Employment Law Daily Transgender prof prevails on sex discrimination, retaliation claims in tenure denial
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Tuesday, November 28, 2017

Transgender prof prevails on sex discrimination, retaliation claims in tenure denial

By Pamela Wolf, J.D.

An Oklahoma federal jury has awarded $1,165,000 in damages to a transgender English professor on her Title VII discrimination claims against Southeastern Oklahoma State University and the Regional University System of Oklahoma (collectively, the university). The jury found she was denied tenure in 2009-10 because of her gender, the university’s decision to deny her the chance to apply for tenure in the 2010-11 cycle was due to her gender, and that in retaliation for her workplace discrimination complaints the university denied her the opportunity to apply for tenure in the 2010-11 cycle. The professor failed to convince the jury to side with her on her hostile work environment claim, however.

The U.S. Department of Justice filed the initial complaint in March 2015. The professor sought to intervene 10 days later and filed her intervenor complaint in May 2015. The plaintiff and the DOJ worked together closely until the DOJ settled its claims with the university and was dismissed from the case on October 17, 2017.

Trouble from the beginning. The professor alleged that when she began working at Southeastern as a tenure-track assistant professor in 2004, she presented as a male and had a traditional male name. She was the first transgender professor at Southeastern. In the summer of 2007, she notified the university that she would be transitioning from male to female in the 2007-08 academic year. An HR employee purportedly warned her that the VP of Academic Affairs had inquired whether the professor could be fired because her “transgender lifestyle” offended his religious beliefs and had been told that he could not do so.

Among other things, her complaint alleged that after the professor began presenting as female, a counselor, who was the VP’s sister, warned her that she should take safety precautions because some folks were openly hostile toward transgender people and that the VP considered transgender people to be a “grave offense to his [religious] sensibilities.”

Discriminatory work environment. The complaint also described special instructions that HR employees purportedly gave the professor regarding her prohibited use of multi-stall women’s restrooms and wearing of certain female clothing, such as short skirts, as well as a health insurance exclusion that prevented her from having coverage for medically necessary treatment related to her transition. Non-transgender professors did not have similar restrictions, according to the complaint. Confined to using only single-stall, all-gender restrooms for persons with disabilities that were not located near her office, the professor alleged that she was unable to regularly use restrooms wherever she was on campus for the four years that she adhered to those instructions.

Tenure denial. Assistant professors at the university must obtain tenure by the end of their seventh year or their employment is terminated, according to the complaint. The professor detailed meetings with the dean to prepare for her tenure application. Despite learning that she was a transgender woman, the dean deliberately referred to her with inappropriate male pronouns in meetings, the professor said. The complaint alleged the professor’s attempts to obtain tenure and the subsequent denial in the face of positive recommendations that she attributed to gender discrimination. The tenure denial persisted on appeal, despite the Faculty Appellate Committee’s alleged ruling in the professor’s favor on her grievance. Purportedly despite rules that would otherwise permit her to do so, the professor was denied the opportunity to re-apply for tenure in retaliation for her discrimination complaints.

The case, Tudor v. Southeastern Oklahoma State University, was filed in the Western District of Oklahoma; the case is No. 5:15-CV-00324-C.

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