In recent years male students who were removed from school following a Title IX investigation have sued, claiming that the school’s investigation was unfair and biased against them as males. As we discussed in a recent post, these claims have seen some success in the courts. Similar arguments are now being made by employees who are terminated after Title IX investigations, and a recent case from Pennsylvania demonstrates that an insufficient investigation can expose an employer to liability in such cases.

In December 2017, a university received separate letters from female professors at two other universities, both of whom complained about a professor’s conduct at conferences in March 2016. One female alleged that the professor forced a kiss on her, and the other female alleged that the professor offered her a room key instead of a business card. The university investigated the incidents, found that he had harassed these women, and therefore terminated his employment.  The professor believed the investigation was biased and insufficient, however, so he brought an erroneous outcome claim under Title IX against the university.  In order to succeed on such a claim, an employee must present evidence of (1) articulable doubt on the accuracy of the investigation, and (2) particular circumstances suggesting gender bias was a motivating factor behind the erroneous finding.  In this case, the court found that the professor has alleged facts that demonstrated an insufficient investigation and demonstrated bias against him as a male because the university’s investigator allegedly:

  • Did not sufficiently apprise him of the nature of alleged incidents;
  • Did not interview the exculpatory witnesses he identified;
  • Did not investigate his claim that his own supervisor at the university attempted to kiss him during a conference in New Orleans in 2015, and that he was being subjected to differential treatment;
  • Relied on “gender-based stereotypical accusations” in the investigation, such as noting that the professor engaged in “typical male verbal flirting behavior” and had “difficulty” working with unnamed females; and
  • Refused to give the professor a hearing to present witnesses, refused to give him a copy of the report, and refused to allow him to respond in writing to the report.

Based on these allegations, the court denied the university’s motion to dismiss the lawsuit, which requires the parties to move forward with discovery, depositions, and potentially a trial.

As demonstrated by this ruling, employers must ensure that they have an appropriate individual investigating a workplace complaint, and also must ensure that every investigation is done as objectively and thoroughly as possible. Such an investigation will demonstrate to the parties that it was fair, it will help the employer make the best decision possible at the conclusion of the investigation, and it will provide a strong defense to any future claims of bias or impropriety made by an employee.