In the latest development in a long-running case, a federal appeals court orders Southeastern Oklahoma State University to rehire and award tenure to a professor who says she was denied tenure and fired for transitioning to a woman.
A federal appeals court said this week that Southeastern Oklahoma State University must reinstate, with tenure, a former professor of English who says she was denied tenure for being transgender.
A jury previously awarded the professor, Rachel Tudor, more than $1 million in damages. But the court capped that amount at $300,000, plus front-pay wages of some $60,000. The lower court also sided with the university in saying that Tudor should not be reinstated due to hostility between the parties.
Tudor disagreed about reinstatement, arguing in the U.S. Court of Appeals for the 10th Circuit that she wanted to return to Southeastern Oklahoma State. Her lawyers said that litigation-related hostility is not a valid reason to refuse to rehire someone.
The university, meanwhile, appealed the jury’s verdict in favor of Tudor.
In the end, the appeals court mostly agreed with Tudor and her lawyers and with the jury’s determination that Tudor was denied tenure due to sex discrimination.
The decision is unusual in that courts generally shy away from intervening in tenure decisions. And in those rare instances where courts are favorable to professors denied tenure, the professors involved don’t necessarily want to return to the institutions that spurned them.
“A court’s inquiry into whether reinstatement is appropriate after a jury verdict of discrimination and retaliation in plaintiff’s favor therefore does not take place on a level playing field,” Judge David M. Ebel wrote in an opinion on behalf of the three-judge panel. “Instead, courts must start with the strong preference for reinstatement, and then ask if the defendant has overcome this presumption by establishing the existence of extreme hostility between the parties.”
Such an “extreme hostility test” doesn’t require “complete harmony among the plaintiff, the employer and other employees,” Ebel said. “There are plenty of workarounds and solutions making reinstatement possible in cases where some animosity exists, such as a remote office, a new supervisor, or a clear set of workplace guidelines.”
Ebel acknowledged that the current chair of English at Southeastern Oklahoma State said he didn’t think it would be a “good thing” for Tudor to return to the English department and that his colleagues were “split at best” on the issue. But this doesn’t equal extreme hostility, Ebel said, and in higher education, in particular, “teaching and scholarship are inherently fairly insulated from the adverse sentiments of colleagues.” Tenured positions are especially “insulated,” he also said.
Most of the “primary antagonists” in the case have since left the university, and a “large institution” such as Southeastern Oklahoma State “should have sufficient resources to eliminate or otherwise ameliorate any hostility on its side toward the plaintiff,” Ebel wrote. He also noted that the U.S. Justice Department settled with the university regarding a related complaint and that, as a result, trainings and other measures to reduce discrimination such as what Tudor faced were already in place.
The appellate court also ordered the lower court to recalculate Tudor’s front-pay wages.
Through the office of her lawyer, Jillian T. Weiss, Tudor, who is a member of the Chickasaw Nation, said in a statement that she is “looking forward to being the first tenured Native American professor in her department in the 100-plus-year history of the Native-American-serving institution that is Southeastern Oklahoma State.”
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