Dr. Rachel Tudor.
Less than a month after a federal district court judge refused to dismiss a transgender woman’s job discrimination case against Southeastern Oklahoma State University, a jury has found in favor of the plaintiff, Dr. Rachel Tudor, in the amount of $1.165 million.
Tudor was a male-identified tenure track faculty member at the university when she informed officials at Southeastern Oklahoma that she was transitioning.
Tudor brought her lawsuit against the university under the employment provisions of Title VII of the 1964 Civil Rights Act barring discrimination based on sex.
Southeastern Oklahoma State University, undaunted by judge’s rebuff, went to jury trial
According to District Judge Robin J. Cauthron’s October 26 opinion allowing her to proceed with her case, Tudor alleged that after informing officials of her plans, “she began suffering significant discrimination and harassment. The alleged discrimination culminated in denial of her application for tenure and dismissal from the University.”
The motion on which Cauthron ruled was the university’s bid for summary judgment on all counts. But the judge found Tudor’s pleadings sufficient to ground actionable charges under Title VII and that material questions of fact had to be determined.
Cauthron rejected the attempt by the university to minimize the frequency and severity of incidents on which Tudor relied in alleging a hostile environment. She also noted that in prior rulings the court had rejected the university’s argument that 10th Circuit precedent made Title VII protection unavailable to a transgender woman alleging discrimination because of her gender identity. The university was relying on a frequently-cited case from 2007, Etsitty v. Utah Transit Authority. Employers facing discrimination claims routinely overstate the significance of that precedent, which, in any case, predated significant developments in Title VII employment case law.
There is now widespread agreement in the federal judiciary that employees who transition are protected under the sex discrimination ban in Title VII, although some employers haven’t yet caught up to this understanding.
Cauthron also found that Tudor’s complaint alleged multiple plausible grounds for a retaliation claim.
The judge’s denial of the university’s motion for summary judgment on all counts came in a strongly-worded opinion, and writing then in LGBT Law Notes, this reporter suggested “the university would be well-advised to seek a settlement.”
It did not follow that course of action, and on November 20, an Oklahoma jury agreed that Tudor had suffered discrimination barred by federal law.
Tudor is represented by Brittany M. Novotny of Oklahoma City, Ezra I. Young, then with the Law Office of Jillian T. Weiss in upstate Tuxedo Park, and Marie E Galindo of Lubbock Texas. Tudor’s suit was filed jointly with the Justice Department and the Equal Employment Opportunity Commission, though the DOJ, under Attorney General Jeff Sessions, withdrew from the case earlier this year, exemplifying the Trump administration’s rejection of conclusions on this issue shared by President Barack Obama’s two attorneys general.
The attorney general of Oklahoma, who defended the university in this case, had no immediate comment on the jury verdict, but it would not be surprising if an appeal were filed with the 10th Circuit, especially since the 2007 case makes it uncertain as to how far it is willing to go in recognizing gender identity discrimination claims under Title VII. But the trend in other circuits is in a clear direction of broader coverage. — Additional reporting by Paul Schindler
