Legal Blog

Offit Kurman Establishes New Employment Law Principle in the Second Circuit

Menaker v. Hofstra Univ. 935 F. 3d 20, 2019 U.S. App. LEXIS 24283, 2019 WL 3819631 (2d Cir. 2019) (citations below are to the Lexis report).

See the decision here »

Offit Kurman prevailed in a unanimous Second Circuit decision this August in which the Court vacated the dismissal of a sexual discrimination case brought by Jeffrey Menaker against his former employer, Hofstra University. The decision was issued by a three-judge panel consisting of Circuit Judges José A. Cabranes, who wrote the decision, Peter W. Hall and Chief Judge Timothy C. Stanceu of the United States Court of International Trade, sitting by designation.

Factual Synopsis

In early 2016, Menaker joined Hofstra as its Director of Tennis and Head Coach of its men’s and women’s varsity tennis teams. In April 2016, a first-year member of the women’s varsity tennis team asked Menaker to confirm that her partial athletic scholarship would be increased to a full scholarship in the next academic year, as supposedly promised by the predecessor coach. Menaker knew nothing about the arrangement and said he would look into the matter. Menaker inquired with the Hofstra athletic department, which advised him that there was no record of any promise to increase the student’s scholarship. Menaker reported this to the student, told her he could not increase her scholarship in the coming year but could do so for her junior and senior years. Shortly thereafter, Menaker received a call from the student’s father demanding that the scholarship be increased and threatening recriminations if it was not.

In July 2016, Hofstra’s Deputy General Counsel, Vice President, and Director of Athletics summoned Menaker to a meeting. During the meeting, Menaker was informed that a lawyer for the student had sent a letter to Hofstra accusing Menaker of sexual harassment against the student and demanding compensation from the university. Menaker was shown the letter during the meeting and denied the accusations.

At the time, Hofstra maintained a written “Harassment Policy,” which “covers the conduct of all University employees and students” and outlined proper procedures for investigating and resolving sexual harassment claims. It provided for both “informal” and “formal” procedures. The latter procedures include 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. The informal procedures could be invoked with the consent of the parties to the complaint. Hofstra did not seek Menaker’s consent to pursue the informal procedure. Instead, its deputy general counsel told him she would be investigating and would issue a report to which he could respond.

Over the following two months, Menaker provided Hofstra copies of his communications with the student. He pointed out that the time frames described in the letter were provably false, and suggested names of witnesses. The Athletics Director advised the Hofstra investigator that the only complaint by the student of which he had direct knowledge was false. He told Menaker privately that he assumed the complaint was a ploy to extort money from Hofstra and not to be concerned about the risk to his employment.

In early September 2016, Menaker was summoned to another meeting. The deputy general counsel read the list of accusations, including the accusation previously denied by the Athletics Director. No “report” was provided, and there was no indication that any interviews or other investigation had occurred. Instead, Menaker was told that he was fired for “unprofessional conduct” based on the “totality” of the accusations.

This all took place during a background of public debate and criticism concerning the handling of allegations of sexual harassment and misconduct by Hofstra, which had received a public letter from the U.S. Department of Education questioning the university’s commitment to addressing the problem of sexual assault and harassment on its campus (the “Dear Colleague” letter of 2011).

Following termination of employment, Menaker brought a charge of gender discrimination against Hofstra with the U.S. Equal Employment Opportunity Commission. Menaker charged that Hofstra’s summary action against him, without resort to its published procedures, reflected bias against him because his accuser was female and he was a male. The EEOC ultimately issued a right to sue letter, and in August 2017 Menaker proceeded in court against Hofstra for gender discrimination. The United States District Court for the Eastern District of New York dismissed the case. On appeal, the Second Circuit reinstated the case, finding that Menaker’s complaint stated a basis for relief under established authority, in particular, under a recent case called Doe v. Columbia University, 831 F.3d 46 (2d Cir. 2016).

In its decision, the Second Circuit panel made several points:

  • First, it clarified and arguably expanded the reach and significance of its holding in Doe v. Columbia.
  • Second, it admonished the District Court for making findings of fact that were unwarranted at the dismissal stage.
  • Third, it advised that the “cat’s paw” theory of vicarious liability should be considered in case like this one.


The Governing Applicability of Doe v. Columbia

In Doe v. Columbia, the plaintiff – a male student accused of sexual assault – alleged that due to publicized criticism of the university for not doing enough about male misconduct against women, Columbia had reacted unfairly in its disciplinary actions against him. He pointed to substantial procedural irregularities in the investigation and mishandling of adjudication against him. The Second Circuit found that given these public pressures, these irregularities supported an inference that the university was motivated, at least in part, by gender bias. The court found it plausible that the university was motivated to “favor the accusing female over the accused male” in order to demonstrate its commitment to protecting female students from male sexual assailants.

In applying Doe in the Menaker case, the District Court interpreted Doe as applying only to cases of sexual assault, rather than sexual harassment, only to student plaintiffs (under Title IX of the 1964 Civil Rights Act), not to employee plaintiffs (under Title VII), and only in circumstances where criticism of a university had reached a “crescendo.” The Second Circuit concluded that none of these limitations should have been imposed.

