Harassment, Training

Substitute Custodian Vying for Clean Sweep on Harassment, Retaliation Claims

A substitute school custodian said she was pressured to have sex with a foreman in exchange for more hours and then retaliated against for refusing his advances and lodging a sexual harassment complaint. This case demonstrates the importance of training employees and supervisors on sexual harassment prevention and on protocols for reporting harassment. 

What Happened

In November 2011, the Atlantic City Board of Education in New Jersey hired “Ruth” as a substitute custodian to fill in for full-time custodians. She was not guaranteed any work and, in fact, was rarely scheduled to work during the 2011–2012 school year.

After seeking advice from a school board member on how to attain more hours, Ruth introduced herself to about 10 custodial foremen at different schools. One of them, “Scott,” started regularly assigning Ruth to work at New York Avenue School.

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Toward the end of October 2012, Scott allegedly started making sexual comments to Ruth and offered her more hours in exchange for sexual favors. She described him as being “very touchy feely” and claimed that he would “grab [her] breasts or buttocks” at work.

In November 2012, Scott tried to take off Ruth’s shirt in his office and, on another occasion, was sitting naked on his office chair when he called her into his office. The following month, he grabbed her, pulled her toward him, and said, “[y]ou want more hours?”

Ruth interpreted a series of texts from Scott on December 27, 2012, to mean that he would help her secure a full-time contract at a different school if she accepted his sexual advances. He told her as much that night when he went to her house, grabbed her, and kissed her. Feeling that her job had been threatened, she acquiesced and had sex with him. After a few days, Ruth told Scott she would not have sex with him again.

Ruth received assignments to work at New York Avenue School on another day in December and on 7 days in January 2013, but she said Scott started treating her differently and then started giving hours to another female custodian instead.

On February 4, 2013, Ruth told the assistant superintendent that Scott had been sexually harassing her. The assistant superintendent took Ruth to Human Resources to file a written complaint. Scott denied the allegation. An outside investigator concluded that Ruth had not been harassed or discriminated against.

Ruth filed suit against the school board, alleging sexual harassment and retaliation in violation of Title VII of the Civil Rights Act and the New Jersey Law Against Discrimination. She argued that she had been retaliated against for complaining of harassment.

The district court ruled in favor of the school board, saying that Scott was not Ruth’s supervisor and, as a result, not liable for his actions. In addition, the court concluded that the school board was entitled to the Faragher-Ellerth affirmative defense since Ruth did not show that she suffered a tangible employment action and because the board took prompt action after receiving her complaint. Ruth appealed to the U.S. Court of Appeals for the 3rd Circuit, which covers Delaware, New Jersey, Pennsylvania, and the U.S. Virgin Islands.

What the Court Said

The appeals court vacated the decision and sent the case back to district court.

Ruth proved a prima facie case of retaliation because her filing of a written sexual harassment complaint was a protected activity and her working hours dropped significantly—and immediately—after she filed the complaint, the court noted.

On the harassment claim, the court majority said that Scott was Ruth’s supervisor and that the board may be liable for his conduct. The majority noted that Scott “had the authority to cause a significant change in … [Ruth’s] benefits by assigning her no hours, thereby eliminating her take-home pay”; the board conceded that Scott was working in a supervisory capacity when Ruth worked at New York Avenue School; there was no evidence of anyone else serving as her supervisor on the school’s premises; and since her “primary benefit from her employment was hourly compensation, and since … [Scott] controlled 70% of her hours, his decision to assign or withhold hours significantly affected her pay.”

The appeals court also said the school board may not be entitled to an affirmative defense because there is question as to whether Ruth suffered a tangible employment action.

A dissenting judge said the majority’s conclusion that Scott was a “supervisor” and its decision to allow Ruth’s hostile work environment claim to proceed “totally ignores, and is inconsistent with” a 2013 U.S. Supreme Court decision outlining a “clear and straightforward test for determining whether an employee ought to be considered a ‘supervisor’ for purposes of the employer’s vicarious liability for sexual harassment in the workplace under Title VII.”

Moody v. Atlantic City Board of Education (No. 16-4373) (U.S. Court of Appeals, 3rd Cir., 9/6/17)

Supervisors and managers should be trained on federal and state laws governing sexual harassment and retaliation, including ways to prevent sexual harassment and retaliation from occurring and how to report and address any related complaints. All employees should be familiar with your policy on sexual harassment and retaliation and should understand the protocol for reporting either. It’s a good idea to have employees sign a document acknowledging they have been trained on and understand those policies and reporting procedures.