Under Title VII of the Civil Rights Act of 1964 (“Title VII”), discrimination based on sex is illegal in most contexts, including the workplace. Specifically, Title VII states that an employer may not discriminate against an employee based on the employee’s race, color, religion, sex, or national origin.
On its face, Title VII does not prohibit discrimination based on gender identity. But transgender individuals facing discrimination have argued that Title VII’s ban on sex discrimination should also apply to discrimination based on gender identity. A recent jury verdict supports this argument, to the tune of over $1 million, in Tudor v. Southeastern Oklahoma State University.
The Facts of the Case
Dr. Robert Tudor was hired by Southeastern Oklahoma State University (“SOSU”) in 2004 as a professor. At that time, Dr. Tudor identified as a male. Starting with the 2007 school year, Dr. Tudor began presenting as the female gender, wearing women’s clothing, and using the name Rachel.
Many of Dr. Tudor’s colleagues at SOSU did not respond well to her transgender identification. Every day, Dr. Tudor was on the receiving end of numerous forms of harassment, including:
- being told how she had to dress,
- being told what makeup she was allowed to wear,
- deliberately being referred to with the male pronoun by school administrators, and
- being warned that she should take safety precautions because many people were hostile against transgender individuals.
In 2009, Dr. Tudor applied for tenure. The review committee recommended that Dr. Tudor be tenured, but her Dean and the Vice President ignored this recommendation, denying tenure without explanation. Dr. Tudor reapplied for tenure in 2010 and was again denied.
The only explanation she received for her tenure denials was that she lacked enough “research/scholarship” and “university service.” Dr. Tudor was the first professor in her department at SOSU to be denied tenure despite receiving a tenure recommendation from the review committee.
Dr. Tudor tried to reapply for tenure later in the year, but SOSU denied her request. Dr. Tudor followed up with a complaint to the U.S. Department of Education in 2010 and then the Equal Employment Opportunity Commission (“EEOC”) in 2011. Later in 2011, SOSU fired Dr. Tudor for failure to achieve tenure within the allowed time frame.
In March 2015, the Civil Rights Division at the U.S. Department of Justice (“DOJ”) filed a lawsuit against SOSU alleging that it discriminated against Dr. Tudor on the basis of her gender and gender identity in violation of Title VII. The DOJ also alleged that SOSU unlawfully retaliated against Dr. Tudor when she filed her complaint with the U.S. Department of Education.
In May 2015, Dr. Tudor joined the DOJ’s case against SOSU and added a claim for creating a hostile work environment. In 2017, with the change in administration in the White House, the DOJ settled its case with SOSU and withdrew from the case, leaving Dr. Tudor to continue.
Dr. Tudor’s case was heard by a jury in November 2017 in federal district court in Oklahoma. On November 20, 2017, the jury found in favor of Dr. Tudor on her retaliation and gender discrimination claims, dismissing her hostile work environment claim. Despite only winning two of her three causes of action, the jury awarded Dr. Tudor $1,165,000.
The Significance of Dr. Tudor’s Legal Victory
Dr. Tudor’s case is important because it’s one of the first major victories for transgender plaintiffs in which gender identity was found to be a protected class under Title VII. This is critical because discriminating against a person is not itself illegal unless the discrimination is based on identification with a protected class.
A protected class refers to a group of people who share a particular characteristic, such as race or gender, that the law has determined deserves legal protection.
For example, an employer can’t refuse to hire an applicant because of his race, but it can refuse to hire him because he drives a Ford instead of a Chevy. In this example, vehicle preference is not a protected class, but race is.
Summing It Up
- Title VII prohibits discrimination the basis of sex. There has been disagreement as to whether “sex” under Title VII includes gender identity.
- Now, a federal court has held that Title VII’s prohibition of discrimination based on sex also applies to gender identity discrimination.
Have you been discriminated against because of your gender or gender identity? Are you currently struggling with a hostile workplace? Please contact our office for help. We’d be happy to discuss your situation and help you understand your rights.