U.S. District Judge Robin J. Cauthron denied a motion to dismiss a Title VII sex discrimination claim filed by the Justice Department on behalf of a transgender woman against Southeastern Oklahoma State University, alleging that she suffered discriminatory treatment and a denial of tenure after she announced her intent to transition. %United States v. Southeastern Oklahoma State University%, 2015 U.S. Dist. LEXIS 89547 (W.D. Okla., July 10, 2015).
Dr. Rachel Tudor, the University faculty member who filed a discrimination complaint with the Equal Employment Opportunity Commission (EEOC), intervened in the lawsuit as the co-plaintiff. She is represented by Brittany Novotny of Oklahoma City and Ezra I. Young and Jillian T. Weiss of the Law Office of Jillian T. Weiss PC of New York.
Judge Cauthron rejected the University’s claim that Dr. Tudor’s complaint to the EEOC was insufficient to meet the requirement to exhaust administrative remedies before filing suit, finding that the EEOC’s own procedural regulations basically allow “notice” filing, and that the U.S. Court of Appeals for the 10th Circuit had adopted a policy of “utmost liberality” in construing EEOC charges for this purpose. Judge Cauthron concluded that the letter Dr. Tudor sent to the EEOC was sufficiently detailed to meet the exhaustion requirement, putting the defendant on notice that she was asserted a hostile work environment and discrimination claim.
The court also rejected the University’s argument that Dr. Tudor’s claim fell short on the theory that she is not a member of a “protected group” under Title VII, which does not specifically mention gender identity. The judge noted 10th Circuit precedent stating that “like all other employees, [Title VII] protection extends to transsexual employees only if they are discriminated against because they are male or because they are female.”
“Here,” wrote the judge, “it is clear that Defendants’ actions as alleged by Dr. Tudor occurred because she was female, yet Defendants regarded her as male. Thus, the actions Dr. Tudor alleges Defendants took against her were based upon their dislike of her presented gender.” This means that the first element of a Title VII discrimination claim, that the complainant had been discriminated against due to a characteristic listed in the statute, had been adequately pleaded in the complaint.
As to Dr. Tudor’s factual allegations, the court said that the defendant’s reading of her Complaint was unduly narrow. “When taken as a whole, it is clear that the factual allegations set forth by Dr. Tudor demonstrate that she was subjected to unwelcome harassment based on the protected characteristic and that the harassment by Defendants’ employees was sufficiently severe or pervasive to alter a term, condition, or privilege of her employment and thereby create an abusive work environment.” Among her allegations is discrimination regarding insurance coverage for gender transition expenses, which is not explicitly mentioned in the court’s opinion but was included in the factual allegations presented to the court. She also complained about denial of her tenure application.
Dr. Tuder also alleged discrimination concerning restroom access, which is a recurring feature of transgender employment discrimination claims, and recounted being told by a Human Resources Administrator that a management official of the University had responded to news of Dr. Tudor’s gender transition by urging her discharge, stating that transsexuality offended his religious beliefs. The notion that the religious beliefs of a public university administrator should play any role in personnel decisions raises serious 1st Amendment Establishment Clause concerns.
The court also rejected the University’s argument that the lawsuit was barred under the doctrine of laches (undue delay in filing suit), finding that Dr. Tudor had begun the administrative process to redress her complaint promptly and that any delay in filing the lawsuit was attributable to the EEOC’s administrative process, which should not be held against her claim.
This lawsuit is one of several filed by the Justice Department in various different federal district courts around the country on behalf of transgender complainants seeking to vindicate sex discrimination claims under Title VII. Another such complaint was recently filed by the government against a Minnesota-based printing and financial services company, Deluxe Financial Services, in mid-June. That case, based on a complaint filed with the EEOC by Britney Austin, a transgender woman, also focuses on restroom access, as well as name-calling by co-workers and refusals to use the correct pronoun in referring to the complainant. The government’s strategy is to establish Judicial precedents in many different courts holding that discrimination against transgender individuals because of their gender identity or expression violates the sex discrimination ban in Title VII, before a case presenting the issue finally percolates up to the level of the Supreme Court.