University Learns a New Lesson: Transgender Discrimination Landmark Verdict in OklahomaIn a landmark case, an eight-person jury (six women and two men) awarded a transgender professor, Rachel Tudor, more than $1.1 million in her claim that her former employer discriminated against her on the basis of her sex.

The Facts

Tudor was hired by Southeastern Oklahoma State University (part of the Regional University System of Oklahoma) in 2004 as a tenure-track assistant professor in the English Department. In 2007, she began transitioning from male to female, becoming the university’s first openly transgender professor.

Tudor notified the university that she would be presenting as a woman for the 2007-2008 school year. According to Tudor, she then received a call from human resources informing her she would not be fired provided she follow certain rules, including that she not use the women’s restroom, wear short skirts, or wear makeup that would be deemed harassing to male colleagues. She testified that another individual told her that she should take safety precautions, because some people were openly hostile to transgender people.

Two years later, in October 2009, Tudor applied for tenure. The university’s tenure committee voted in favor of extending tenure to Tudor; however, university administrators rejected the recommendation, telling Tudor she should withdraw her application for tenure and take more time to strengthen her tenure portfolio. Tudor did not withdraw her application, and the university did not grant her tenure. Later, the university denied her an opportunity to reapply for tenure, and, in 2011, terminated her for failure to attain tenure prior to the end of her seventh year at the university.

The jury hearing the case found that the university and Regional University System of Oklahoma discriminated against Tudor based on her gender when they denied her both tenure and the opportunity to reapply for tenure. The jury also found that the defendants retaliated against Tudor by denying her the opportunity to reapply for tenure.

Takeaways

The case is important to the ever evolving anti-discrimination case law. It is one of the first cases in which a court has determined that transgender status is protected under Title VII. Not surprisingly, not all courts who have considered this issue agree. The Supreme Court has not considered the issue, but it will certainly be confronted with the issue sooner rather than later. It is also the first jury verdict we have heard about regarding a transgender person’s discrimination claims.

Cautious employers will handle concerns regarding transgender status like it is covered under Title VII—assuming that discrimination based on transgender status is sex discrimination. Given this verdict (and a big one at that), we are likely to start seeing more sex discrimination claims from transgender employees.

Unless you have been living in a cave for the last month, you have heard about the sexual misconduct allegations against Hollywood mogul Harvey Weinstein. The story has all of the makings of a Hollywood blockbuster, except this time it’s not a movie. Here’s why it should also raise the curtain for employers outside of Tinseltown.

Why the Harvey Weinstein Scandal Should Scare the Pants Off EmployersRising Tide of Allegations Will Result in Increased Scrutiny

The Weinstein allegations have triggered an avalanche of claims against Hollywood stars, celebrity chefs, executives and politicians unlike anything in recent memory. The EEOC has weighed in with renewed interest in harassment claims, seizing upon an opportunity to publicize the issue. Those who use their workplace positions to make unwelcome sexual advances deserve to be called out for their misconduct. To be clear, this post is not for them. However, the sheer number of allegations regarding misconduct that occurred years ago and were never reported poses a real problem for conscientious employers. What does this mean for employers who face fallout for this kind of misconduct?

First, employers will have to deal with increased administrative interest. Undoubtedly, the EEOC will more carefully scrutinize claims of harassment and increase litigation efforts against companies alleged to harbor harassers, especially in the C-suite. Second, litigation could get tougher. Juries and courts may be more inclined to believe that alleged harassment occurred and to disbelieve denials by an accused executive and by extension his or her employer. In short, we will likely see an increase in claims, so what can employers do?

An Ounce of Prevention

You have heard it before but it bears repeating. While employers can’t stop employees from acting badly, they can take steps to try to prevent bad conduct and to properly address it when brought to their attention.

