The Third Circuit Court of Appeals last week issued a decision that arguably expands the potential liability of school districts for the misdeeds of supervisors.

The decision,  Moody v. Atlantic City Bd. of Educ., Dkt. No. 16-4373, (3d Cir. Sept. 6, 2017), appears to erode the bright-line test established by the United States Supreme Court in 2013, and appears to make it easier to impose liability against school districts for the inappropriate conduct of employees who are classified as supervisors.  The decision itself appears to address the generic definition of “supervisor” because it does not specifically address the definition codified at N.J.A.C. 6A:10-1.2.

In the decision, a substitute custodian claimed to be the victim of sexual harassment, beginning around 2012, at the hands of one of the district’s custodial foremen. According to the decision, the doctrine of respondeat superior is the legal rule under which an employer is held responsible for the misdeeds of an employee. Courts applying the doctrine have established that employers will be liable for an employee’s misconduct while acting within the scope of the employee’s duties, and have specifically determined that sexual harassment does not fall within the scope of any properly assigned duty. However, despite this limitation, the doctrine can be extended to include acts committed outside of an employee’s duties, if there was an agency relation between the employer and employee at the time of the wrongful conduct.

The Court’s majority determined that the custodial foreman was not a mere scheduler because he had the ability to determine whether the substitute worked at all. Therefore, because the foreman has the ability to assign work to employees, a “tangible employment benefit,” that ability established the fact that the custodian was actually the substitute’s supervisor.

Accordingly, the school district could be held liable under a theory of respondeat superior, so long as certain other facts could be proven. The majority then remanded the matter back to U.S. District Court for a full hearing on those other facts. Board members are advised to discuss this matter with the board attorney to ensure that existing policies and training programs are revised appropriately.