Schools Must Take Care to Follow Established Complaint Procedures When Investigating Student Complaints of Sexual Harassment Against Employees In Order to Avoid Potential Liability for Sex Discrimination

In two cases this month, the Federal Court of Appeals for the Second Circuit has opined that a college may be found liable for sex discrimination when it acts on allegedly false accusations of sexual impropriety made by students against a faculty member. These cases stress the importance of following internal complaint procedures and completing thorough investigations before taking disciplinary action against an employee based on student or other complaints.  Otherwise, it may open the college up to a claim of discrimination based on the complaining student’s alleged biases.

The first case, Naumovski v. Norris et al., involved Elizabeth Naumovski, an assistant coach for the State University of New York at Binghamton’s women’s basketball team who resigned in lieu of termination for performance issues.  The college claimed she was recommended for termination because she had demonstrated favoritism toward certain students and because she had instigated workplace conflicts with the head coach, causing disruption to the program.  Naumovski sued the college claiming sex discrimination (among other things) and alleged that she was not terminated for performance, but rather due to untrue rumors spread by student-athletes that she was engaged in an inappropriate sexual relationship with a student-athlete.  Her complaint named Binghamton’s Senior Associate Athletic Director and the Head Coach, individually, claiming that her termination was based on false allegations of sexual misconduct made by a student-athlete and thus equated to sex discrimination in violation of the Equal Protection Clause of the United States Constitution.  While the Second Circuit ultimately found for the individual defendants because the alleged conduct did not rise to the level of a constitutional violation, the case is notable both for its analysis of the different standards applicable to claims of sex discrimination under Title VII and the U.S. Constitution, and its finding that students may be considered agents of their college when their complaints of misconduct are relied upon for employee discipline.

In contrast to the U.S. Supreme Court’s recent determination that plaintiffs bringing discrimination complaints under Title VII need only prove that the individual’s sex (or another protected characteristic) was a “motivating factor” in the adverse employment decision, even if the employer also had other reasons to support the adverse action, in the current case, the Second Circuit made it clear that an employee claiming discrimination under the Equal Protection Clause of the U.S. Constitution must meet the higher “but for” standard. Thus, in order to prevail, the plaintiff must be able to prove that the employer’s stated non-discriminatory reason is either “false or inadequate to support the adverse employment action.”  This, therefore, is a much harder standard to meet than for claims brought under Title VII.  The Court ultimately found that this standard was not met in this case.

More troubling to employers is the Court’s suggestion that the student-athlete’s allegedly false accusation of sexual misconduct could be imputed to the school, even though the school had little control over the student in question. Here, the Court opined that if, as alleged by the plaintiff, the student’s allegations of sexual misconduct were malicious and false, they could raise an inference of sex-based animus.  The Court then suggested that had the claim been brought under Title VII (as opposed to the U.S. Constitution), and it was found that the school negligently relied on false student accusations to terminate the plaintiff, then the college might have been acting as a “mere conduit” for the student’s sex discriminatory animus and thus could violate Title VII even though the decision makers had no discriminatory animus against the employee.

Several days later, in the case of Menaker v. Hofstra University,  the Second Circuit once again emphasized its belief that the cat’s paw theory of liability (where an employer may be held liable for the actions of a biased supervisor when that supervisor influenced the actions of an unbiased decision-maker) might apply to a college that took disciplinary action against a faculty member based on an allegedly false and discriminatory student complaint of sexual harassment against an employee.  This case addressed the claims of sex discrimination made by an athletic coach who was terminated for “unprofessional conduct.”

Menaker was the Director of Tennis and Head Coach for both the men’s and women’s tennis teams at Hofstra.  A female student filed a complaint against him alleging sexual harassment.  Menaker claims that the complaint was false and was filed only after he denied the student a scholarship.  According to the complaint, there were several irregularities in the way that the student’s complaint was investigated, including a failure to follow the employer’s own written harassment procedure and a failure to interview relevant witnesses identified by the accused employee.

The Court held that because the student accused Menaker of sexual harassment instead of unspecified harassment, his sex appeared to be a motivating factor in the student’s accusation.  The Court then held that the student’s discriminatory intent might be imputed to Hofstra under agency principles because the university exercised a high degree of control over the behavior of its athletes, and because the facts, as alleged by the plaintiff in his complaint, suggest that Hofstra negligently effectuated the student’s discriminatory intent based on alleged procedural irregularities in the complaint investigation.  The Court thus held that:

Where a university (a) takes an adverse employment action against an employee (b) in response to an allegation of sexual misconduct, (c) following a clearly irregular investigation or adjudicative process, (d) amid criticism for reacting inadequately to allegations of sexual misconduct by members of one sex, these circumstances support a prima facie case of sex discrimination.

The Court further held that:

Where (a) a student files a complaint against a university employee, (b) the student is motivated, at least in part, by invidious discrimination, (c) the student intends that the employee suffer an adverse employment action as a result, and (d) the university negligently or recklessly punishes the employee as a proximate result of that complaint, the university may be liable under Title VII.

Because the case was at the motion to dismiss stage, the Court was required to accept all of the facts, as alleged by the plaintiff, as true. Thus, while the Court reversed the grant of Hofstra’s motion to dismiss at this early stage of the litigation, its ruling on this motion does not mean that the employee will, ultimately, be able to prove that his termination was discriminatory based on his sex.

So, what is the take-away? Schools must ensure that their internal complaint procedures are followed when investigating complaints of sexual harassment (and other types of harassment as well) made by students against school employees.  The investigation should be well documented and all conclusions should be supported by factual findings.  The Court has signaled that any irregularities in the investigation procedure may be interpreted as support for a claim of sex discrimination if the accused is terminated, or otherwise disciplined, based on an allegedly false student complaint.