Sexual Harassment Allegation Leads to Employer Discrimination Against Accused

By Lehr Middlebrooks Vreeland & Thompson, P.C.

November 21, 2019

When greeted with allegations of sexual harassment, any employer is understandably concerned. When those allegations are against a man in a position of power, that concern tends to be elevated. Some hasty employers might even begin with a presumption that such archetypal sexual harassment allegations are likely true. Absent a contractual protection, an employee of a private employer is generally not due any measure of due process. And, an employee accused of harassment is generally unable to sue for retaliation or discrimination even if his or her termination was unjustified, even if it was the product of an overzealous zero tolerance policy or practice, and even if the employer's investigation was flawed. However, if an employer's flawed decision-making stemmed from its own presumptions about the protected class of the accused (e.g., it assumed a male in position of authority would be guilty of sexual harassment), then the accused employee might just have something.

Such was the case in Menaker v. Hofstra University (2nd Cir. Aug. 15, 2019). Menaker was the men's and women's tennis coach at the University. Menaker did not honor his predecessor's commitment to increase the scholarship level for a women's tennis player. Thereafter, the student's father called the coach to tell him that he was heading for trouble if he did not increase his daughter's scholarship. Subsequently, she accused the coach of sexual harassment, alleging that he made sexual advances, posted improper comments on social media, and told her and other women to dress nicely and to shave their legs. She alleged that he responded to her refusal to submit to sexual advances by threatening her scholarship. The coach denied the allegations.

The University investigated the allegations and two months after they were made, terminated the coach. He sued, arguing that he was terminated because of his gender and, as evidence, he proved the employer failed to follow its protocols regarding allegations of sexual harassment. For example, he was told that he would receive a copy of the investigation report, but he did not. He provided witnesses for the University to speak to, but the University did not speak with them. The University had a written investigation procedure, but it did not follow that procedure. The coach's supervisor was aware of information which would discredit the accuser, but that was not considered.

The Court stated that Menaker properly asserted a case of sex discrimination. The employer took adverse action, the employer's investigation process was not followed, and the employer had recently been criticized under Title IX for failing to take seriously sexual assault complaints by female students against male students. Further, the employer had very clear procedures for investigations of complaints, from which it deviated substantially. The Court stated that "when [employers] distort and deviate from [their] policies, fearfully deferring to invidious stereotypes and crediting malicious accusations, they may violate the law."

It is essential from an internal cultural credibility perspective as well as risk management that employers conduct a thorough, objective investigation about harassment allegations. Do not approach a harassment allegation by deciding the outcome and then investigating to find facts that support that decision.

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