The world has changed, and therefore the workplace — and employers’ obligations– has along with it. People can now decide whether they want to identify as male, female or a number of other non-binary variants. As an employer, you don’t have to agree. But can you make employment decisions on that basis?
For example, let’s say you hire a male employee in a responsible position. Everything seems to be going fine. Then one day, he tells you, he is transitioning to and intends in the near future to identify and present as female. You are very uncomfortable with that news. In fact, you are so uncomfortable with that information that you decide you no longer want that employee working for you. You deny that employee advancement opportunities and ultimately take steps that lead to that employee’s termination. Then that employee sues, looking not only for money damages but also for back and/or front pay and reinstatement.
Money damages are bad enough, but can you really be made to reinstate that employee? With all that happened since that employee’s transitioning to female, with all the back and forth in litigation, you doubt that your other employees would get along with your former employee. Are you liable, and do you have to reinstate her? The answers: a) yes, most likely, and b) you very well might. Read on to see how and why… As always, let’s look at a real, live case example: The name of the case is Tudor v Southeastern Oklahoma State University ( No. 18-6102, 9/13/21). Here’s the nutshell version of what went down:
Dr. Rachel Tudor is a transgender woman and a dual citizen of the United States and the Chickasaw Nation. She earned a Ph.D. in English from the University of Oklahoma in 2000 and began working as a tenure-track Assistant Professor of English at Southeastern Oklahoma State University in 2004. At the start of her employment, Dr. Tudor presented as male, the gender apparently assigned to her at birth. In the Spring of 2007, she informed the University that she intended over the summer to transition to female and present as such. She returned in the Fall of 2007 presenting as female.
In the Fall of 2008, Dr. Tudor applied for tenure. She was denied. She reapplied in 2009. The faculty member tenure committee recommended she receive tenure. The University nonetheless denied the application–apparently a first in University history. In August 2010, she filed discrimination complaints with the faculty appellate committee, the University’s affirmative action officer, and the US Dept of Education, which referred her charge to the EEOC. She again submitted a tenure application in the Fall of 2010, her seventh year as a faculty member only to be told she would not be allowed to do so. Faculty members apparently cannot apply after their seventh year, and so ultimately, the University allowed her contract to lapse in 2011.
The US Dept of Justice (DOJ) filed a discrimination complaint in March 2015, alleging sex discrimination in violation of Title VII of the Civil Rights Act of 1964. Southeastern and the DOJ settled in August 2017. Meanwhile, Dr. Tudor intervened in the lawsuit against Southeastern, and so litigation between Dr. Tudor and Southeastern continued. Dr Tudor alleged sex discrimination, retaliation, and hostile work environment under Title VII.
At trial, a jury ruled in her favor on the sex discrimination and retaliation claims and awarded her $1.165 m in damages and back pay. The District Court then requested post-trial briefing on the issues of reinstatement and front pay. Dr. Tudor moved for reinstatement. The District Court denied the motion, but ultimately awarded her just over $60k in front pay, and ultimately capped the damages award at $300k (because Title VII caps damages at that amount). Both sides appealed to the 10th Circuit.
While the appeal was pending, the US Supreme Court ruled in Bostock v Clayton County that sex discrimination under Title VII includes discrimination based on a person’s gender identity. The 10th Circuit applied that ruling: “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,” the panel of judges wrote.
The 10th Circuit also rejected the University’s argument that reinstatement was not feasible due to hostility between her and the school (sometimes hostility can serve as a basis to deny reinstatement in discrimination cases). The court reasoned that workarounds were possible “including remote work and a clear set of workplace guidelines”. The 3-judge panel also cited the “insulated nature of tenured professorships,” which they reasoned would render it unlikely that she would face hostility if reinstated. OK, I know that was a bit long-winded for a nutshell version, but it couldn’t really be helped.
Now Let’s look at our takeaways.
Here’s the main takeaway: if you take an adverse employment action against an employee that deviates significantly from your usual practices, and if that employee is a member of a group protected under anti-discrimination laws, you are playing with fire.
Here’s another one: If you continue to take adverse employment actions against an employee after s/he has complained, whether internally, or to the EEOC or a state agency, you are then likely going to be found liable for retaliation. Title VII (and most employment laws) prohibit retaliation. Even if you prevail on the main discrimination claim, the retaliation claim stands on its own, and can often end up costing you more than the underlying claim.
How about this one: If you wouldn’t have thought of taking an adverse employment action before you knew the employee was a member of a class protected under the law (in this case a transgender employee) doing so now may well result in you being sued.
Finally: Consulting with your friendly employment counsel before you take the adverse employment action and finding out your options and the risks can avoid this mess altogether.
Have I made my point? I hope so. See you next time.
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