Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
Often—and without much thinking—when an employer faces a claim of sexual harassment, the knee-jerk response is to discipline or terminate the man accused. It is the easiest way to go, especially if the alleged harasser is a mid- or lower-level employee, is not a stellar performer, and involved in a largely he said/she said situation. And terminating the alleged harasser may have the salutary effects of cutting off liability under federal law and limiting damages under New York State and New York City law by showing that the employer took appropriate steps to ensure that the harassment would not recur. At least in New York, employees, including supervisors and managers, generally have no employment contract protections, and, consequently, their employment status is at-will. Finally, even weak sexual harassment claims can be as expensive to defend as strong ones, with no guarantee as to result, while at-will employees rarely challenge their terminations.
A recent decision from the U.S. Court of Appeals for the Second Circuit has called this calculus, and what some might consider an imbalance, into question. In Menaker v. Hofstra University, 935 F.3d 20 (2d Cir. 2019), the court lays out warnings that employers, faced with both an onslaught of #MeToo claims and the efforts of federal, state and local legislators to make harassment claims easier to prove and harder to settle, need to consider seriously.1
The plaintiff in Menaker was the women’s and men’s university tennis coach. One of his female student-athletes alleged that he sexually harassed her by commenting on her menstrual cycle, making sexual advances, and posting inappropriate comments on her social media account. She alleged that she was not the only victim, and that he asked his other players to dress nicely and shave their legs. She also alleged that he retaliated against her when she rebuffed him by threatening her scholarship and her position on the tennis team.
The tennis coach denied all of these allegations. He also argued the sexual harassment claims did not come until after he declined to honor a promise the student claimed his predecessor made to increase the student’s athletic scholarship, and after he received a call from the student’s father, who yelled at him that if he did not increase his daughter’s scholarship, trouble would “come back to him.” The tennis coach pointed to what he described an “atmosphere of harsh criticism of colleges and universities generally” and his university in particular, because it had not taken claims of sexual harassment seriously enough.2
The university’s procedures dictated that the investigation include witness interviews and the opportunity for an accused employee to submit a “written response.” The school’s procedure also required the investigator to create a “written determination of reasonable cause.” The university informed the tennis coach that it would conduct an investigation pursuant to its procedures and share the report with him. Two months after the allegations were made, the school terminated him for unprofessional conduct, without interviewing the witnesses he had identified, and without giving him a copy of any investigatory report as required by the school’s policy.
The tennis coach sued, alleging that his gender (male) was “a motivating factor” for his termination.3 The district court granted the university’s motion to dismiss the case under Federal Rule of Civil Procedure 12(b)(6) for failure to state a plausible claim. In rejecting the plaintiff’s claims that the university failed to follow its own procedures, the court addressed the Second Circuit’s Title IX decision in Doe v. Columbia University, 831 F.3d 46 (2d Cir. 2016).
In Doe, a male student alleged that the university’s decision to suspend him for sexual assault from the university was motivated, in part, by improper consideration of his sex in violation of Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681 et seq. (Title IX).4 The district court sought to distinguish Doe by pointing out that the plaintiff in that case was a student accused of student-on-student sexual assault suing under Title IX, whereas the tennis coach was an at-will employee accused of sexual harassment in his workplace suing under Title VII.5 The court also pointed out that, unlike the plaintiff in Doe, the tennis coach did not allege that social pressure to punish men accused of sexual harassment had reached a “crescendo” at the university.
Second Circuit Decision
The tennis coach appealed the district court’s dismissal. The Second Circuit reversed, opining that the lower court had placed unwarranted limitations on the application of Doe:
To summarize: we decline to adopt each of the District Court’s proposed limitations on Doe v. Columbia. The logic of that precedent applies to both students and employees, to accusations of sexual harassment as well as sexual assault, and it does not rely on a particular quantum of criticism at a specific university. Rather, Doe v. Columbia stands for the general principle that where a university (1) takes an adverse action against a student or employee, (2) in response to allegations of sexual misconduct, (3) following a clearly irregular investigative or adjudicative process, (4) amid criticism for reacting inadequately to allegations of sexual misconduct by members of one sex, these circumstances provide the requisite support for a prima facie case of sex discrimination.6
Applying the facts with regard to these four elements from Doe, the Second Circuit found that the tennis coach had pled facts sufficient to state a plausible prima facie claim of gender bias. In the court’s words: “When [employers] distort and deviate from [their] policies, fearfully deferring to invidious stereotypes and crediting malicious accusations, they may violate the law.”
