Appeals court says university must hire back trans professor fired for her gender identity
Three-judge panel finds lower-ranking university officials gave biased assessments to prevent Rachel Tudor from gaining tenure.
A federal appeals court has ordered an Oklahoma university to reinstate a transgender English professor — with tenure — after ruling that she was denied tenure and ultimately fired after transitioning on the job.
On Monday, a three-judge panel of the Denver-based 10th U.S. Circuit Court of Appeals unanimously rejected Southeastern Oklahoma State University’s claim that it could not reinstate professor Rachel Tudor due to hostility created over the six years of back-and-forth litigation since the lawsuit, alleging sex discrimination, was launched in 2015.
The Obama-era U.S. Department of Justice sued the university on Tudor’s behalf, marking the first time it had filed a sex discrimination lawsuit on behalf of a transgender person. The department settled with the school in 2017, but Tudor had intervened in the case after former President Donald Trump was elected, and chose to pursue the lawsuit on her own, eventually winning a jury verdict of $1 million later that year.
U.S. District Judge Robin Cauthron, of the Western District of Oklahoma, later lowered the verdict to $300,000 in 2018, citing caps on damages under Title VII of the Civil Rights Act of 1964, plus about $60,000 in “front pay” to reflect her lost future earnings. Cauthron also denied Tudor’s request for reinstatement after the school claimed that the hostility rising from the lawsuit led many other faculty members to oppose her return and did not have the money to pay her, reports Reuters.
The university appealed the jury’s verdict, and Tudor appealed the calculation of front pay and the decision denying her reinstatement.
In their decision, the 10th Circuit judges said the verdict in Tudor’s favor in that discrimination lawsuit made clear that Tudor would have been granted tenure if not for her gender identity, pointing to statements made by university officials about Tudor’s appearance and lifestyle, the fact that a faculty committee had voted 4-1 to grant her tenure, and expert testimony that Tudor was more qualified than other professors in her department who were granted tenure.
“After careful review of the complete evidence in the light most favorable to Dr. Tudor, we conclude that it was clearly sufficient for a jury to find by a preponderance of the evidence that Dr. Tudor was denied tenure in 2009-10, as well as denied the opportunity to reapply in 2010- 11, on the basis of sex, and that Southeastern refused to allow her to reapply in 2010- 11 in retaliation for her Title VII complaints,” Circuit Judge David Ebel wrote on the court’s behalf.
The 10th Circuit panel found, in particular, that lower-ranking officials within the university presented a biased review of Tudor’s credentials and performance — based on their own animus towards Tudor because of her gender identity — to then-University President Larry Minks, which colored his perception of the situation and led him to deny Tudor tenure.
The judges also found that Cauthron had erred in refusing to reinstate Tudor and in calculating front pay, and rejected the university’s arguments that it could not reinstate her because of bad blood between Tudor and the university, noting that there were workaround and solutions — such as assigning her a new supervisor, or allowing her to work remotely — that made it possible for her to do her job without interacting with those officials who had targeted her for termination.
“[A] tenured university professor holds an insular position that can effectively operate without the need for extensive collaboration with colleagues or school administrators,” Ebel wrote.
Related: Gay professor sues Christian university after being denied full-time position
The judges also applied the Supreme Court’s 2020 ruling in the Bostock v. Clayton County case, which found that anti-transgender discrimination in employment is a form of sex-based discrimination — a finding that overturned the conservative 10th Circuit’s previous precedent under which transgender people were barred from pursuing sex discrimination charges.
“In the wake of Bostock, it is now clear that transgender discrimination, like that complained of by Dr. Tudor, is discrimination “because of sex” prohibited under Title VII. Accordingly, Southeastern concedes that Bostock invalidates its arguments…that transgender discrimination is not enough alone to make out a Title VII violation,” Ebel wrote.
Tudor’s legal team later released a statement in response to the 10th Circuit’s decision, saying she looks forward to being “the best professor she can be,” reports The Associated Press.
“As injurious as the sex discrimination and retaliation were to Dr. Tudor, she did not consider it merely personal,” the statement said. “Rather, she was a symbol to those who discriminated against her. They wanted to create an environment where certain views and certain people are punished to create fear and shame instead of self-confidence and opportunity for all.”
Southeastern Oklahoma State University President Thomas Newsom declined to discuss the decision, telling The AP: “The University will continue to focus its efforts on educating students as the legal system moves forward.”
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