Seyfarth Synopsis: In the first case following the Department of Justice’s pronouncement that Title VII does not prohibit discrimination against transgender persons on the basis of gender identity, a court in the Western District of Oklahoma held that Title VII protects transgender individuals from discrimination. Tudor v. Se. Okla. State Univ., No. civ-15-324-C. (W.D. Okla. Oct. 26, 2017).

With the recent October 5, 2017 memorandum from the Department of Justice stating that Title VII does not prohibit discrimination against transgender persons, the legal landscape regarding Title VII’s protection of transgender individuals is very much in flux. The DOJ’s interpretation is a reversal of the DOJ’s interpretation under the Obama administration and also conflicts with the current interpretation of the EEOC, both of which interpret Title VII to prohibit discrimination on the basis of gender identity. U.S. Circuit courts are also split on the issue, meaning this issue is likely primed for resolution by the Supreme Court in the not too distant future.

The latest decision addressing this issue comes from Tudor v. Southeastern Oklahoma State University, a case from the Western District of Oklahoma in which Tudor, a transgender former professor at Southeastern Oklahoma State University, alleged among other things that she was harassed and discriminated against on the basis of her gender identity after she was denied tenure following her transition from male to female. The court in Tudor denied the university’s motion for summary judgment, finding that there were triable issues of fact with respect to each of Tudor’s claims. This decision is important because it shows that, despite the DOJ’s memorandum, courts are still willing to extend Title VII protections to transgender persons. It also provides helpful guidance to employers as they ponder how their own internal policies and procedures affect transgender employees.

Importantly, the court in Tudor rejected the University’s argument that Tudor was not entitled to protection under Title VII because “transgender” is not a protected class. The court, relying on its prior ruling on the issue, reiterated that Title VII’s prohibition of gender discrimination extended to transgender individuals to the extent they were discriminated against based on “gender non-conformity.” Specifically, Tudor had alleged that Defendant’s actions towards her occurred because she was female, yet Defendants regarded her as male.

The Court also denied the University’s motion for summary judgment on Tudor’s hostile work environment claim, finding that there was a triable issue of fact. In particular, the court highlighted Tudor’s evidence that for four years the University placed restrictions on what restroom she could use, how she could dress, what makeup she could wear, and that it used the wrong pronouns when referencing her. The Court found that these facts, if true, could be sufficient to establish a hostile work environment claim.

The Court also rejected the University’s Faragher/Ellerth defense, which can provide a complete defense to an employer that has non-discrimination and non-harassment policies in place but where an employee fails to take advantage of those procedures. Here, the court explained that the defense would not apply because the University’s sexual harassment and sex discrimination policies did not contain specific language regarding protections for transgender employees.

Even though the law in this area remains uncertain, there is much for employers to glean from the Tudor case. First, it is clear that the DOJ’s recent memorandum has not resolved the question of whether Title VII protects transgender employers on the basis of gender identity. Therefore, employers should be vigilant in establishing and maintaining non-discrimination and anti-harassment policies that extend protections to individuals on the basis of gender identity. This will help ensure that employers stay compliant with federal (and applicable state and local) laws, and it also preserves a potential Faragher/Ellerth defense to a hostile work environment claim. Employers should also be mindful of the unique conduct that may be considered harassing in nature to transgender employees. For example, Tudor demonstrates that denying employees access to their bathroom of choice, enacting strict gender normative dress codes, and refusing to use preferred pronouns may all contribute to a hostile work environment. Thus, employers should update their anti-harassment policies and trainings to include examples that address some of the unique scenarios affecting transgender employees.

As always, we invite employers to reach out to their Seyfarth contact for solutions and recommendations regarding anti-harassment and EEO policies and addressing compliance with LGBT issues in the law.