United States: Has #MeToo Created A New Claim Of Male-Bias Discrimination?

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

Background

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. 

Footnotes

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.

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.  

Menaker v. Hofstra University, 2018 WL 4636818, at *4 (E.D.N.Y. 2018).

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.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions