#MeToo and the Backlash to the Backlash

by | Sep 30, 2019 | Labor & Employment | 0 comments

Valerie K. Ferrier and Stacey J. Lococo

Since the start of the so-called “#MeToo Era,” more and more women who experienced sexual harassment at work have gone public with stories of bad behavior from their male colleagues. It seems that it was only a matter of time before the inverse surfaced: men alleging reverse gender discrimination. Two recent cases from the Court of Appeals for the Second Circuit highlight this trend, Doe v. Columbia University, No. 15-1536 (2d Cir. 2016), and its progeny, Menaker v. Hofstra University, No. 18-3089 (2d Cir. 2019).

John Doe was a student at Columbia University in 2013, before the advent of #MeToo, when a female student accused him of sexual assault. Columbia investigated and ultimately suspended Doe for a year and a half. Doe filed suit for gender discrimination under Title IX, the law that mandates gender equality in education.

Doe claimed that the University violated its own policies and procedures, meant to protect students accused of sexual misconduct, by favoring the complainant and failing to interview witnesses Doe identified. He alleged that contemporaneous news accounts attached to the complaint established that the University was under significant public pressure based on allegations of past failures to treat allegations of sexual assault with sufficient gravity. He argued that this public scrutiny motivated gender-based discrimination against male students accused of sexual assault in an effort to appease external and internal critics of the school.

Columbia moved to dismiss, relying on precedent rejecting gender bias claims where investigators or adjudicators are more attentive to a complainant than to the accused. The University also challenged the factual accuracy of the complaint, as well as Doe’s allegation that “men against whom complaints of sexual misconduct are asserted are invariably found guilty.”

The District Court for the Southern District of New York dismissed the case. The court deferred to the University’s administration its Title IX process and determination, while allowing that “a desire to avoid Title IX liability to the alleged victims of sexual assault or an effort to persuade the DOE and others that it take sexual assault complaints seriously caused Columbia to ‘maladminister []’ Plaintiff’s disciplinary hearing.” Nevertheless, the court concluded that the University’s subjective motivation “is not discrimination against Plaintiff because of sex.” In so holding, the court held that Doe’s allegations failed to give rise to a “plausible inference that Plaintiff was mistreated because of (rather than in spite of) his sex.”

Doe appealed to the U.S. Court of Appeals for the Second Circuit, which reversed. Analogizing to Title VII, the federal law that mandates gender equality in the workplace, the appellate court held that Doe had raised the necessary “minimal plausible inference of discrimination” by alleging that he was subjected to differential treatment based on his gender, and Columbia’s “pro-female, anti-male bias.”

The Circuit panel discussed the atmosphere of public scrutiny and noted that whether Doe was treated more harshly out of the University’s desire to appear to be taking sexual assault complaints seriously, or because he University had an “anti-male bias” was irrelevant at this stage of the proceedings, and more facts needed to be ascertained before dismissing the complaint. Thus, while the district court was unconcerned with the possibility that the University acted to counter criticism, the Second Circuit held that such motivation may have been sufficient to exact a discriminatory result.

This past summer, the Second Circuit extended the lessons to be drawn from Doe in the case of Menaker v. Hofstra University. Menaker was the Director of Tennis and Head Coach of the Men’s and Women’s tennis teams in 2016 at Hofstra University. He was terminated for unprofessional conduct after Hofstra received a complaint from a freshman tennis player that Menaker sexually harassed her, including on social media. Menaker filed suit against Hofstra for gender discrimination, arguing that the school failed to follow its own sexual harassment policy with respect to investigating the student’s claims. Menaker cited media reports generally discussing sexual assault on college campuses, and noted that the administrative body responsible for his termination was mostly female.

Hofstra moved to dismiss, arguing that Menaker failed to allege any fact that would establish a causal link between his termination and his gender.  Hofstra argued that because Menaker was not fired for sexual harassment, the University’s compliance (or lack thereof) with its own sexual harassment policy was irrelevant. Therefore, the school argued, Menaker could not establish a causal link between a procedural departure and an adverse employment action.

In opposition, Menaker relied on the Second Circuit’s determination in Doe that the fact that the University “‘failed to act in accordance with its own procedures designed to protect’ the accused party supported an inference of bias,” particularly in a context in which there had been significant criticism of Columbia’s response to claims of sexual assault and harassment.

In response to these arguments, Hofstra distinguished Menaker, an at-will employee, from the student plaintiff in Doe. Further, Menaker cited no publications or instances of public criticism specifically directed at Hofstra, in contrast to those against Columbia during the Doe investigation.

The District Court for the Eastern District of New York distilled the parties’ arguments to a single question: “whether the circumstances give rise to an inference of discrimination.” The court reasoned that none of Menaker’s claims supported an inference that the decision to terminate would have been different if a student made the same complaints against a female employee. The court adopted Hofstra’s argument that just because a “decision-maker does not share a protected characteristic with an aggrieved employee does not give rise to a claim of discrimination.” The court further distinguished Menaker’s termination from Doe’s expulsion, because, unlike Doe, Menaker never alleged that the decision-makers “had a history of treating men poorly in similar situations,” and did not depart from policies and procedures because Menaker was not fired for sexual harassment. Menaker appealed.

A panel of the Second Circuit found that the District Court “fail[ed] to appreciate the scope” of Doe’s precedent, and made impermissible factual findings. The panel applied Doe to allegations of sexual harassment against employees, and clarified that the criticism of the defendant university’s handling of sexual misconduct claims need not reach a “crescendo” to establish a discriminatory intent.

The Second Circuit, for the first time, enunciated the necessary elements to establish a prima facie case of sex discrimination in these circumstances.

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.

In Menaker’s own case, the Circuit’s analysis focused on the last factor, considering whether the alleged irregularity in process was sufficient enough to raise an inference of bias. The court reasoned that Hofstra was required to execute its sexual harassment policy once the student filed her complaint, and that its failure to do so, in conjunction with its decision to fire Menaker, although on different grounds, was nevertheless based on the student’s complaint, and therefore was sufficient to raise a plausible inference of discrimination.  The panel cautioned that “an employer cannot escape its promise of procedural protections by recharacterizing accusations of sexual misconduct in more generic terms.”

The opinion also directed the District Court to consider whether the student’s “discriminatory intent could be imputed to Hofstra” under the “cat’s paw” theory of vicarious liability, in which an agent’s intent is imputed to the employer if the “agent manipulates an employer into acting as a mere conduit for his [discriminatory] intent.” Thus, the Circuit specified that Hofstra may face liability if (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.


Doe and Menaker emphasize that when an employee has been accused of sexual misconduct, proper administration of existing investigative policies and procedures is critical.  These cases reflect the burgeoning legal backlash against discrimination claims by women. The Second Circuit opinions highlight the media attention to alleged previous lapses in responsiveness to claims of sexual assault and harassment by women against men, and caution employers and educational institutions not to swing the pendulum too far back the other way by being overly aggressive in the treatment of the accused men. However, no longer enjoying a historical privilege is not tantamount to discrimination.