Oklahoma Jury Awards Transgender Professor $1.1 Million in Tenure-Denial Discrimination Suit

In 2015 we blogged about a lawsuit filed by the Department of Justice on behalf of a transgender professor, Rachel Tudor, who was denied tenure by her institution Southeastern Oklahoma State University.  At the time, we found it noteworthy that DOJ was taking the position that Title VII's prohibition on sex discrimination necessarily includes discrimination that targets someone for their transgender status, and we noted that a favorable outcome in this case would benefit transgender litigants under Title IX as well. 

2015 seems like a bygone era when it comes to the government's enforcement of civil rights, so it is particularly heartening to report that yesterday a jury of eight Oklahomans found in Tudor's favor and awarded her $1.165 million in damages. They reportedly found that the University was liable on three counts: denying Tudor the opportunity to apply for tenure in 2009-10 because of her gender, denying her again the following year because of her gender, and retaliating against her after she complained about workplace discrimination.

This really is a big deal.  A member of Tudor's legal team noted that this is the first transgender discrimination case under Title VII to make it to a jury trial. For her to win -- bigly -- in court that drew its jurors from a state not exactly known for being progressive on LGBT rights, shows that the law and culture are both shifting in favor of a necessary and expansive view of civil rights. 

DOJ Challenges Discrimination Against Transgender Professor

The Department of Justice has filed a lawsuit against Southeastern Oklahoma State University on behalf of a transgender professor who did not receive tenure after she transitioned on the job.  The university had hired Professor Rachel Tudor in 2004 to a tenure-track position in the English Department.  At the time, she presented as a man and went by a traditionally male name.  In 2007, she came out as transgender and began cultivating a female appearance consistent with her gender identity. She was later terminated in 2011 after having been denied tenure by the university.

She then filed a complaint with the EEOC, the federal agency that enforces employment discrimination laws. The EEOC investigated the case and determined that there was reasonable cause to believe that discrimination occurred.  When a settlement could not be reached at that point, the Justice Department agreed to litigate the case, as part of what the agency is calling a "joint effort to enhance collaboration between the EEOC and the Justice Department’s Civil Rights Division for vigorous enforcement of Title VII."  The case also provides the Justice Department an opportunity to put into action the position it outlined in a memorandum last December, in which it interpreted "discrimination on the basis of sex" to include discrimination on the basis of "gender identity and transgender status."  This expansive view of sex discrimination goes even farther than the protection some courts have found for transgender plaintiffs on the basis of gender nonconformity or the fact of their gender transition.  

The lawsuit contains several allegations that support the inference that the university's tenure decision was motivated by discrimination. For one, Professor Tudor had been recommended for tenure by her department chair.  At this university, such recommendations are routinely followed, yet in Tudor's case, the Dean overrode the decision.  Also, the lawsuit alleges that someone in the human resources department told Tudor that the Dean asked HR whether it would be permissible to fire Tudor because her "transgender lifestyle" offended his religious beliefs. 

While the case is filed under Title VII, Title VII decisions in the realm of sex discrimination are very influential in Title IX cases.  So a positive outcome in this case could translate to expanded federal protection for transgender students as well.

Is Tenure the Next Title IX Trend?

A lot of research has been devoted to the situation women in academia face in terms of getting jobs, getting tenure-tracks jobs (versus positions as adjuncts, lecturers, and temporary visiting positions). Though the number of women in graduate programs continues to grow and 2010 marked the first time women were awarded more doctoral degrees than their male colleagues, those numbers shift when we look at academic jobs. Fewer men actually start tenure-track positions, but more men have tenure. And there are fewer men in non-tenure-track positions.
But we have largely forgotten about Title IX when it comes to fighting the insititionalized sexism that occurs in academia. This is quite ironic given that Dr. Sandler's impetus for creating Title IX in the 70s came from her losing out on tenure-track positions to male colleagues. Has the time come to use the power of Title IX to being to remedy some of these issues over the treatment of female grad students and faculty members?

The Chronicle of Higher Education, another media outlet that has extensively covered the issue of women's equality in academia, published a very interesting piece this week about the applicability of Title IX to the treatment of women as grad students, post-docs, job applicants, and professors/instructors--especially when they are mothers or become pregnant.
We have discussed the protections Title IX provides to female student-athletes who get pregnant, and we have written about cases of Title IX being invoked when grad students have been retaliated against for complaining about equality. But there has been little--that we have seen at least--about the protections that Title IX affords grad students who hold positions as TAs and RAs.
This was a compelling piece because it brought together--for me anyway--a lot of these issues. We have noted, as have others, that Title IX and STEM is an emerging trend. And the Chronicle piece certainly addresses the issue of the difficulties women face as grad students and faculty in STEM fields. But the subtle and not-so-subtle cues women receive about becoming mothers exists across disciplines. I sat in a lecture in which a tenured, child-free female professor openly stated that she discourages her female graduate students from becoming mothers while in graduate school. Her "advice" was based on the statistics. The Chronicle article is right; we work very hard to just get the PhD; we don't want to hurt our chances in this very difficult job market and our advisers don't want that for us either. And we have seen our peers suffer for their choices to have children or go back to grad school after having children. I have witnessed my child-free female colleagues needlessly suffer through the tenure process. We have learned from what we have seen others go through and we make decisions about our lives based on what is clearly more than anecdotal evidence.
And it is not that these norms have gone unchallenged. Women have certainly brought lawsuits over the denial of tenure. A 2010 Chronicle article, discusses the cases brought by women under Title VII in the 80s and 90s. But as we have seen in other areas of discrimination law--including Title IX--proving intent to discriminate based, in these situations, on sex is becoming more and more difficult. The tenure process itself is so subjective and very few people want to make a federal case--literally--out of the discrimination they have faced. (In 2004 the AAUW published a report entitled "Tenure Denied: Cases of Sex Discrimination in Academia" which offers additional case history.)
What this week's Chronicle article provides though is more about the experiences of grad student and post-docs and the ways in which they can advocate for equality using Title IX. NASA has actually devised a questionnaire that schools can use in a self-study. Though it was written to assess gender equity in the sciences, it can--and should-- be applied across disciplines.
I predict that this issue will follow a path similar to that of sexual harassment and Title IX cases. Unclear or missing policies about discrimination will put a school at risk for a lawsuit. And when a few Title IX cases emerge around this issue--or even a watershed case--more will follow, in quick succession. A lot of schools have been slow to institute comprehensive sexual assault and harassment policies and are paying for it. Maybe they will have learned their lesson and be ahead of the curve when it comes to ensuring, at an institutional level, equal treatment of their female scholars.