Feeling the Pressure

An appeals court rules that the firing of a former Hofstra University tennis coach accused of sexual harassment may have been motivated by public arm-twisting.

August 16, 2019

A former Hofstra University tennis coach who was fired after being accused of sexually harassing a team athlete will be allowed to sue the university, a federal appeals court ruled on Thursday.

The coach had alleged, in a lawsuit dismissed by a lower court, that he was fired in September 2016 because Hofstra was under public pressure to respond to sexual misconduct on campus, particularly by men. He sued the university in 2017. The ruling now allows the lawsuit to go forward.

The U.S. Court of Appeals for the Second Circuit found that the firing of coach Jeffrey Menaker could constitute sex discrimination and violate the federal employment law, Title VII of the Civil Rights Act of 1964, U.S. Circuit Court, Judge José A. Cabranes wrote in the ruling. The judge drew comparisons between Menaker's case and how universities were pressured to reduce campus sexual assaults after the Obama administration released new guidance in 2011 on how colleges should adjudicate assault cases under the federal law barring sex discrimination, Title IX of the Education Amendments of 1972. At that time, the administration was intent on cracking down on sexual assaults, many of which were carried out by men. Universities that flouted the law or ignored the guidance by not investigating cases and sanctioning those determined to be involved in sexual misconduct, could lose their federal funding.

Judge Cabranes noted that the guidance "ushered in a more rigorous approach to campus sexual misconduct allegations."

U.S. Education Secretary Betsy DeVos rescinded the guidance nearly two years ago.

Hofstra, a private institution in New York, was already under investigation by the Obama administration's Education Department, prior to Menaker's firing, for potentially mishandling sexual misconduct claims and not responding forcefully to sexual violence on the campus. This may have given Hofstra the rationale to fire Menaker without following the university's formal processes for terminating employees, Cabranes indicated in the opinion.

The opinion means that the lawsuit will be heard by the lower district court.]

Michal Kaplan, a former player on the women's team, had told Menaker in April 2016 that his predecessor had promised Kaplan, then a first-year student, a full scholarship in her sophomore year. Only about half of her tuition was covered under her scholarship at the time.

Menaker said in the complaint that he could not find any record of this agreement, but told Kaplan she would be given a full scholarship in her junior and senior years. Menaker contends that he received a phone call the following month from Kaplan's irate father, who threatened that trouble would "come back to" Menaker if Kaplan didn't receive a full scholarship.

Kaplan's lawyers later sent a letter to the university accusing Menaker of "unwanted and unwarranted sexual harassment" and alleging that Menaker threatened to revoke Kaplan's scholarship and position on the team after she rejected his advances. The letter also accused Menaker of being obsessed with Kaplan's menstrual cycle and of instructing the tennis players to "dress nice" and "shave their legs."

Menaker denied all the allegations. He met with Hofstra administrators, who said they would investigate the letter's claims. Menaker gave university officials records of all his communication with Kaplan and recommended the names of other athletes he thought officials should interview. According to Menaker's complaint, one administrator allegedly told him that he believed the complaint against him was a ploy by Kaplan's parents.

The university did not follow up with the athletes Menaker suggested investigators interview, or follow its own policies for firing an employee, the lawsuit states.

The university successfully got the suit dismissed from district court, but Cabranes wrote that the lower court had misinterpreted a Title IX case on which Menaker based the arguments in his lawsuit. In that case, Doe v. Columbia University, a male student at Columbia accused of sexual assault alleged that his suspension was motivated by an "atmosphere of public pressure demanding that the university react more swiftly and severely to female complaints of sexual assault against males."

Cabranes wrote that the district court was too limiting in the application of that case. Just because Menaker is not a student, and the alleged misbehavior was sexual harassment and not sexual assault, doesn't mean the same principles in the case don't apply. Criticism of the university's response to sexual assault also doesn't have to reach a "crescendo" for officials to feel public pressure, Cabranes noted.

"We decline to adopt each of the District Court's proposed limitations on Doe v. Columbia," Cabranes wrote. "The logic of that precedent applies to both students and employees, to accusations of sexual harassment as well as sexual assault, and it does not rely on a particular quantum of criticism at a specific university."

Menaker also noted in his initial lawsuit that the university had failed to interview potential witnesses and that an official knew at least one allegation against him was false. He also never received a report that he said he was promised detailing the investigation.

Jill Rosenberg, Hofstra's legal counsel, provided a written statement on the university's behalf:

"The Second Circuit has ruled that the complaint should not be dismissed at this early stage of the case, but we are confident that Hofstra's actions and decisions will be upheld once the merits of this matter are considered in the lower court. We look forward to demonstrating there was no discrimination in the university's actions."


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