Hofstra Tennis Coach Can Sue Over Sex Harassment Probe, Firing

Alleged “procedural irregularities” in the investigation of a Hofstra University tennis player’s sexual harassment accusations against her coach may support his claim that he was really fired because of his sex, the Second Circuit ruled Aug. 15.

“When universities design and implement polices to ensure the security of their students, they facilitate their sacred mission of educating the next generation. But when they distort and deviate from those policies, fearfully deferring to invidious stereotypes and crediting malicious accusations, they may violate the law,” Judge Jose A. Cabranes said.

Female tennis player Michal Kaplan filed her sexual harassment complaint against Jeffrey Menaker after he allegedly reneged on his predecessor’s promise to increase her athletic scholarship for the upcoming year, the court said.

While Kaplan’s “primary” motive may have been financial or revenge, Title VII requires courts to look at secondary motives as well, Cabranes said. Kaplan didn’t accuse Menaker “of just any misconduct.” She accused him of “sexual” misconduct, suggesting Menaker’s sex played a role, the judge said.

The circuit has previously held that employers may be held liable under Title VII for misconduct by “certain non-employees,” he said. Hofstra may have exercised the high degree of control over Kaplan’s behavior and facilitated her sexist intent through its own negligence, Cabranes said.

The university could be held liable for the bias of its student-athlete under the same principles of agency law applied in non-student cases, he said.

The university controlled Kaplan’s enrollment, her tennis scholarship, and the Title IX of the 1972 Educational Amendments Act process through which she leveled and pursued her charges against Menaker, Cabranes said.

Among other things, the probe into the sexual harassment allegations included such procedural irregularities as failing to interview witnesses identified by Menaker, ignoring a university vice president’s knowledge that at least one of Kaplan’s accusations was false and that she was unhappy with her scholarship, and disregarding the process laid out in the university’s anti-harassment policy, the Second Circuit said.

A lower court misread precedent when it “sought to minimize or explain away these clear” problems with Hofstra’s probe and dismiss Menaker’s lawsuit, it said.

The Title IX case Doe v. Columbia University also applies to plaintiffs accused of sexual harassment, not just sexual assault, Cabranes said. It likewise applies to employees alleging bias, not just students, and the alleged bias doesn’t need to have occurred in an environment where criticism of the university’s past handling of sexual misconduct complaints has reached a “crescendo,” he said.

Judges Peter W. Hall and Timothy C. Stanceu joined the opinion.

Offit Kurman P.A. represents Menaker. Orrick, Herrington & Sutcliffe LLP represents Hofstra.

The case is Menaker v. Hofstra Univ., 2d Cir., No. 18-03089, 8/15/19.