The Accused Becomes the Accuser: Discrimination Claims Arising Out of Harassment Investigations

In the wake of the #Metoo movement and the strengthening of laws concerning sexual harassment claims, employers have been encouraged to promptly and aggressively investigate claims of harassment or sexual misconduct in the workplace. While failing to take such accusations seriously certainly creates legal risk, a flawed or biased investigation can produce problems of its own down the line—namely, possible discrimination claims.

In a recent case, Menaker v. Hofstra University, 935 F.3d. 20 (2d. Cir. 2019), the U.S. Court of Appeals for the Second Circuit highlighted the possible pitfalls of a rush to judgment. The plaintiff, Jeffrey Menaker, was the former tennis coach of Hofstra University who became the subject of a written complaint by a student who alleged that he had engaged in “unwanted and unwarranted sexual harassment” and “quid pro quo threats [that] were severe, pervasive, hostile and disgusting.” After receiving the letter, university officials summoned Menaker for a face-to-face interview without alerting him to the subject matter in advance. The university then instructed him to provide all of his correspondence with the student in question and informed him that it would be conducting an investigation. Menaker, who denied all of the allegations, provided the documents and gave the administration the names of possible witnesses who he claimed could provide relevant information. Two months later, he was summarily fired on the grounds that even though there was no specific finding of harassment, his “unprofessional conduct” and “the totality of circumstances” warranted his termination.

In turn, Menaker sued the university under Title VII, as well as state and local law, claiming that he had been terminated because of his sex. In reversing the District Court’s dismissal of the complaint, the Second Circuit held that Menaker’s allegations against Hofstra raised a sufficient inference of discriminatory intent under Title VII. Relying on its prior decision in Doe v. Columbia University, 831 F.3d 46 (2d Cir. 2016), the Court held that a complaint sets forth a prima facie case of sex discrimination 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” (935 F.3d at 33). The Court pointed to Hofstra’s deviation from its own procedures, in particular its failure to interview possible exculpatory witnesses, as well as its failure to provide a written report. The fact that the university was under express instructions from the Department of Education to prioritize the investigation and resolution of sexual harassment complaints, combined with the allegation that at least one university administrator was on notice that the student’s claims were likely false, also contributed to the finding that discriminatory intent had been adequately alleged.

Although both Doe and Menaker involved universities, there is no reason that their holdings should not apply to other employers. The takeaway is that if an employer has procedures for investigation of sexual harassment complaints (and it should), the procedures should be applied uniformly and fairly, even in the face of public pressure. As the Second Circuit has held, once an employer has promised procedural protections to employees, the disregard or abuse of those procedures may raise an inference of bias.

We note that discrimination claims are not the only suits brought by those accused of harassment—defamation suits have also been on the rise. My colleague Ethan Krasnoo explored this subject in two articles appearing on the RPJ website, “Exploring the Role of Defamation in the #MeToo Narrative” and “Defamation Continues to Take Center Stage in the #MeToo Narrative.”

This article is intended only as a general discussion of these issues. It is not considered to be legal advice or relied upon. For additional information or advice on specific situations, please feel free to contact Alice K. Jump, who has extensive experience representing clients in various employment matters, including harassment and discrimination claims.