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Trust the Process

October 24, 2019

Donald J. Walsh

One of the unintended consequences as the #MeToo movement has swept across the country, is an occasional rush to judgment by employers who take swift corrective action in terminating the alleged harasser.  Recognizing the power of social media and not wanting to obtain unwanted negative social media attention, some employers simply dismiss the alleged harasser relying solely on “at will” hiring policies.  As Hofstra University in New York recently discovered, this snap judgment without a full investigation can lead to liability for gender discrimination by the terminated employee.  In Menaker v. Hofstra Univ., the Second Circuit Court of Appeals just elevated the importance of good HR professionals and provided clear warnings to employers that they need to carefully investigate all claims before they terminate employees accused of harassment.

The facts of the case involved allegations by a student (and her father) that the tennis coach had sexually harassed the student by commenting on her menstrual cycle, making sexual advances, and posting inappropriate comments on her social media account. He had allegedly made similar comments to other female tennis students.  The coach denied all of these allegations, claimed they arose after he refused to increase a scholarship and noted what he described an “atmosphere of harsh criticism of colleges and universities generally” because it had not taken claims of sexual harassment seriously enough.  Despite Hofstra’s procedures dictating an investigation to include interviews, written responses and written findings, the university terminated him without following its procedures.  The tennis coach sued alleging that his gender was “a motivating factor” for his termination.

On appeal, the Second Circuit reinstated his suit reaffirming precedent set three years ago. The Second Circuit found that the tennis coach had stated a valid legal claim.  “When [employers] distort and deviate from [their] policies, fearfully deferring to invidious stereotypes and crediting malicious accusations, they may violate the law.” The court continued:

Rather [our precedent] 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 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.

For falsely accused harassers, this may be a salvo to ensuring that some form of investigation and due process will occur consistent with his/her employer’s policies.  For employers, this is a solid warning that a fear of negative perceptions in the media is no reason to sacrifice policies, processes or employees. Quality and thorough investigations should still be undertaken consistent with the employer’s policies, good practices and by well trained professionals.

If you have questions or need help in developing policies for investigating workplace claims or in conducting one, reach out to the RKW Employment and Labor Group.

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