The Second Circuit has issued a significant decision impacting human resources and student affairs practitioners. See, Menaker v. Hofstra Univ., No. 18-3089-CV, 2019 WL 3819631, at *7 (2d Cir. Aug. 15, 2019). This decision applies the low Doe v. Columbia pleading standard in Title IX student-on-student sexual misconduct cases to employment-based Title VII cases. And, it makes clear that “even minimal evidence of pressure on the university to act,” combined with “clear procedural irregularities” can satisfy the pleading burden for a respondent-side Title VII or Title IX sex discrimination case.
It also establishes the “cat’s paw” theory of liability in the Title VII university context. If the university negligently allows a student to abuse its investigative and adjudicatory process to retaliate against a faculty or staff member, then the university can be liable for that student’s discriminatory motivation.
The following facts were drawn from the amended complaint and accepted as true for purposes of the underlying motion. Menaker, at *1. The plaintiff was a head tennis coach who got into a dispute with a first-year student athlete. Id., at *2. The student claimed that a prior coach had promised her an increase in her tennis scholarship, but the plaintiff said he had no knowledge of that and couldn’t increase her scholarship until her junior and senior years. Id. The student’s father threatened the plaintiff and said that if he didn’t increase his daughter’s scholarship, trouble would “come back to him.” Id. Then, the student filed a Title IX complaint alleging that the plaintiff subjected her to sexual harassment. Id.
While the Title IX complaint was being investigated, the university was under pressure from internal sources, the Department of Education, and the national press for its mishandling of sexual misconduct by men. Id., at *1. In turn, the university did not follow its own “Harassment Policy” in investigating the student’s Title IX complaint. Id., at *3. The plaintiff did not receive any notice of the charges or an adequate chance to respond to them. Id. He was fired for “unprofessional conduct” several months after the filing of the Title IX complaint. Id.
The plaintiff brought a claim to the U.S. Equal Employment Opportunity Commission, received a Notice of Right to Sue letter a few months later, and filed a federal lawsuit. Id., at *4. The district court dismissed his Title VII and associated state discrimination claims. Id. The Second Circuit reversed and remanded. Id., at *1.
The Second Circuit requires the pleading of "specific facts that support a minimal plausible inference" of discrimination on the basis of gender. Doe v. Columbia University, 831 F.3d 46, 56 (2016). The Second Circuit reasons that Title IX plaintiffs, and plaintiffs in employment discrimination lawsuits brought under Title VII, should benefit from a "temporary presumption" that they have been discriminated against. Id. The alleged facts "need support only a minimal inference of bias" that the defendant institution can respond to after the motion to dismiss stage. Id.
In Menaker, the Second Circuit held the district court improperly limited the scope of Doe v. Columbia in three ways. Menaker, at *6. First, the district court held that the Doe v. Columbia pleading standard only applied to sexual assault, while the Second Circuit would apply it more broadly to all types of sexual harassment. Id. Second, the Second Circuit made clear that Doe v. Columbia burden-shifting applies to both Title IX and Title VII claims; the district court would have limited its application to student-on-student Title IX claims. Id. Third, the Second Circuit lightened the specific allegations needed for pleading purposes. Id., at *7. The plaintiff need not allege “severe” pressure on the university leading to discriminatory outcomes against men; it merely needed to allege a combination of procedural irregularities and some “minimal” amount of pressure “to act based on invidious stereotypes” to state a cognizable claim. Id. To plead a prima facie sex discrimination claim, then, the plaintiff must allege that (1) there was an adverse action against a student or employee, (2) that action was in response to allegations of sexual misconduct, (3) that adverse action followed “a clearly irregular investigative or adjudicative process,” and (4) that action occurred “amid criticism for reacting inadequately to allegations of sexual misconduct by members of one sex.” Id.
Even as the Menaker court has potentially opened the door to more claims from faculty, staff, and students, note that the Ninth and Sixth Circuits have recently criticized the Doe v. Columbia standard as being too plaintiff-friendly. See, Austin v. Univ. of Oregon, 925 F.3d 1133, 1138 (9th Cir. 2019) (plaintiff must offer "sufficient, nonconclusory allegations plausibly linking the disciplinary action to discrimination on the basis of sex. . . . Just saying so is not enough”); Doe v. Baum, 903 F.3d 575, 580 (6th Cir. 2018) (plaintiff must plausibly suggest the ability to meet the elements of the claim, which occurs "when it contains enough factual content that the court can reasonably infer that the defendant is liable.") It remains to be seen what impact these different standards have on the ability of plaintiffs to survive a motion to dismiss, or whether this split in authority will lead to review by the U.S. Supreme Court.
The Second Circuit has also directed the district court to consider the university’s liability based on a cat’s paw theory. Under a typical vicarious liability claim, employers can be held liable for their agent’s discriminatory conduct. The agent is motivated by discriminatory intent and performs the relevant adverse action, and the conduct is imputable to the employer. By contrast, under the cat’s paw theory, the agent does not actually perform the adverse conduct. The employer does, but unwittingly. The agent’s discriminatory intent is imputed to the employer after the agent “manipulates an employer into acting as a mere conduit for his [discriminatory] intent.” (Internal quotation marks omitted.) Menaker, at *10.
The court’s decision here is that, with the facts taken as true, it is plausible that the university “negligently or recklessly implemented” the student’s “discriminatory design” by allowing her to abuse its investigative and adjudicatory process. Id., at *12. This theory could sustain a Title VII complaint because the student’s accusations were motivated, “at least in part,” by sex, even if her primary motivations were “financial or vindictive.” Id., at *11. Because the student accused the plaintiff of sexual misconduct, the plaintiff’s sex played a part in her allegations, thereby permitting a Title VII claim grounded in cat’s paw liability. Id.