Harassment Claim Based on ‘Presented Gender' OK'd

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By Patrick Dorrian

July 13 — A male-to-female transgender professor may pursue her claim that an Oklahoma state university violated Title VII of the 1964 Civil Rights Act by subjecting her to a hostile work environment based on her “presented gender,” a federal judge ruled July 10.

Denying a motion by Southeastern Oklahoma State University, the U.S. District Court for the Western District of Oklahoma found Dr. Rachel Tudor's intervenor complaint, in a case brought by the Justice Department, sufficient to state a claim for sexual harassment under Title VII. The DOJ sued the university March 30, alleging that it denied Tudor tenure because she didn't conform to gender stereotypes, and refused to allow her to reapply in retaliation for complaining.

Tudor's intervenor complaint satisfied federal pleading rules, the court found, because it alleged she was subjected to harassment based on her membership in a class protected by Title VII. “[T]he actions Dr. Tudor alleges Defendants took against her were based upon their dislike of her presented gender,” the court wrote.

Judge Robin J. Cauthron said Tudor also adequately alleged that she placed the university on notice during the administrative process that she would be pursuing a hostile environment claim. A letter Tudor sent to the Equal Employment Opportunity Commission and her EEOC charge made clear her claims were based in part on her gender transition and her co-workers' “reaction to that change,” Cauthron found.

Intervened in DOJ's Lawsuit.

In addition to Southeastern, the DOJ's lawsuit named the Regional University System of Oklahoma (RUSO) as a defendant.

According to the DOJ, Tudor was denied promotion to the tenured position of associate professor, despite receiving positive recommendations from her department chair and other tenured faculty, because of her gender identity, gender transition and non-conformance with gender stereotypes.

Tudor presented as a man when the university hired her in 2004 but began presenting as a woman in 2007. She subsequently was denied tenure during the 2009-2010 academic year, the DOJ asserted.

The department also alleged that after Tudor filed complaints about the tenure denial, the university refused to let her reapply even though its policy was to let faculty renew tenure bids.

Tudor filed her complaint in intervention May 5. She asserted Title VII sex discrimination, retaliation and sexual harassment claims against the defendants.

Harassed Over Restroom Use, Skirt Length

According to Tudor, the hostile work environment consisted of being required for nearly four years to use “a specific single-stall, all-genders restroom for persons with disabilities” that was located on a different floor than her office, rather than a multi-stall women’s restroom located on her floor.

She also allegedly was explicitly excluded from participating in the university's health insurance plan and counseled against wearing short skirts.

In addition, Tudor alleged, she was warned to take safety precautions against people who are openly hostile towards transgender individuals and told that the vice president for academic affairs considered transgender people to be a “grave offense to his [religious] sensibilities.”

In moving for dismissal of the harassment claim, the defendants argued Tudor failed to allege that she exhausted her administrative remedies on that claim and that she failed to plead the elements of a hostile work environment.

Rejects Arguments for Dismissal

Rejecting the first argument, Cauthron found Tudor's reference to a letter she sent to the EEOC and her EEOC charge adequate to allege the type of notice to her employer needed to satisfy federal pleading rules with regard to administrative exhaustion requirements.

Moreover, Tudor's allegations that she was harassed “because she was female, yet Defendants regarded her as male” adequately pleaded the protected-class element of a Title VII harassment claim, the court found. It said the U.S. Court of Appeals for the Tenth Circuit, in a footnote in Etsitty v. Utah Transit Authority, 502 F.3d 1215, 101 FEP Cases 1357 (10th Cir. 2007), recognized the distinction between harassment based on transgender status and harassment based on a dislike of “presented gender.”

The court found that Tudor's allegations weren't too speculative to state a claim under Title VII and that she didn't wait too long before suing the university and RUSO.

Brittany M. Novotny in Oklahoma City and Law Office of Jillian T. Weiss P.C. in Tuxedo Park, N.Y., represented Tudor. Attorneys in the DOJ's Civil Rights Division-Employment Litigation Section represented the government. The Oklahoma State Attorney General's Office represented the university and RUSO.

To contact the reporter on this story: Patrick Dorrian in Washington at pdorrian@bna.com

To contact the editor responsible for this story: Susan J. McGolrick at smcgolrick@bna.com

Text of the opinion is available at http://www.bloomberglaw.com/public/document/United_States_v_Se_Okla_State_Univ_No_CIV15324C_2015_BL_221060_WD.