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Third Circuit Rules for New Jersey Custodian Who Was Allegedly Harassed by a Foreman Who Controlled the Custodian’s Work Assignments

woman walkingAn important New Jersey sexual harassment ruling from the federal Third Circuit Court of Appeals is useful for employees who may have been victims of sexual harassment at work. The new ruling highlights who can qualify as a “supervisor” for the purposes of triggering employer liability in a sexual harassment case. The new ruling concluded that a foreman who handed out work assignments did qualify, and the woman he allegedly harassed was entitled to pursue her case.

The case involved Michelle, who, in 2011, obtained work as a substitute custodian with the Atlantic City schools. That meant that Michelle performed work on a “fill-in” basis but was not guaranteed a certain amount of work, or any assignments at all. Interested in increasing her volume of work, Michelle introduced herself to several custodial foremen. One foreman allegedly engaged in multiple acts of harassment. There was unwanted groping, invitations to the foreman’s office where the foreman was sitting unclothed, and promises of favorable work assignments in exchange for sex, according to the woman.

Allegedly fearing that her job was in jeopardy, Michelle had sex with the foreman once, but she consistently rejected his advances after that. Following her rejection of the foreman, the custodian believed that the foreman began treating her differently. She notified Human Resources, which investigated and concluded that the custodian did not suffer from sexual harassment or discrimination.

The custodian subsequently decided to pursue a federal case against the employer for sexual harassment, asserting claims under both federal law (Title VII) and state law (New Jersey Law Against Discrimination). Her case against the Board of Education centered upon the alleged sexual harassment perpetrated by the foreman and the alleged retaliation she suffered after she reported the harassment.

In a case in which you seek to hold your employer vicariously liable for the misconduct of an allegedly supervisory employee, you must prove to the court that this employee was acting in a supervisory capacity. The trial court judge in Michelle’s case ruled against her because, the court concluded, the foreman was not her supervisor.

The federal appeals court reversed that ruling and revived the custodian’s case. Michelle had enough proof to demonstrate that the harassment was because of sex and was sufficiently severe or pervasive to maintain a sexual harassment claim. That court, unlike the District Court, also agreed with the plaintiff that the foreman qualified as a supervisor. The foreman had the ability to affect how often the plaintiff worked, or if she worked at all. Since the foreman had this power when it came to scheduling, that made him someone who had the “power to direct” the plaintiff’s work.

In other cases, courts have ruled that scheduling managers lacked the level of authority and control needed to trigger employer liability. Michelle’s foreman, however, held a level of power and control that was something more than a mere scheduling manager. He was not simply allocating hours among a group of employees. This foreman had the ability to determine whether or not Michelle worked at all; he could effectively cut off her income simply by declining to give her any assignments. That made his degree of control over her work sufficient to allow the plaintiff to pursue a liability claim against the Board of Education.

If you’ve been sexually harassed at work, you should take action right away. The diligent New Jersey sexual harassment attorneys at Phillips & Associates are here and are ready to help you. Our team has been assisting workers with their legal needs in relation to sexual harassment for many years. Contact us online or at (609) 436-9087 today to set up a free and confidential consultation with one of our skilled and experienced attorneys to find out what we can do to meet your needs.

More blog posts:

Your Employer’s Anti-Sexual Harassment Policies and Your New Jersey Employment Litigation, New Jersey Employment Lawyer Blog, Sept. 6, 2017

New Jersey Township’s First Female Police Officer Receives $355,000 Sex Discrimination Award, New Jersey Employment Lawyer Blog, May 4, 2017

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