The Employer's Legal Resource: Oklahoma Federal Court Recognizes Transgender Professor's Hostile Work Environment Claim Under Title VII
The U.S. Department of Justice joined a transgender professor in filing a federal lawsuit against Southeastern Oklahoma State University and the state university system's Board of Regents, alleging discrimination based on sex and hostile work environment in violation of Title VII. Dr. Rachel Tudor, who was born a male and went by a traditionally male name, worked as an assistant English professor at the University beginning in 2004. In the summer of 2007, Tudor announced her intention to transition from male to female and she began to present as a woman at the University during the 2007-2008 academic year. Tudor applied for but was denied tenure and promotion in 2009, despite receiving a favorable tenure recommendation from a promotion committee and the department chair, as well as positive references from several other English professors at the University. This was apparently the first time the University had denied an English professor's application for tenure and promotion after the professor had obtained positive recommendations from the committee and department chair. The University refused to allow Tudor to reapply for tenure the following year, despite its permissive policy regarding reapplication for professors who had previously been denied tenure or promotion. Tudor was ultimately fired in 2011, pursuant to the University's policy to terminate assistant professors who do not obtain tenure within seven years of starting their employment.
Tudor's claims of discrimination and hostile work environment stem from her transition in gender and the University's negative reaction to that change. In order to prove a hostile work environment claim, Tudor must show that: (1) she is a member of a protected group; (2) she was subject to unwelcome harassment; (3) the harassment was based on her protected characteristic; and (4) the harassment was sufficiently severe or pervasive to alter a term, condition, or privilege of her employment and it created an abusive working environment. The University filed a motion to dismiss Tudor's claims, arguing that she could not satisfy the first element above because transsexual individuals are not members of a protected class under Title VII. The federal court in the Western District of Oklahoma rejected the University's argument and denied its request to dismiss the lawsuit, concluding that Tudor's claims could proceed because she is a member of a protected class based on her gender (though the court did not say that transgender status is a protected characteristic under Title VII in and of itself).
The University based its argument on a 2007 Tenth Circuit case, Etsitty v. Utah Transit Authority, which held that "transsexuals may not claim protection under Title VII from discrimination solely based on their status as a transsexual." However, the Etsitty case went on the clarify that, "like all other employees, such protection extends to transsexual employees if they are discriminated against because they are male or female." The court in this case reasoned that the University's actions alleged by Tudor clearly occurred because she was female, yet the University regarded her as male; thus, the alleged actions taken against her were based upon the University's dislike of her presented gender. Etsitty recognized this distinction in a footnote, stating that "sex stereotyping based on a person's gender non-conforming behavior is impermissible discrimination, irrespective of the cause of that behavior; a label, such as transsexual, is not fatal to a sex discrimination claim where the victim has suffered discrimination because of his or her gender non-conformity." Based on this reasoning, the court concluded that the alleged discrimination occurred because of Tudor's gender--specifically, as viewed by the University, her gender non-conformity--and she therefore falls within a protected class.
Though the court's ruling addressing the transgender issue is brief, and relates only to Tudor's initial burden to state a claim and not whether she will ultimately prevail in litigation, it is nonetheless significant in that it is the first court in Oklahoma to recognize that transgender employees may be able to pursue claims under Title VII.
By Rebecca D. Stanglein, email@example.com