  • Review your policies. Any employer reading this almost certainly has a policy against harassment or discrimination, but far too often we see employers with cut and paste policies gleaned from another company or pulled off the internet that don’t really align with their workplace. You need clear, well-thought-out policies that your employees understand. Be sure the policy explains what harassment is and encourages people to report it.
  • Identify the right person to receive complaints. A policy merely advising employees to report harassment to their immediate supervisor, who has little or no training in how to identify or address harassment, often proves of limited help. Think about who is best to receive allegations about harassment and to properly address them and draft your policy to match. Clear policies with carefully crafted reporting procedures (perhaps supplemented with a third-party hotline option) can help.
  • Distribute the policy. A policy buried in a handbook, with no stand-alone employee acknowledgment, can be portrayed as mere words on the page with no real meaning. Worse still, employees may claim (sometimes truthfully) that they never received or read it. A policy given to employees and acknowledged in writing is critical.
  • Training, training, and more training. The again obvious, but often overlooked or sporadically implemented, additional step is education and training. For those of you in states that require annual training, make sure you do it and document it. For the rest of the country, have annual training of management in EEOC matters and trends. Add training of HR staff in how to identify, investigate and address allegations. Make sure your supervisors can identify harassment and know what to do when they see it or get a complaint. Educate employees in the company’s reporting procedures and make sure they understand that the company will not tolerate retaliation for a complaint. Finally, implement the training in a manner that avoids the holes created by employee and supervisory turnover.

Again, all of this sounds obvious but it can mean the difference between preventing harassment in your workplace and being found liable for the bad acts of people who you thought knew better.

Alabama Employers Take Note – Birmingham Joins Ranks of Cities with an Anti-Discrimination OrdinanceLast month, the Birmingham City Council passed an ordinance criminalizing discrimination in education, housing, employment, and public accommodations. The ordinance not only prohibits discrimination based on the federally protected categories of race, sex, national origin, and disability, but it also recognizes familial status (i.e., having minor children), sexual orientation, and gender identity as protected categories. Additionally, the ordinance creates a new Human Rights Commission to handle discrimination complaints. Members of the commission will include the police chief, fire chief, ADA compliance director, a city council staff member, city council district appointees, and representatives from other local organizations.

What the Ordinance Provides

An individual can file a discrimination complaint by seeking a warrant or summons from a magistrate in the Birmingham Municipal Court. The magistrate will refer the complaint to the new Human Rights Commission to investigate and attempt to conciliate the complaint. If the commission does not resolve the matter, it then will go to trial in the municipal court. If found guilty, a business may face a $500 maximum fine. Although that remedy is insignificant relative to damages available under the federal anti-discrimination statutes (backpay, reinstatement, potentially uncapped damages), employers should keep in mind that a plaintiff in federal court could point to a prior municipal court ruling against an employer as evidence of discrimination. Weighing that possibility and also considering the near certainty that an employer would spend more than $500 defending a municipal court claim, employers should look to resolve such claims swiftly.

When Does It Take Effect?

Birmingham’s mayor must sign the ordinance for it to take effect, and that has not yet happened. That task apparently was moved to the backburner after Birmingham’s incumbent mayor, William Bell, lost to opponent Randall Woodfin in an October 3 runoff. Both Bell and Woodfin have expressed support for the ordinance, so we can expect that one of them will sign it into law at some point. Woodfin plans to take office on November 28.

Even assuming the mayor signs the ordinance, the Alabama State Legislature could possibly challenge it. The legislature is not in session again until early 2018 and has not hinted at opening a special session. Legislators are perhaps staying quiet on the issue while Birmingham and Huntsville pursue bids for Amazon’s second headquarters, in light of North Carolina’s recent economic backlash over the state legislature striking down Charlotte’s transgender bathroom ordinance.

Lastly, the city council president who spearheaded the ordinance lost his seat in a runoff shortly after its enactment, and it remains to be seen whether the new city council will follow through on getting the mayor’s signature and creating the new Human Rights Commission.

So, not surprisingly, the new ordinance raises more questions than it provides answers — employers should stay tuned for further developments.