|Grand Canyon Centennial|
The Second Circuit's decision in Menaker v. Hofstra University, No. 18‐3089‐cv (Aug. 15, 2019), is a forceful reminder that men accused of sexual harassment need to be treated fairly. For decades, men's egregious sexual conduct has been ignored. The correct response, still, is not to assume that men are sexual harassers, but to treat allegations of sexual misconduct the same way we treat allegations of other forms of serious misconduct.
As explained by the court, the plaintiff was able to establish an inference of sex discrimination based on evidence of: 1) procedural deficiencies in the university's investigation of a female student's accusation of sexual harassment by the plaintiff; and 2) pressure on the university to react more forcefully to accusations of male sexual misconduct. Evidence of the procedural deficiencies included the university's failure to interview potential witnesses identified by the plaintiff and failure to follow the process under the university's harassment policy. Evidence of sex-based pressure on the university included a "Dear Colleague" letter by the Department of Education providing guidance to educational institutions on how they should investigate claims of sexual misconduct. Significantly, even in the absence of the specific pressure on the defendant in this case, the indisputable impact of the #MeToo movement would likely be enough to establish the requisite pressure:
[W]hen 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.If a woman were accused of sexual harassment and fired without being given a fair shake, she wouldn't be able to establish sex discrimination as readily as a man could. That difference reflects the stereotypes of men as sexual harassers. If men and women were treated the same, then neither sex could claim discrimination.
To bolster its conclusion, the court further relied on the "cat's paw" theory in holding that the discriminatory motive of a third party can be imputed to an 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." Here, the university controlled the complaint process under which the plaintiff was accused of sexual misconduct, and the university referenced the accusations in explaining why it was firing him. Because of the procedural irregularities, a district court could conclude that the university's response to the accusation was negligent.
In my view, the court was likely justified in relying on the cat's paw theory in this case, but its description of the standard is incorrect. Missing from the court's analysis is the requirement of notice. If an employer neither knew nor should have known that a third party, such as a student or customer, was motivated by discriminatory bias, then the third party's discriminatory bias cannot be imputed to the employer. Thus, if an employer takes an action in response to a customer complaint motivated by racial bias, the customer's bias cannot be imputed to the employer unless it knew or should have know about the customer's bias. The employer's control and negligence may also be necessary, but contrary to what the Second Circuit said, they are not enough.
Nonetheless, the court's misstep likely did not affect the outcome in this case where the court reasoned that because the plaintiff was not accused of "just any conduct [but was accused] of sexual misconduct," a rational fact finder could infer that the accusation was based, at least in part, on the plaintiff's sex.
Without question, the #MeToo movement has brought to light deep-rooted discriminatory practices and led to much-needed reforms in the way accusations of sexual harassment are treated. We just need to remember that #MeToo must not be used to justify the same kinds of sex-based stereotypes that it is intended to eradicate.
This blog reflects the views solely of its author. It is not intended, and should not be regarded, as legal advice on how to analyze any particular set of facts.