Hunton Employment & Labor Perspectives

The #MeToo movement has placed sexual harassment on the front pages of newspapers, has galvanized some states to reconsider their own sexual harassment laws, and has encouraged employers to take a closer look at their policies and procedures.

With such heightened awareness of sexual harassment, employers may feel an inclination to resolve doubts in favor of the accuser.  A recent Second Circuit decision, however, illustrates a counterweight to this outlook.

In Menaker v. Hofstra University, the Second Circuit held that the target of a sexual harassment investigation may proceed with his own sex discrimination lawsuit against the university, under the theory that the investigation into his alleged misconduct was permeated with bias against men.  This bias, he alleges, comes from the pressure universities may face to “favor the accusing female over the accused male,” in order to “demonstrate [their] commitment to protecting female students.”

The Allegations from Menaker’s Amended Complaint

 In its opinion, the Second Circuit recited the following background about the case and the investigation, accepting the allegations of Menaker’s Amended Complaint as true since the district court had dismissed the case on a motion to dismiss.

In January 2016, Hofstra University hired Jeffrey Menaker as the head coach of the Men’s and Women’s Tennis teams.  A few months after his hire, Michal Kaplan, a then-Freshman on the Women’s team, told Menaker that the previous head coach promised Kaplan that he would increase her 45-percent scholarship to a full scholarship before her Sophomore year, and Kaplan sought confirmation that Menaker would honor this commitment.  Menaker, however, could not find record of such a promise.  Accordingly, Menaker told Kaplan that he could not increase her scholarship for her Sophomore year, but expressed a willingness to do so for her Junior and Senior years.

Two months later, in July 2016, Hofstra received a Title IX complaint from attorneys representing Kaplan, alleging that Menaker subjected Kaplan to unwarranted sexual harassment and quid pro quo threats.  Specifically, the complaint alleged that Menaker would comment on Kaplan’s menstrual cycle, would tell female players to dress nice and shave their legs, commented on Kaplan’s Facebook photographs, and sent Kaplan private Facebook messages with links to satirical YouTube videos concerning dating and relationships.

After receiving Kaplan’s complaint, Hofstra’s Deputy General Counsel, along with the Director of Athletics, summoned Menaker into a meeting, without advance notice or explanation, and questioned him about the manner in which he communicated with members of the Women’s Tennis team.  They then showed him a copy of the complaint and asked him to collect copies of all communications he had with Kaplan.  Menaker denied all of the allegations.

Over the next two months, Menaker provided Hofstra with copies of his communications with Kaplan and he suggested names of particular student-athletes he believed could provide information that would be useful to the investigation. Menaker alleges that the Director of Athletics confirmed that some of the allegations were untrue and stated to Menaker that the complaint was likely a “ploy by Kaplan’s parents, and that complaints such as Kaplan’s were not uncommon.”  Menaker also alleges that he was told he would be provided a copy of the final investigative report.

On September 7, 2016, Hofstra fired Menaker, citing “unprofessional conduct.”  The Vice President of Human Resources stated that although no single allegation was independently sufficient for termination, the university made the decision to fire him based on the “totality” of the allegations.

Menaker subsequently sued the university, claiming that his sex played a role in the termination because the university was motivated to demonstrate its commitment to protect female student-athletes from alleged male harassers.

Second Circuit’s Opinion

Menaker’s complaint was dismissed at the district court level for failure to state a claim.  He appealed to the Second Circuit.

The Second Circuit disagreed with the district court’s analysis and held that Menaker stated a viable theory of sex discrimination.  Central to this opinion was an evaluation of how Hofstra allegedly conducted the investigation into Kaplan’s complaint.  The Court ruled that Hofstra’s deviation from its own investigative procedure supported Menaker’s theory that the university acted under pressure from a growing societal sentiment that colleges and universities need to take a stand against male-on-female sexual assault and harassment.

At the time of Kaplan’s complaint, Hofstra maintained a formal investigative process, outlined in its Harassment Policy.  This procedure required the investigator to interview potential witnesses, allow the accused the right to submit a written response, and required the investigator to produce a written determination of reasonable cause.

Menaker alleged that Hofstra did not interview any of the witnesses he identified, that he was not given an opportunity to submit a written response, and that he was never provided a written investigative report outlining Hofstra’s conclusions.  Such procedural irregularities, he argued, raised an inference that Hofstra was motivated, at least in part, by bias favoring the female accuser over the male accused.

Hofstra countered such allegations by positing that Menaker was not entitled to such procedural protections because he was ultimately fired for “unprofessional conduct,” not harassment.  But the Second Circuit quickly disposed of that argument, explaining, “an employer cannot justify its abandonment of procedural protections by recharacterizing specific accusations in more generic terms.”

The Second Circuit also endorsed Menaker’s theory of “Cat’s Paw” vicarious liability.  “Cat’s Paw” liability makes employers liable where non-decision-makers “manipulate an employer into acting as a mere conduit” for the non-decision-maker’s discriminatory intent.

Here, the Second Circuit reasoned, it is plausible that Hofstra, even if it was motivated solely by financial concerns or other legitimate reasons, served as a mere conduit for Kaplan’s alleged discriminatory intent against Menaker’s sex.  Hofstra argued such a theory was inapplicable because Kaplan was a student, not an employee.  But the Second Circuit disagreed.  Title VII allows courts to impute liability to employers for the conduct of non-employees where the employer exercises a high degree of control over the behavior of the non-employee and the employer’s own negligence permits or facilitates that non-employee’s discrimination.

In this case, Hofstra exercised significant control over Kaplan because she was a student-athlete; Hofstra thus controlled her academic enrollment and athletic scholarship.  And, the Second Circuit held, it was plausible that Hofstra’s deviance from its investigative process could support a finding that “its own negligence” permitted Kaplan’s alleged discriminatory design to effectuate Menaker’s termination.

Takeaways

 The key takeaway from Menaker is to ensure managers, human resource personnel, and in-house counsel are well versed in the company’s written policies and procedures concerning sexual harassment investigations.  Most importantly, employers should conduct such investigations in strict conformity with the written procedures.  Deviations from procedure can support an inference of bias in either direction (to the accused or the accuser).

Hofstra may ultimately prevail after a factual record is developed.  But the Second Circuit’s acknowledgement that men may bring their own claim of sex discrimination based, in part, on a belief that the employer was influenced by societal pressures to favor female accusers is an interesting development in Title VII caselaw and a reminder to employers to avoid deviations from written policies and procedures.