August 20, 2019
Higher Education Alert
Higher Education Alert
Author(s): Steven M. Richard
Second Circuit ruling clarifies its precedent that a minimal inference of gender bias can plausibly support allegations by a student or employee, which challenge adverse actions taken in response to a sexual misconduct complaint.
The Second Circuit has ruled that a tennis coach may proceed with his lawsuit alleging that Hofstra University wrongfully terminated his employment after a student accused him of sexual harassment. The appellate court held that the plaintiff’s allegations met the gender discrimination pleading standard established in Doe v. Columbia University, 831 F.3d 46 (2d Cir. 2016), which reversed the dismissal of a student’s lawsuit disputing his suspension in a disciplinary process. The Second Circuit reiterated its precedent that a “minimal inference of sex bias” satisfies a prima facie showing of gender discrimination to support a lawsuit by either an employee or a student challenging an adverse action taken in response to sexual misconduct accusations. Menaker v. Hofstra University, No. 18-3089 (2d Cir. August 15, 2019).
In January 2016, Jeffrey Menaker began his employment at Hofstra University as the varsity coach of the men’s and women’s varsity tennis teams. In April 2016, a freshman member of the women’s team approached Menaker to discuss her athletic scholarship, alluding to a promise made by the former coach to increase her partial scholarship to a full scholarship at the start of her sophomore year. Menaker found nothing to support the promised scholarship adjustment, which prompted an irate call from the student’s father threatening trouble if Menaker did not honor his predecessor’s promise. In July 2016, Hofstra received the student’s complaint against Menaker, accusing him of “unwanted sexual harassment” through various alleged crude and sexist remarks and “quid pro quo threats” tied to the continuation of her scholarship assistance.
Menaker denied the allegations against him and gave administrators communications that purportedly dispelled the student’s sexual harassment allegations against him. He also provided the names of student-athletes with information that might be useful to the investigation, but these students were not interviewed. One administrator purportedly told Menaker that the Title IX complaint seemed to be a ploy by the accusing student’s parents who were upset about the denial of their daughter’s request for a full scholarship. Ultimately, in September 2016, the university terminated Menaker’s employment.
Menaker sued Hofstra asserting violations of Title VII of the Civil Rights Act of 1964 (“Title VII”) and the New York State Human Rights Law, contending that he was discriminated against in response to the student’s allegedly malicious sexual harassment complaint. The United States District Court for the Eastern District of New York granted Hofstra’s motion to dismiss Menaker’s lawsuit at the pleading stage, concluding that he did not plead a plausible inference of gender discrimination. Menaker appealed the judgment to the Second Circuit.
In Doe v. Columbia University, a male student alleged that his suspension for sexual assault was motivated, in part, by improper consideration of sex in violation of Title IX of the Education Amendment of 1972 (“Title IX”). The plaintiff contended that public pressure impacted how the university addressed student sexual misconduct complaints against males and resulted in procedural irregularities during his disciplinary case. The Second Circuit concluded that the student’s pleading of a “minimal inference of sex bias” was sufficient to allow his Title IX claim to avoid dismissal and proceed further to discovery.
In Menaker, the Second Circuit ruled that the lower court erroneously dismissed the coach’s lawsuit based upon a misreading of Columbia in three respects. First, the lower court wrongly interpreted Columbia to apply only to plaintiffs accused of sexual assault, not including those accused of sexual harassment. Second, it improperly limited Columbia to student plaintiffs, to the exclusion of employee plaintiffs. And third, it assumed that the logic of Columbia’s ruling applied only in circumstances where the public criticism of a university had reached a “crescendo.”
The Second Circuit made clear that Columbia’s logic applies to accusations of sexual assault and sexual harassment. “The intuitive principle that universities’ reactions to accusations of sexual misconduct are often influenced by the sexes of the parties applies with equal force to both sexual assault and sexual harassment.” Of particular significance, Columbia pertains to Title IX student claims and Title VII employee claims because both statutes apply similar principles to identify discriminatory intent. “[T]he very same pressures that may drive a university to discriminate against male students accused of sexual misconduct may drive a university to discriminate against male employees accused of the same.” Finally, public pressure on a university does not have to reach a particular threshold of severity before impacting a decision to take an adverse action against the accused. “On the contrary, when combined with clear procedural irregularities in a university’s response to allegations of sexual misconduct, even minimal evidence of pressure on the university to act based on invidious stereotypes will permit a plausible inference of sex discrimination.”
To summarize, the Second Circuit’s precedent in 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 or adjudicative process, (4) amid criticism of 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.” Here, Menaker sufficiently pled an adverse employment action against him taken in response to sexual harassment allegations and provided contextual allegations to suggest that pressure on the university caused it to react more forcefully to allegations of male sexual misconduct (e.g., the April 2011 Dear Colleague Letter, a Department of Education investigation, and student criticism of the university on campus).
Regarding the question of whether the coach’s firing occurred in an irregular process, the Second Circuit found that he sufficiently alleged irregularities based upon the university’s failure to interview witnesses and an administrator’s purported belief that the student’s complaint arose from her family’s vindictive motive. Further, the coach alleged that he never received a report that he claimed he was promised detailing the investigation. The Second Circuit reiterated its holding in Columbia that alleged procedural deficiencies in a university’s investigation and adjudication of a sexual misconduct complaint can raise a plausible inference that its actions were motivated, at least in part, by sexual bias.
Since its issuance three years ago, Columbia has been analyzed and, at times, scrutinized by courts, particularly regarding the Second Circuit’s lenient “minimal inference of sex bias” pleading threshold. In a lawsuit brought by a male student disciplined for sexual assault, the Sixth Circuit, in Doe v. Miami University, 882 F.3d 579 (6th Cir. 2018), declined to adopt Columbia’s analysis because it “reduces the pleading standard in Title IX claims.” Similarly, in Austin v. University of Oregon, 925 F.3d 1133 (9th Cir. 2019), the Ninth Circuit rejected Columbia’s pleading standard in upholding of the dismissal of a lawsuit by several athletes challenging their expulsions for sexual misconduct. Menaker confirms that the Second Circuit firmly stands by its reasoning in Columbia.
Colleges and universities should consider the Menaker case not only regarding its importance to Title VII employee claims, but also recognizing its impacts upon Title IX student lawsuits. Menaker further draws the broad boundaries of what can support a minimal inference of sex bias in Second Circuit lawsuits. Colleges and universities should expect that both student and employee plaintiffs will cite with vigor to the Second Circuit’s analysis in Columbia as reinforced by Menaker in lawsuits challenging adverse job or disciplinary actions taken in response to complaints of sexual assault or harassment. The adoption of the Second Circuit’s precedent elsewhere remains unclear as cases evolve nationally, especially given the concerns and disagreements with the pleading standard already expressed by some federal circuits, and we will continue to monitor these developments closely.
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