Lesson number one from Menaker: Beware of an “irregular” investigative process
In Menaker, the Second Circuit identifies the procedural “irregularities” that contributed to the accused’s ability to state a prima facie case of gender discrimination:
- The employer failed to interview relevant witnesses whom the accused brought to his employer’s attention.
- A supervisor told the accused that he believed the complaint was a “ploy.”
- A supervisor was aware of evidence that discredited the complaining student (i.e., previous attempts to manipulate the athletic department with regard to her scholarship).
- The employer promised the accused that he would receive the investigation report but he never did.
- The employer did not follow its written investigation procedure by failing to interview certain witnesses referred to by the accused and failing to give the accused an opportunity to submit a written response to the complaint against him.
- The employer characterized the student’s complaint as something other than a sexual harassment complaint to avoid stringent internal procedural requirements applicable to complaints of sexual misconduct in particular.
The Second Circuit makes clear that “[p]rocedural protections safeguard the rights of the accused during the investigative and adjudicative process,” and that the courts expect employers to follow their own internal investigatory procedures.7 Any argument to the contrary, according to the Second Circuit, is reminiscent of Lewis Carroll’s Queen of Hearts: “Sentence first—verdict afterwards.”8
While it is commonly understood that an investigation may be required when a harassment complaint is filed, employers need to take note that the obligation extends to the quality of that investigation and the atmosphere in and around the investigation as well. Policies need to be in writing, they need to be followed, and they should include only what the employer actually intends to do. And, of course, investigators need to be well-trained.
Lesson number two from Menaker: Beware of social pressure to react too strongly to allegations of male sexual misconduct
It is hard to imagine what steps a university, or any employer, should take to address the Second Circuit’s apparent concern that a fear of “criticism for reacting inadequately to allegations of sexual misconduct” is part of the mix in assessing whether an employee accused of sexual harassment can state a prima facie case of gender discrimination.9 Large numbers of public and private employers are plenty fearful of such criticism from their employees and those they serve, and rightly so.
It is true that the social pressure identified by the Second Circuit that satisfied the court’s fourth element is specific to higher education. The appellate court cited to the U.S. Department of Education’s 2011 Dear Colleague Letter and the attention from the national press on universities that were identified as “under investigation” for mishandling campus sexual assault claims. That said, one can easily see #MeToo as satisfying the fourth element identified by the circuit court (i.e., an irregular investigation “amid criticism for reacting inadequately to allegations of sexual misconduct by members of one sex”).10
Lesson number three from Menaker: Navigate sexual harassment complaints with Menaker in mind
Menaker is a reminder of the beauty of the American judicial system. Many years ago now, lawyers for employers began to advise their clients to give no, or “neutral,” references to avoid defamation claims. This worked to help avoid such claims, of course, but in reaction, the law in many states evolved and came to recognize a cause of action for a negligent reference to better balance the scales.11 To a degree, Menaker does the same thing, by seeking to better balance the rights of the accuser and the accused. Employers need to take note. The immediate termination or immediate public condemnation of an employee in response to an allegation of sexual harassment may be warranted, but the process and the climate will surely be scrutinized if a lawsuit is brought by the accused.
1 Sexual harassment claims are on the rise in response to the #MeToo movement. The EEOC changed its litigation strategy in 2018, increasing the number of sexual harassment lawsuits it filed against employers by 50%. States and cities also responded to the movement by enacting new legislation. For example, in 2019 New York State changed the legal standard for establishing a claim from harassing conduct that is “severe and pervasive” to harassing conduct that is more than a “petty slight and trivial inconvenience.”
