You may remember Dr. Rachel Tudor (who we last reported on in 2017), a transgender professor at Southeastern Oklahoma State University who was denied tenure and ultimately terminated from her position. Dr. Tudor sued the University under Title VII of the Civil Rights Act of 1964, alleging claims for discrimination and retaliation stemming from her transition in gender. The jury awarded Dr. Tudor more than $1 million in damages, but the Title VII statutory damages cap limited her recovery to $300,000. Dr. Tudor’s request to be reinstated to her position (with tenure) was denied and, although she requested more than $2 million in front pay, she was awarded only $60,000. Not surprisingly, both parties later appealed to the Tenth Circuit.

The appellate court upheld the jury’s decision on the merits of the claims, but ordered that she be reinstated to her former position and modified the recovery available to Dr. Tudor (increasing the amount of front pay she should receive prior to reinstatement).

Most importantly, the Tenth Circuit noted that there is a “strong preference for reinstatement” and it is the “preferred remedy” whenever possible. Reinstatement should only be denied when there is such “extreme hostility between the parties” that “a productive and amicable working relationship would be impossible.” Certainly, this does not require “complete harmony” between Dr. Tudor and the University or her coworkers, and “a certain amount of hostility and friction among workers is to be tolerated and expected, especially following litigation.” As the Court explained,

“Put another way, the extreme hostility test is not a measure of affection between an employee, employer, and colleagues. The fondness, or lack thereof, that they feel for one another does not necessarily correlate with their ability to work together. There are plenty of workarounds and solutions making reinstatement possible in cases where some animosity exists, such as a remote office, a new supervisor, or a clear set of workplace guidelines.”

Effectively, reinstatement should be granted in all but the most unusual instances of extreme workplace hostility.

Though the underlying merits of Dr. Tudor’s discrimination claim were fully and finally resolved by the United States Supreme Court’s intervening decision in Bostock v. Clayton County, the Tenth Circuit’s decision here is interesting because it highlights the importance of reinstatement as a default remedy whenever possible.

By Rebecca D. Bullard, rbullard@dsda.com