Updated September 14, 2021
VICTORY: On September 13, 2021, the Tenth Circuit delivered a tremendous win for Dr. Rachel Tudor, ordering the district court to reinstate her to a tenure position at Southeastern Oklahoma State University and correctly recalculate her front pay damages award. As NWLC’s amicus brief argued, the Tenth Circuit found that the district court improperly concluded reinstatement would not be possible due to alleged hostility between Dr. Tudor and Southeastern. Instead, because of the legal presumption in favor of reinstatement and the particularly low risk of extreme hostility between the parties here, the court reversed and ordered that Dr. Tudor be reinstated at the university with tenure. The Tenth Circuit also agreed with NWLC’s amicus brief on the issue of Dr. Tudor’s front pay determination, finding that the amount the district court used to calculate her compensation rate was “verifiably incorrect” and ordering the court to recalculate. On remand, the lower court will be required to award Dr. Tudor monetary damages using the correct annual compensation figures calculated from the time that she would have been granted tenure when she first applied in 2009-10 until the time of her reinstatement. While Dr. Tudor also challenged the district court’s application of Title VII’s damages cap, which reduced her jury award, the Tenth Circuit disagreed on that point, and affirmed the jury award for backpay and compensatory damages.
The Tenth Circuit also rejected Southeastern’s cross-appeal in its entirety, heavily citing the Supreme Court’s decision in Bostock v. Clayton County, which overruled previous 10th Circuit precedent and held that discrimination against transgender employees is sex discrimination under Title VII. In sum, the Tenth Circuit granted the relief that NWLC and the group of amici requested in our brief, ensuring that Dr. Tudor will be reinstated to her job with tenure and compensated to be made whole and, this should also help deter employers from future discriminatory conduct.
Congratulations to Dr. Tudor, to our private law firm counsel, Erica Lai, who argued for NWLC and amici during the Tenth Circuit argument, Danielle Morello, and the rest of the Cohen & Gresser LLP team who represented NWLC and amici, and to Dr. Tudor’s attorney.
Just about one year ago, we told you why we were grateful for Dr. Rachel Tudor and celebrated her jury win in her discrimination case. Today, we recognize how she has remained resolute in her fight. The National Women’s Law Center along with 31 additional organizations are formally supporting her case through an amici brief filed with the Tenth Circuit, along with our law firm partner, Cohen & Gresser, LLP. After Dr. Tudor won at trial in November 2017, the federal district court still refused to allow her to return to a tenure-track position at her previous job or provide her with appropriate front-pay for lost earnings. As she appeals this decision, NWLC is in solidarity with Dr. Tudor and submits this brief to emphasize that workers who fight back when faced with sex discrimination must receive a just and appropriate remedy.
To recap: Dr. Tudor is a 54-year old Native American woman who is transgender and who worked as a tenure-track professor of English at Southeastern Oklahoma State University between 2004 and 2011. In 2007, she informed Southeastern that she would be transitioning and that her gender identity was female. Following this, she was denied tenure and terminated even though her own students and the English Department supported her tenure application. After fighting her case in the courts, she won her jury trial on November 20, 2017. Although the jury awarded her $1,165,000, the court both lowered this amount to $300,000 and then awarded her only front-pay wages in an amount of $60,040.77. This front-pay figure was calculated without the court undertaking any meaningful analysis as to her ability to return to a tenure job in English at Southeastern as she wanted, or what amount would make up for her lost future earnings.
Remarkably, the federal district court claimed that it was not feasible to reinstate Dr. Tudor to her previous position because of alleged hostility between the parties and Southeastern’s unsubstantiated assertion that she was not qualified for tenure. However, Dr. Tudor is ready and willing to return to this position, particularly given the lack of available tenure and tenure-track English department positions around the country. Also, courts have made clear that employers may not cite litigation-related hostility as a reason to refuse someone a job. Finally, as the jury found, Dr. Tudor was only denied tenure because of sex discrimination.
The fight for justice for Dr. Tudor is far from over.
As noted above, the National Women’s Law Center is filing an amici brief, arguing that the Tenth Circuit should require the federal district court to reassess the remedies awarded to Dr. Tudor, and either (1) reinstate Dr. Tudor to her tenure position at Southeastern or (2) otherwise make her whole by awarding her significant front pay until she obtains another tenure-track position in English at another comparable academic institution.
Since leaving her position, Dr. Tudor has applied to hundreds of comparable positions around the nation and she has not received a single interview for a tenure-track job. Any individual who challenges discrimination in court risks retaliation or difficulty in finding work, but the odds are particularly steep for Dr. Tudor, both because of the discrimination she would face as an older, transgender, Native American woman, and because of the particular difficulties posed by the academic job market, and specifically in fields such as English where there are very few openings across the country.
Further, in the time it has taken this case to wind its way through the courts, Southeastern has significantly reformed its own policies and procedures with regard to transgender employees. Dr. Tudor herself attests she felt welcomed, respected, and safe during a recent presentation she gave on campus at the invitation of a professional organization. Notably, many of the individuals involved in this discrimination against her are no longer affiliated with the institution. Also, her own department and students supported her during her tenure application and continue to support her return. Ultimately, the federal court should be listening to Dr. Tudor and her desired outcome following this case that she won before a jury trial, instead of discounting her lived experiences.
The legal issues at stake in this matter are important to all employees facing workplace discrimination, but they are particularly important for trans and Native women, two groups who have faced historically high rates of unemployment and discrimination. What’s more, the federal government is seeking to further roll back civil rights protections for trans and gender non-conforming people. Employees who challenge discrimination should be made whole – not further punished by the legal system for bringing their claims. Dr. Tudor, we are with you and will continue to fight for you.