Why We’re Thankful for Dr. Rachel Tudor
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.
A federal jury on Monday awarded a transgender professor, Dr. Rachel Tudor, $1.165 million in a groundbreaking Title VII sex discrimination case. This case is significant for a number of reasons. First, it is the inaugural sex discrimination case with a transgender plaintiff to go before a jury. Second, it is notable because of the Justice Department’s recent departure from evolving caselaw and its recent pronouncement that it will no longer interpret Title VII’s prohibition of sex discrimination to include discrimination on the basis of gender identity. Dr. Tudor’s case also highlights the importance of continued resistance on all fronts to claims of a religious exemption from law that prohibit discriminating against people on the basis of their sex or sexual orientation.
Dr. Tudor worked as a tenure-track professor of English at Southeastern Oklahoma State University between 2004 and 2011. In 2007, she informed the University that she would be transitioning and that her gender identity was female. Shortly thereafter, Dr. Tudor received a phone call from a human resources employee who warned Dr. Tudor that the University’s Vice President for Academic Affairs, Douglas McMillan, had asked the human resources employee whether they could fire Dr. Tudor because her “transgender lifestyle” offended his religious beliefs. Then, during the 2007-2008 school year, Dr. Tudor was again warned, this time by the Director of the University’s Counseling Center (who is the sister of Vice President McMillan), that McMillan considered transgender people to be a “grave offense to his religious sensibilities.”
Dr. Tudor continued to experience discrimination from the University including being instructed to only use certain restrooms, and to not to wear specific “female” articles of clothing. Then, in the fall of 2009, despite a positive recommendation from her Promotion and Tenure committee, Vice President McMillan and another Dean denied her tenure without explanation, and systematically undermined her attempts to appeal the decision. In the spring of 2011, the University terminated Dr. Tudor’s employment.
In 2014, then Attorney General Eric Holder indicated that the Justice Department, under President Obama, agreed with the legal position that discrimination against transgender individuals is covered under the sex discrimination prohibition in Title VII of the Civil Rights Act of 1964. In 2015, the Department of Justice sued the University, alleging that Dr. Tudor was discriminated against, denied tenure, and fired because of her sex.
In a landmark decision, the Oklahoma Court denied the University’s Motion to Dismiss, definitively stating that Dr. Tudor is a member of a protected class under federal law and that these actions against her occurred because of her sex. United States v. Se. Oklahoma State Univ., No. CIV-15-324-C, 2015 WL 4606079, at *2 (W.D. Okla. July 10, 2015).
But in the fall of 2017, after two and a half years co-litigating her claim, the Department of Justice under President Trump abandoned Dr. Tudor’s claims. Indeed, Trump’s Attorney General Jeff Sessions released a memo reversing the 2014 Department Of Justice statement that had confirmed that discrimination against transgender individuals is covered under the sex discrimination prohibition in Title VII of the Civil Rights Act of 1964.
Following this about-face from the U.S. government, Dr. Tudor continued on with private counsel, and in front of a jury of her peers, she prevailed in her claim of sex discrimination yesterday. Dr. Tudor is represented by the Law Office of Ezra Young and was also represented during the trial by Brittany Novotny from Oklahoma and Marie Galindo, from Lubbock, Texas.
Recently, the National Women’s Law Center has taken several actions to fight the Trump administration’s efforts to expand religious justifications for discrimination, including, for example, suing to push back against interim final rules that allow employers and universities to cite religious or moral objections in order to deprive employees and students of birth control coverage. https://nwlc.org/press-releases/lawsuit-filed-against-trump-administration-for-rules-denying-women-birth-control-coverage/
In addition, NWLC filed an amicus brief in the Masterpiece Cakeshop case arguing that to allow a business to disregard non-discrimination protections under the guise of religion and free speech would risk undermining the rights of all of us, including women and girls, to be free from discrimination. In Masterpiece Cakeshop, the Justice Department argued for a religious exemption for the business from applicable civil rights laws. Notably, as outlined in our amicus brief, courts have repeatedly rejected religion as a defense to both sex and race-based discrimination.
In the latest chapter, Trump’s Department of Health and Human Services, (HHS) is now asking the public for suggestions on how to expand the use of religious beliefs to discriminate and deny health care. This week, NWLC is seeking comments to collectively raise our voices to oppose broadening of so called, “religious refusals.” The mission of HHS is to put the health and well-being of the public first. HHS should not be looking for ways to make it easier for entities to let religious views dictate patient care. Instead, HHS should follow its mission and commit to protecting all individual’s health and well-being. It should ensure that all entities participating in HHS programs adhere to federal nondiscrimination requirements and requirements to provide patients with evidence-based essential care. HHS should seek ways to address the real discrimination that women, LGBTQ people, and others face every day. If you wish to send a message to HHS, the deadline for comments is Friday, November 24, 2017. You may include your comments by clicking here.
Congratulations to Dr. Tudor and her counsel. This win is all the more significant when seen in light of these recent efforts across the country to use religious objections as a basis to discriminate, not just in employment, but also in healthcare, public accommodations and more. NWLC stands with all who are facing discrimination and will fight back to help ensure civil rights for all of us.