007, she began transitioning from male to female, becoming the university’s first openly transgender professor.
Tudor notified the university that she would be presenting as a woman for the 2007-2008 school year. According to Tudor, she then received a call from human resources informing her she would not be fired provided she follow certain rules, including that she not use the women’s restroom, wear short skirts, or wear makeup that would be deemed harassing to male colleagues. She testified that another individual told her that she should take safety precautions, because some people were openly hostile to transgender people.
Two years later, in October 2009, Tudor applied for tenure. The university’s tenure committee voted in favor of extending tenure to Tudor; however, university administrators rejected the recommendation, telling Tudor she should withdraw her application for tenure and take more time to strengthen her tenure portfolio. Tudor did not withdraw her application, and the university did not grant her tenure. Later, the university denied her an opportunity to reapply for tenure, and, in 2011, terminated her for failure to attain tenure prior to the end of her seventh year at the university.
The jury hearing the case found that the university and Regional University System of Oklahoma discriminated against Tudor based on her gender when they denied her both tenure and the opportunity to reapply for tenure. The jury also found that the defendants retaliated against Tudor by denying her the opportunity to reapply for tenure.
The case is important to the ever evolving anti-discrimination case law. It is one of the first cases in which a court has determined that transgender status is protected under Title VII. Not surprisingly, not all courts who have considered this issue agree. The Supreme Court has not considered the issue, but it will certainly be confronted with the issue sooner rather than later. It is also the first jury verdict we have heard about regarding a transgender person’s discrimination claims.
Cautious employers will handle concerns regarding transgender status like it is covered under Title VII—assuming that discrimination based on transgender status is sex discrimination. Given this verdict (and a big one at that), we are likely to start seeing more sex discrimination claims from transgender employees.