Friday, August 16, 2019

How to win a Title VII case involving false sexual harassment allegations

Does an employee have any rights when he is unfairly accused of sexual harassment? Few cases address this issue. In this case, the Second Circuit provides some guidance, finding that the plaintiff, a former Hofstra University employee, states a claim for sex discrimination in the wake of a student's harassment claim.

The case is Menaker v. Hofstra University, issued on August 15. Plaintiff coached the womens' varsity tennis team. A student, Kaplan, asked plaintiff about her athletic scholarship, claiming that plaintiff's predecessor had promised to increase her scholarship. Plaintiff said he knew nothing about this, ultimately determining there was no record of such promise and that her scholarship would not be increased that year. This led to an irate and threatening phone call to plaintiff from Kaplan's father. After Kaplan filed a Title IX sexual harassment claim against plaintiff, Hofstra fired plaintiff even after he insisted the allegations were provably false and the university summoned him to important meetings on the charges without telling him in advance the purpose of the meetings. Plaintiff also alleges the university did not follow its investigative procedures in firing him, i.e., it did not interview his witnesses.

For Rule 12 purposes, Plaintiff has a case under Title VII for sex discrimination. This ruling provides a good summary of the legal standards guiding motions to dismiss under Title VII, reiterating the pro-plaintiff language from Littlejohn v. City of New York, 795 F.3d 297 (2d Cir. 2015). The Court of Appeals also extends the reasoning in Doe v. Columbia University, 831 F.3d 46 (2d Cir. 2016), which said students may sue their colleges under Title IX for sex discrimination if they are disciplined because of their gender. Doe now applies to Title VII cases against universities. Here is the standard:

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.
Plaintiff has a claim because he has plausibly alleged that Hofstra faced some pressure to react more forcibly to allegations of male sexual misconduct in light of an Obama administration directive to that effect and a Department of Education investigation into Hofstra's possible mishandling of sexual misconduct claims, as well as internal criticism within the institution for the same. In addition, plaintiff alleges that Hofstra committed procedural irregularities in handling the allegations against him, further evidence of an intent to discriminate, as the defendant did not interview his witnesses and he was terminated even though, he claims, the university knew that at least one of the allegations against him was false and believed the complaint was a "ploy" by the student to retaliate over the scholarship denial. Plaintiff also alleges the university disregarded other procedures set forth in its policy for investigating these allegations.

We also got some "cat's paw" discussion. The Court of Appeals wants the district court to think about the cat's paw on remand, which involves an employer making an adverse decision based on a biased agent somewhere along the decisionmaking chain influencing that decision for discriminatory reasons. In that scenario, the relevant intent is that of the discriminatory agent, not the final decsionmaker. The employer is liable if it knew or should have known of that discriminatory intent. The appellate court says there may be a cat's paw issue because Kaplan accused plaintiff of sexual misconduct, which "suggests Menaker's sex played a part in her allegations." In addition, Kaplan's intent may be imputed to Hofstra because "the discriminatory intent of a student‐athlete may also be imputed to a university where that university exercises a 'high degree of control over the behavior' of the student‐athlete and negligently permits her discriminatory conduct or effectuates her discriminatory intent." Hofstra did have that control over Kaplan's academic enrollment and scholarship, and it also controlled the complaint process by which she effected her discriminatory intent. Along with the procedural irregularities, "a district court could plausibly conclude that
Hofstra was negligent or reckless in acting on Kaplan’s allegations."

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