The court summarized its clarification of Doe v. Columbia 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” (Menaker at *17). The court found that all of these requirements had been alleged by Menaker.


A Clearly Irregular Investigative or Adjudicative Process

The court had more to say on what constitutes “a clearly irregular investigative or adjudicative process.” While no precise standard exists, the court provided examples. An inference of a motivation of bias may be made (1) 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 the evidence; or (2) where decision-makers choose to accept an unsupported accusatory version over that of the accused, and decline even to explore the testimony of the accused’s witnesses.

The court held that the facts as pleaded by Menaker were akin to both examples – i.e. the lack of an investigation, the lack of an investigative report, the statements from management agreeing that the accusation was extortionary, and the disregard for Hofstra’s written procedure in its employee policy handbook – all of these allegations, if established by the evidence, would allow for an inference of bias.


Recasting Discriminatory Facts in Other Terms Is Not a Solution

As a further ground for reversal, the Second Circuit found that the District Court had “failed to draw all reasonable inferences in Menaker’s favor and made improper findings of fact” (id. at *19-20). The District Court had erred in finding that Hofstra’s failure to comport with its written harassment policy was acceptable because Menaker was fired for “unprofessional conduct,” not harassment. The Second Circuit emphasized that re-labelling a biased motive does not cure the discrimination. “Hofstra’s conclusion that Menaker had engaged in ‘unprofessional conduct’ derives from—and simply recharacterizes—the sexual harassment accusations in the …Letter [from the student’s lawyer]… An employer cannot escape its promise of procedural protections by recharacterizing accusations of sexual misconduct in more generic terms” (id. at *22-23).


The “Cat’s Paw” Doctrine – Imputing an Agent’s Discriminatory Intent

The Second Circuit further held that the so-called “cat’s paw” theory of vicarious liability may apply to cases such as this. A “cat’s paw” case is based on standard principles of a principal’s vicarious liability for the acts of its agent: such liability may arise in Title VII if (1) the employer’s agent (a) was motivated by discriminatory intent, (b) effected the adverse employment action; and (2) the agent’s conduct can be imputed to the employer under principles of agency.

In a “cat’s paw” case, by contrast, only the intent of the agent is imputed to the employer, who ultimately accomplishes or effects the adverse employment action. The agent manipulates an employer into acting as a mere conduit for his discriminatory intent,[1] for instance by falsely accusing an employee of sexual harassment in the hopes of advancing her interests. So long as the agent intended and was the proximate cause of the adverse result, and the employer furthers that intent by acting negligently, the agent’s discriminatory intent may be imputed to the employer. The Second Circuit held that Menaker alleged facts from which it may plausibly be inferred that Hofstra served as a conduit for the student’s discriminatory intent and that this intent may be imputed to Hofstra.

The Second Circuit explained that while the student’s primary motivation may have been to extort money from Hofstra, Title VII requires that a court determine whether sex was a motivating factor. Since the student accused Menaker of not just misconduct but sexual misconduct, such an accusation could be based at least in part on Menaker’s sex, sufficient for a claim under Title VII.

The Court held that the discriminatory intent of a student can be imputed to a university where that university exercises a high degree of control over the behavior of the student and negligently permits her discriminatory conduct or effectuates her discriminatory intent. In the instant case, Hofstra controlled not only the student’s academic enrollment and athletic scholarship but also the very complaint process by which she sought to effectuate her allegedly discriminatory intent. Hofstra did the rest – it implemented the student’s discriminatory intent.


Implications of the Second Circuit’s Decision

Menaker v. Hofstra constitutes an important development in federal anti-discrimination law. For educational institutions, it sends the message that they must take their procedures for investigating and resolving sexual harassment claims seriously. Regardless of the identities, genders, and roles of the accuser and the accused, investigations should be thorough, impartial, and must closely follow any investigative and adjudicative procedures that may exist. Neither the accuser or the accused should be judged until a detailed investigation has been concluded, the results recorded, and a fair opportunity to respond permitted. Otherwise, an institution might find itself in the position of the cat holding a burnt paw – having effectuated the discriminatory intent of another party making it liable for the discriminatory result.

American society has become highly conscious of gender bias and sexual harassment as issues in established institutions. Many such institutions have been criticized for inadequately addressing these issues. In the present climate, the risk of employer liability has increased. An inference of gender bias can be made by finding four factors: (1) 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 of the institution reacting inadequately to allegations of sexual misconduct by members of one sex. The investigative process and subsequent action are within the control of the employer. How they carry out these processes may determine whether the employer itself faces liability. In the educational context, it is imperative that the institution follows its own procedures carefully, especially since “even minimal” public pressure to act based on gender stereotypes can create the potential for an inference of bias. As stated by the Second Circuit in its opening paragraph, “When universities design and implement policies [and then] deviate from these policies, fearfully deferring to invidious stereotypes and crediting malicious accusations, they may violate the law” (id. at *2).


[1] This is based on Aesop’s fable of “The Cat and the Monkey,” in which the monkey urges the cat to pull chestnuts from the fire. The cat does so and in the process burns her paw. The monkey picks up and eats the chestnuts. It is a parable for a manipulative individual using others to achieve their ends.


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