A Cautionary Tale: The Importance of a Thorough and Thoughtful Investigation in the #MeToo Era

Over the last two years, my law partners and I have given a number of presentations on the #MeToo movement. Inevitably, there is always a question about where the law stands on the due process rights of the accused. Generally speaking, Title VII does not give employees accused of sexual harassment any per se due process rights. But it does provide a cause of action for sex discrimination. This was precisely the situation recently examined by the Second Circuit Court of Appeals (Connecticut, New York and Vermont) in Menaker v. Hofstra University.

The Case Facts

The facts plead in the complaint in Menaker are summed as follows:

Menaker was the former head of the men’s and women’s varsity tennis teams. One of the women’s varsity team members requested that Menaker increase her scholarship. Shortly after denying the request, Menaker “received an irate phone call from the student’s father” who ultimately threatened Menaker that trouble would “’come back to him’” if his daughter’s scholarship was not increased. Two months later, the student filed a complaint through her attorney with Hofstra University alleging Menaker subjected her to “unwanted and unwarranted sexual harassment” and “quid pro quo threats [that] were severe, pervasive, hostile, and disgusting.”

Hofstra maintained a written harassment policy which provided for investigating and resolving harassment claims through both an informal process based on the mutual agreement of the parties involved and a formal process. The formal process included requirements that Hofstra’s investigator interview potential witnesses, that accused parties have the right to submit a written response, and that Hofstra’s investigator produce a written determination of reasonable cause.

As part of its investigation, Hofstra initially presented the student’s written complaint to Menaker, who denied the allegations. Over the next two months, court documents indicate Menaker cooperated with the investigation, providing Hofstra with copies of communications with the student and suggesting the names of potential witnesses who could provide useful information. Hofstra’s Director of Athletics also reported to both Menaker and the General Counsel that he personally knew at least one of the allegations to be false. The same Director of Athletics also told Menaker that he assumed the complaint to be a ploy by the athlete’s parents, and that such complaints were not uncommon.

Two months after the complaint was first presented to Menaker, he was called into a meeting, without notice, and fired for “unprofessional conduct.”  During the meeting the allegations from the student’s attorney were read aloud and a new allegation, namely that Menaker talked to students about his divorce, was noted. The HR Director who attended the termination meeting told Menaker that while none of the stated allegations was independently sufficient for termination, he was nevertheless being fired due to the “totality” of the allegations. Menaker sued Hofstra for sex discrimination.

The Court’s Ruling

Hofstra moved to dismiss Menaker’s sex discrimination complaint at the district court level arguing, in part, that the complaint failed to allege facts sufficient to support an inference of discriminatory intent based on sex. The district court granted the motion, finding that Menaker had failed to plead facts supporting a plausible inference that his sex played a role in his termination. The Second Circuit reversed and remanded the case.

Citing Title IX precedent, the Second Circuit explained the standard for scrutinizing a Title VII claim in this factual scenario as follows: “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.”

The Second Circuit concluded that Menaker satisfied each of the foregoing elements. But it is the court’s discussion of elements (3) and (4) that deserve further discussion. First, the Court concluded that Menaker plead facts that, when taken as true, reflect a clearly irregular investigative and adjudicative process. Among other things, Hofstra failed to interview relevant witnesses. It also failed to follow its own formal procedures for investigating a complaint. The Court also opined on other types of procedural regularities that might arise under the facts as plead. For instance, the Court explained, “when the evidence substantially favors one party’s version of a disputed matter, but an evaluator forms a conclusion in favor of the other side (without an apparent reason based in evidence), it is plausible to infer (although by no means necessarily correct) that the evaluator has been influenced by bias. Similarly where decision-makers choose ‘to accept an unsupported accusatory version over [that of the accused], and declined even to explore the testimony of [the accused’s] witnesses,’ this too ‘gives plausible support to the proposition that they were motivated by bias.’”

The Second Circuit also recognized that where, as here, Menaker’s termination was alleged to have occurred against a backdrop of ongoing criticisms from student and faculty that Hofstra needed to react more forcefully to allegations of sexual harassment by female students, it was plausible to infer bias and to conclude that “the university was motivated to ‘favor the accusing female over the accusing male’ in order to demonstrate its commitment to protecting female students.” Of course, it was still up to Menaker to prove bias at the end of the day, but according to the appeals court, such allegations were sufficient to survive an early dismissal motion.

The Bottom Line for Employers

In the wake of the #MeToo movement, there is increased public pressure to aggressively address allegations of sexual harassment in the workplace. The eradication of harassment in the workplace is without a doubt a fundamental and mandatory goal all employers must pursue, but the pursuit of this goal should not displace the requirement to conduct a thorough and thoughtful investigation–which means following investigatory procedures, interviewing witnesses, looking for relevant evidence, and making informed and reasoned findings and credibility determinations. Investigations must also be conducted free from both actual and perceived bias and stereotypes about the culpability and/or credibility of one sex over another. As the Menaker case demonstrates, the failure to take these steps could, in some scenarios, support a claim by the accused not that he/she was denied due process rights, but that he/she was actually the victim of a discriminatory investigatory process.