Reinstatement is Back on the Menu

By: Jeremy K. Schrag     

Nearly every single EEOC Charge of Discrimination filed by a former employee is resolved with the employment relationship permanently severed. In nearly all cases, after pursing litigation, both parties are happy to go their separate ways. And, in employment litigation, rarely will a court ever order an employer to accept an employee back into the workplace. The reasoning is simple – after years of acrimonious litigation, it is unlikely the plaintiff and the employer could ever work together again. But the Tenth Circuit does not care about your workplace harmony or employee culture.

In Tudor v. Se. Okla. State Univ., a transgender professor sued Oklahoma State University claiming that she was unlawfully denied tenure. She won, and then asked for reinstatement. The district court denied her request, noting six years of acrimonious litigation likely precluded the parties from working well together in the future. The Tenth Circuit disagreed and ordered the plaintiff be reinstated at the university. And it wasn’t even close.

The Tenth Circuit said the district court’s decision denying reinstatement was “manifestly unreasonable” and ordered her to be reinstated with tenure. The Tenth Circuit made it abundantly clear that “reinstatement is the preferred remedy and should be ordered whenever it is appropriate” (emphasis added) and stated that courts must consider any request for reinstatement with the “strong preference for reinstatement.” To avoid reinstatement, the employer must show “extreme hostility” to the point it is “impossible” for the parties to ever work together again – a heavy burden.

For experienced employment practitioners, the opinion is quite a divergence from normal practice and changes the definition of worst-case scenario. Bad verdicts are no longer the only concern. Employers now face the risk of paying a bad verdict and then welcoming the plaintiff back into the workplace. The opinion is a good reminder to employers that an effective way to control the outcome of an employment dispute is through a negotiated resolution that includes no-rehire and/or no-reinstatement provisions.

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