Be Fair to Accused Harassers, Court Rules

Be Fair to Accused Harassers, Court Rules

by Rita Makana Risser Chai, originally published on Fair Measures

In the #MeToo environment, good employers are committed to giving fair hearings to victims of sexual harassment. But a recent court decision makes clear that fairness works both ways—the accused must be given a fair hearing as well.

Jeffrey Menaker was hired by Hofstra University as its Director of Tennis and Head Coach of both its men’s and women’s varsity tennis teams. A woman tennis player told Menaker that his predecessor had approved her for a scholarship. Menaker checked, could find no record of it, did not have funds budgeted, and denied the scholarship. Thereafter, the woman hired an attorney who wrote a letter to the university complaining that Menaker had sexually harassed her.

The university’s attorney called Menaker into a meeting and showed him the letter. He denied all the allegations. His manager, the VP and Director of Athletics, who was also in the meeting, specifically denied one allegation he knew to be untrue. The attorney said she would get back to Menaker.

The university policy required an investigation, that the investigator interview potential witnesses, that accused parties have the right to submit a written response, and that the investigator produce a written determination of reasonable cause. Menaker gave the university names of his witnesses.

The university did not interview any of Menaker’s witnesses, did not formally interview him, did not request a written response from him, and did not produce a written report. However, the university terminated Menaker, not for sexual harassment but for “unprofessional conduct.”

Menaker sued the university for discrimination, alleging that he was denied a fair hearing because of his sex. The U.S. Court of Appeals in New York held that he had alleged sufficient facts to prove discrimination, and ordered the case to go to trial.

What this means to you: A respectful workplace cannot be created if anyone is treated with disrespect. A fair hearing is fair only if everyone is heard. As we say in the law, “No matter how thin the pancake, there are always two sides.”

By R. Makana Risser Chai

Makana Risser Chai is a trainer, HR consultant and former Silicon Valley attorney who specializes in teaching courses on creating respectful workplaces by preventing harassment, bullying, disrespect, and unconscious bias.