Transgender Professor Wins Nearly $1.2M in Sex Bias Case

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By Patrick Dorrian

A federal jury in Oklahoma awarded a transgender college professor $1.17 million for workplace discrimination, finding stereotypes about gender played a role in her inability to achieve tenure at Southeastern Oklahoma State University.

Rachel Tudor established that the university’s tenure denial in 2009-2010 and its decision to deny her the chance to apply for tenure in 2010-2011 were based on gender stereotyping, in violation of federal sex discrimination law, the jury’s Nov. 20 verdict said.

The latter decision by the university also was the result of retaliation for Tudor’s complaining about the earlier bias, the jury found ( Tudor v. Se. Okla. State Univ. , W.D. Okla., No. 5:15-cv-00324, jury verdict 11/20/17 ). Tudor was a tenure track assistant professor in SOSU’s English department from 2004 to 2011.

The case is noteworthy because it’s the first time a jury has ruled on a claim by a transgender worker alleging sex discrimination under Title VII of the 1964 Civil Rights Act, Tudor’s lead attorney, Ezra I. Young, told Bloomberg Law Nov. 21. There have been a few similar cases that were decided by way of a “bench trial” before a judge alone, but “I believe this is the first case to go to a jury at all under Title VII,” said Young, who is with the Law Office of Ezra Young in Brooklyn, N.Y.

Transgender people for a long time haven’t trusted bringing their job bias claims to a jury, he said. This decision shows “now you can,” Young said.

“Discrimination is discrimination. It doesn’t matter who you are,” Young said. A jury of Oklahomans decided it wasn’t right that Tudor was subjected to sex-based discrimination. “It really is as simple as that,” he said.

University Says It Respects Verdict

The university indicated in a statement provided to Bloomberg Law Nov. 21 that it respects the jury’s decision.

“Southeastern Oklahoma State University places great trust in the judicial system and respects the verdict rendered today by the jury. It has been our position throughout this process that the legal system would handle this matter, while the University continues to focus its time and energy on educating students. All legal questions should be directed to the Oklahoma Office of the Attorney General,’’ Sean Burrage, the university’s president, said in the Nov. 20 statement.

The state attorney general’s office told Bloomberg Law Nov. 21 that “several legal issues” remain before the court. “We decline to comment until those legal issues are resolved,” Terri Watkins, the office’s director of communications, said.

National Issue

The trial before Judge Robin J. Cauthron of the U.S. District Court for the Western District of Oklahoma doesn’t appear to have involved the hot-button question of whether transgender workers are expressly covered under the sex discrimination provisions of federal job bias law without needing to prove illegal gender or sex stereotyping occurred, a position advanced by some federal enforcement authorities and embraced by a federal appeals court in Chicago.

The U.S. Supreme Court is considering whether to review a federal appeals court in Georgia’s decision that reached the opposite conclusion from the Chicago court, and many lawyers and advocates believe the justices ultimately will weigh in on the question in the near future if they decide not to hear the Georgia case.

The jury wasn’t—and wouldn’t—be asked to consider that question, because it’s a purely legal issue and the jury’s role is to determine the facts, Young said. The trial judge did, however, give the jury an instruction stating that Title VII doesn’t protect workers from discrimination because they are transgender, he said. The instruction provides that the jury was required to find the university acted as it did because of Tudor’s gender or because it perceived her as not conforming to traditional gender stereotypes in order to rule in her favor.

University Originally Sued by DOJ

The university was originally sued by the Department of Justice, which brought the case on Tudor’s behalf in March 2015. Tudor intervened in the lawsuit in May 2015, asserting her own claims.

The university and the DOJ later reached a settlement of the government’s claims, and the court Oct. 17 granted the government’s motion to be dismissed from the case.

The jury rejected Tudor’s claim that she experienced a hostile work environment. She alleged that she faced daily restrictions on how she could dress and appear at work and on which restrooms she could use during the four years she worked for the university after announcing she was transitioning from male to female.

Brittany M. Novotny in Oklahoma City and Marie E. Galindo of the Law Office of Marie E. Galindo in Lubbock, Texas, also represented Tudor. The state attorney general’s office and James E. Dunn & Associates PLLC represented SOSU and the Regional University System of Oklahoma.

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

To contact the editor responsible for this story: Terence Hyland at thyland@bloomberglaw.com

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