Transgender prof’s claim supported by restrictions on dress, makeup, bathrooms

By Lorene D. Park, J.D. — A transgender professor will reach a jury on her Title VII hostile work environment claim against the university that denied her tenure and dismissed her, based on her testimony that every day for four years she was restricted on which restrooms she could use, how to dress, and what makeup to wear; and that she was subjected to hostilities from administrators targeting her gender, including the use of an improper pronoun to refer to her. Denying the university’s motion for summary judgment, the federal court in Oklahoma also rejected the defendants’ argument that the employee failed to take advantage of preventative and corrective opportunities because, at the time of the alleged discriminatory conduct, the university’s policies did not address transgender persons. The employee’s discrimination and retaliation claims also survived (Tudor v. Southeastern Oklahoma State University, October 26, 2017, Cauthron, R.).

When the employee was hired as an assistant professor in 2004, she presented as a man. In 2007, consistent with her gender identity, the professor began to present as a woman. Although she allegedly performed her job well, her 2009 application to be promoted to the tenured position of Associate Professor was denied, purportedly overruling the recommendations of her department chair and other tenured faculty. She complained in 2010 but the university refused to let her reapply, despite its policies permitting reapplication. She was terminated at the end of the 2010-11 academic year because she had not obtained tenure.

Prior proceedings. The employee filed a discrimination charge with the EEOC, which found reasonable cause to believe discrimination occurred and referred the matter to the Department of Justice. The DOJ filed a complaint alleging sex discrimination and retaliation under Title VII, claiming the employee was denied tenure because of her gender identity, transition, and nonconformance with gender stereotypes. She then filed an intervenor complaint and the DOJ was dismissed as plaintiff. In 2015, the court denied the university’s motion to dismiss, rejecting its argument that transgender employees are not protected by Title VII. The defendants subsequently filed a motion for summary judgment.

Hostile work environment. Denying the motion, the court found triable issues on whether the employee demonstrated that she was subjected to a work environment permeated with intimidation and ridicule. Although the university argued that she alleged an insufficient number of incidents, the court disagreed. It was sufficient that she argued that “every day over the course of a four-year period she had restrictions on which restrooms she could use, restrictions on how she could dress, what makeup she could wear. She also was subjected to hostilities from administrators targeting her gender, such as using an improper pronoun to refer to her and other gender-based hostilities.” From this, a jury could infer the conduct was sufficiently severe and pervasive.

No policy on transgender persons, so no Faragher/Ellerth defense. The court also rejected the university’s argument that the employee failed to avail herself of preventative and corrective opportunities that were available to her. Though she never submitted a grievance regarding the alleged harassment, the evidence indicated that at the relevant time the university did not have a policy addressing transgender persons and the cases cited by the employee require a specific policy before a defendant is entitled to rely on the Faragher/Ellerth defense.

Discrimination. Summary judgment was also denied on the employee’s sex discrimination claim. The court rejected the university’s attempt to re-raise the previously-rejected argument that Title VII does not protect transgender status. And though the university argued that the denial of tenure was a subjective matter based on decisions made at the administration level, to which the court should grant deference, the court found sufficient evidence of pretext based on procedural irregularities. For example, the decisionmakers initially refused to give the employee any reason for denying tenure and later, one of the same decisionmakers allegedly planted a backdated letter in the employee’s portfolio spelling out some rationales for the denial. The irregularities demonstrated some weakness or implausibility in the university’s assertion that the employee’s tenure submission was clearly insufficient. Moreover, the employee offered an expert report demonstrating that the evaluations of the employee’s scholarship and service did not match the articulated criteria for tenure.

Retaliation. The retaliation claim also survived because the university again relied on its already-rejected argument that the employee was not entitled to protected status under Title VII. Further, the court agreed with the employee that she engaged in protected activities when she filed an internal grievance and sent a letter to the U.S. Department of Education complaining of discrimination.

Source: Transgender prof’s claim supported by restrictions on dress, makeup, bathrooms