Only “Extreme Hostility” Defeats the “Strong Preference for Reinstatement” as a Remedy


Although most employers would prefer not to reinstate an employee who has engaged in successful litigation against them, they may be required to do so in circumstances short of “extreme hostility,” explained the U.S. Court of Appeals for the Tenth Circuit.

In Tudor v. Southeastern Oklahoma State Univ., a professor won a jury trial on her claims of discrimination and retaliation. The trial court denied her reinstatement as “simply not feasible in this case.” However, the Tenth Circuit disagreed, noting that reinstatement fulfills Title VII’s purpose of making victims whole, and thus there is a “strong preference” for this remedy.

The Tenth Circuit acknowledged that “some hostility will inevitably be present in every case,” but that reinstatement will be denied only “when the employer has exhibited such extreme hostility that, as a practical matter, a productive and amicable working relationship would be impossible.” (Emphasis by the court). The Tenth Circuit clarified that this test does not require “complete harmony” in the workplace. It also identified possible workarounds to animosity, “such as a remote office, a new supervisor, or a clear set of workplace guidelines.”

As the Tenth Circuit summarized, “Courts must look beyond ill feeling and instead address simply whether a productive working relationship would still be possible, and they must do so through the lens of a strong preference for reinstatement.”