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Liability Created Via Supervisor Responsible for Scheduling

The Third Circuit Court of Appeals recently expanded the definition of who may qualify as a supervisor when determining an employer’s liability.

Michelle Moody was a substitute custodian in the Atlantic City school district. The custodial foreman at New York Avenue School allegedly made sexual comments to Ms. Moody. He told her that he would give her more hours in exchange for sexual favors. On various occasions: he grabbed her, tried to remove her shirt, exposed himself, propositioned her, sent her sexually explicit texts, and ultimately lured her into an unwanted sexual encounter in exchange for full-time work. She told him it would never happen again and then she found out that her hours had been cut. She reported the harassment; two investigations were conducted with no substantiation of her complaints.

Before the Third Circuit was the question whether the school board was liable for the sexual harassment. At the time of the asserted harassment, the foreman had the “authority to assign work” which was determined to be a “tangible employment action” because it directly impacted her ability to earn an income. In fact, he controlled whether she worked for that school at all. He was alleged to have used that power when she rebuffed his advances. As a “decision causing a significant change in benefits,” he could be considered a supervisor and the school district would be liable for his actions.