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.

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.

I Wish They All Could Be California Non-Binary: Governor Brown Law Approving New Gender StatusMale and female are no longer the only gender identifiers available, at least in two states. California’s Gov. Jerry Brown has signed into law the Gender Recognition Act which (1) allows individuals to identify as non-binary and (2) makes it easier for individuals to change their gender identifier in certain state records. In the past, for a person to have their gender changed on a birth certificate or driver’s license, they had to present proof that they had undergone treatment to change their gender (with male and female as the only options) and have a court hearing. The new law allows someone to change their gender simply by filing an affidavit under penalty of perjury that the request is to conform the person’s legal gender to the person’s self-identified gender identity. Under the new law, a person can attest to a gender identity of female, male or non-binary.

The law also specifically addresses California drivers’ licenses. In 2019, an applicant for a new license or a renewal can choose a gender category of female, male, or non-binary.

California joins Oregon as the only two states so far that have adopted this third category of gender.

How Will This Affect an Employer?

While neither the California nor Oregon laws appear to require employers to change any of their forms, the establishment of the new non-binary gender category may make the use of a universal form difficult if you have employees in those states.