A recent decision by an Oklahoma federal jury gives an inspiration to employees who suffer discrimination at work because of their gender.
In a verdict on December 4, the jury awarded a professor $1.16 million in damages after they found out during the trial that (1) she was denied tenure in 2009-10 because of her gender, (2) she was denied opportunity to apply for tenure in the 2010-11 academic year because of her gender, and (3) the university retaliated against her after she protested the workplace discrimination.
The case was filed in 2015 by the DOJ and later that year joined by the involved person herself, Dr. Rachel Tudor.
Tudor worked as a tenure track Assistant Professor with Southeastern Oklahoma State University from 2004 until her termination in 2011.She presented as a man and carried a traditionally male name when she began teaching at the school.
In the academic year 2007 or 2008, Dr. Tudor notified and started presenting herself at school as a woman, “wearing women’s clothing, styling her hair in a feminine manner, and going by the traditionally female name Rachel,” the case complaint said.
The change in Dr Tudor had an adverse impact on her application for tenure in the following academic year. The authorities in the school denied Tudor’s application, despite the positive recommendation of the school’s review committee. Parents and students reportedly rated her ok. She also received threats directly related to her gender preference. In her complaint, she said, she was told that “she should take safety precautions because some people were openly hostile towards transgender people.”
Dr Tudor named the school authorities who went against the same school review committee’s recommendation. It was at first just the school dean and the vice-president. The two denied her tenure, rejecting the committee’s recommendation without explaining why. Dr. Tudor appealed the decision. But efforts to correct it through grievance and an appeal failed as Dr Tudor said the school failed to follow normal appeal procedures. In 2010, the school president denied Tudor’s request for tenure.
After that, the school barred her from re-applying for promotion and tenure saying that doing so was not in the “best interests of the university.”
The following year, in 2011, the university fired Dr. Rachel Tudor. In 2015, the U.S. Department of Justice’s (DOJ) Civil Rights Division filed a complaint against Southeastern Oklahoma State University alleging that the school had engaged in gender-based discrimination in denying Dr. Tudor tenure.
Eventually, the school tried to explain that Dr. Tudor did not receive tenure because she was supposedly deficient in the areas of “research/scholarship” and “university service.” But in the complaint, Dr. Tudor’s qualifications were cited as “comparable, if not superior to, the qualifications of at least three other similarly-situated, non-transgender English professors who were considered for, and received, tenure during Dr. Tudor’s time” at the school.
What this means to others suffering discrimination at work
Title VII protection by law is available for those undergoing discrimination related to their gender-identity. Employers cannot lawfully discriminate against LGBT individuals. The discrimination can be prohibited and the employer will pay damages for sex discrimination under Title VII and other federal statutes prohibiting sex discrimination. The message of the law is about tolerating or respecting non-conformity to gender stereotypes.
But the individuals involved do not have to be LGBT to avail of such legal protection against sex stereotyping preventing them from getting the jobs they are qualified for. Straight men or women behaving in ways not commonly stereotyped for their gender can also file for protection, redress and damages. In a 1989 Supreme Court decision, it favored the complaint of a woman lawyer who was barred from being a partner because the firm found her too aggressive, a trait more stereotyped or the accepted norm for men. It is the Price Waterhouse decision and its impact is sweeping against discrimination based on gender stereotyping, both of LGBT and straight supposedly behaving in ways not yet considered as the norm at the time.
The Supreme Court said, “we are beyond the day when an employer could evaluate employees by assuming or insisting that they matched the stereotype associated with their group, for‘ [i]n forbidding employers to discriminate against individuals because of their sex, Congress intended to strike at the entire spectrum of disparate treatment of men and women resulting from sex stereotypes.’” (Los Angeles Dep’t of Water & Power v. Manhart, 435 U.S. 702, 707 n.13 (1978)).
A simple rule of thumb in evaluating if one is suffering from gender-based discrimination at work is checking to see if the discrimination would not occur but for the person’s sex. (Smith v. City of Salem, 378 F.3d 566, 574 (6th Cir. 2004)
Find out about discrimination at work and what you can do to correct it here.