2 The tennis coach’s “primary” argument was that all those involved in the decision to terminate his employment were women, which contributed to an inference that gender bias was a motivating factor. The district court rightly gave this argument short shrift.
3 Walsh v. New York City Housing Authority, 828 F.3d 70, 75 (2d Cir. 2016) (“Indeed, courts must determine whether sex was a motivating factor, i.e., whether an adverse employment action was based, even ‘in part,’ on sex discrimination.”)
4 Title IX and Title VII both prohibit discrimination on the basis of sex. Littler analyzed changes in Title IX litigation here and highlighted that starting in 2015 a majority of Title IX lawsuits (60%) were being filed by those accused of sexual misconduct rather than those complaining that they had been subjected to sexual misconduct. That publication, too, focuses on one lesson – the need for an employer to have and use a robust investigation procedure.
5 Menaker v. Hofstra University, 2018 WL 4636818, at *4 (E.D.N.Y. 2018).
6 Menaker v. Hofstra Univ., 935 F.3d at *33 (2d Cir. 2019)(emphasis added). The bulk of the Second Circuit decision to vacate and remand the district court’s decision is dedicated to applying the holding of Doe to Title VII. However, the Second Circuit also states that the district court should reconsider the tennis coach’s complaint within the cat’s paw theory. The Second Circuit suggests that the complaining student was arguably the “agent” of the university and that her discriminatory intent in alleging a sexual harassment complaint against the tennis coach because he is male was adopted by the university. Because her complaint was about sexual misconduct, it suggests that the tennis coach’s gender played a de facto role in her allegations. Students are not normally considered “agents” on a cat’s paw theory, but “in the Title VII context . . . the conduct of certain non-employees may be imputed to the employer where (1) the employer exercises a “high degree of control over the behavior” of the non-employee, and (2) the employer’s “own negligence” permits or facilitates that non-employee’s discrimination.” Id. at *39 citing Summa v. Hofstra Univ., 708 F.3d 115, 124 (2d Cir. 2013).
7 In dicta, the Second Circuit also suggests that not following an internal policy may invite a breach of contract claim. Id., fn 45.
8 Although Menaker signals a surprising step towards protecting those accused of sexual harassment, the decision is ultimately consistent with the Second Circuit’s reputation as an employee-friendly circuit. The only language that favors the employer’s right to fire and hire at-will appears in footnote no. 50, in which the court states: “[We] emphasize that our standard requires clear irregularities to raise an inference of bias. Variations among employers, even among universities, are expected, and minimal irregularities (absent other indicia of bias) do not suffice to suggest discrimination.”
9 Of course, loose lips sink ships. By example, a statement from a university administrator that the school intends to aggressively root out faculty members who come near, let alone cross, the line between appropriate and inappropriate behavior, and that this intention is a product of a concern that the university is perceived as insufficiently aggressive in its anti-harassment efforts, would certainly be admissible as to the Second Circuit’s fourth element.
10 The Second Circuit rejected the district court’s holding that press coverage about sexual assault in general is not inherently biased towards males: “Press coverage of sexual assault at a university does not automatically give rise to an inference that a male who is terminated because of allegations of inappropriate or unprofessional conduct is the victim of gender discrimination; especially absent any other facts plausibly alleging discriminatory animus. Here, there are no instances of ‘degrading terms’ about Plaintiff as a man, invidious comments about other men, or the more favorable treatment of women.” Menaker 2018 WL 4636818, at *5 (E.D.N.Y. 2018)(citing Bivens v. Inst. for Cmty. Living, Inc., 2015 WL 1782290, at *8 (S.D.N.Y. Apr. 17, 2015) and Patane v. Clark, 508 F.3d 106, 112 (2d Cir. 2007) (internal quotation marks, ellipses, and citations omitted).
11 The negligent reference cause of action would obligate, by extreme example, Preschool A to say more than name-rank-and-serial-number to someone doing a reference check for Preschool B, if the former employee in question was terminated for child abuse.