A New Jersey employee believes she is being sexually harassed by a co-worker. When the harassing conduct is reported, a New Jersey employer now seeks to meet its legal obligation (and the mandate of its own internal policies) to investigate and, if necessary, discipline any wrongdoers, create a workplace milieu that is harassment-free, and ensure that no unlawful retaliation ensues.

An attorney counseling either the employee or employer described above will know to gather facts from the client to address the core, long-standing elements of a hostile work environment claim: (1) would the harassing conduct not have occurred but for the employee's gender, and (2) was it severe or pervasive enough to make a (3) reasonable woman believe that (4) the conditions of employment are altered and the working environment is hostile or abusive. Lehmann v. Toys 'R' Us,132 N.J. 587, 603-04 (1993). The facts needed to counsel your client will not differ whether this prospective plaintiff's claims are brought under the New Jersey Law Against Discrimination (LAD), N.J.S.A. §10:5-1 et seq., or Title VII of the Civil Rights Act of 1964, 42 U.S.C.S. §§2000e to 2000e-17.

Many federal and New Jersey state court opinions recite the general proposition that LAD and Title VII hostile work environment claims can be analyzed together. Moody v. Atlantic City Bd. of Educ., 870 F.3d 206, 213 n.9 (3d Cir. 2017) (“The New Jersey Supreme Court 'has frequently looked to federal precedent governing Title VII' to interpret and apply the NJLAD”), quoting Lehmann, 132 N.J. at 600. But can they really?

In determining employer liability for sexual harassment, it is necessary to determine the working relationship between the complainant and the alleged harasser. After all, “[e]xposed to a fellow employee's harassment, one can walk away or tell the offender to 'buzz off.' A supervisor's slings and arrows, however, are not so easily avoided.” Vance v. Ball State Univ., 133 S. Ct. 2434, 2456 (2013). A great, but perhaps narrowing, divergence is seen between LAD and Title VII claims with respect to the “fifth element” of a hostile work environment action; specifically, whether the alleged harasser is a “supervisor” and, if so, whether respondeat superior liability on part of the employer exists. Mandel v. M&Q Packaging Corp., 706 F.3d 157, 167 (3d Cir. 2013) (“The first four elements establish a hostile work environment, and the fifth element determines employer liability.”). Under the same set of facts, a New Jersey employer may be liable under the LAD to an employee who has been subjected to a hostile work environment, but not under Title VII.

When is a Supervisor not a 'Supervisor'?

New Jersey courts recognize that the U.S. Equal Employment Opportunity Commission (EEOC) is uniquely equipped to provide guidance to employers “in its role as the agency charged with the enforcement of Title VII.” Aguas v. State, 220 N.J. 494, 526 (2015). The EEOC in 2010 revised its published Enforcement Guidance on the topic “Vicarious Employer Liability for Unlawful Harassment by Supervisors.” http://www.eeoc.gov/eeoc/publications/index.cfm (last modified on March 29, 2010). The EEOC grouped into its definition of “supervisor” both those who are “inside” and “outside” of the “supervisory chain of command.” Those “inside” the chain of command have “the authority to undertake or recommend tangible employment decisions affecting the employee [or] to direct the employee's daily work activities.” An employee who does not have “actual authority over the employee” may nonetheless be recognized by the EEOC as a “supervisor” where he or she has “broad delegated powers” and “the ability to significantly influence employment decisions affecting” the harassed employee.

The United States Supreme Court in Vance narrowed the EEOC's definition of “supervisor” for Title VII claims. The court held that an employee is a “supervisor” if the employer has empowered that employee “to take tangible employment actions against the victim, i.e., to effect a 'significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.'” 133 S.Ct. at 2443. The Vance court “reject[ed] the nebulous definition of a 'supervisor' advocated in the EEOC Guidance,” id., because, among other reasons, “the vagueness of the EEOC's standard would impede the resolution of the issue before trial, possibly requiring the jury to be instructed on two very different paths of analysis[.]” Id. at 2438.

Two years after the Vance court rejected the EEOC's “more open-ended approach,” Vance, 133 S. Ct. at 2443, the New Jersey Supreme Court embraced it:

We decline to adopt the restrictive definition of “supervisor” prescribed by the Supreme Court majority in Vance. In light of our fact-specific approach to sexual harassment cases, … [w]e agree with the EEOC that the term “supervisor,” defined more expansively to include not only employees granted the authority to make tangible employment decisions, but also those placed in charge of the complainant's daily work activities, accurately reflects the two different settings envisioned by Restatement §219(2)(d).

Aguas, 220 N.J. at 528.

This divergence can leave an employer vicariously liable for the harassment by its employee under the LAD, but not under Title VII. This dynamic might have arisen recently in a Third Circuit decision focused on the definition of “supervisor,” but that court declined to discuss the differing standards for LAD and Title VII claims. Moody v. Atl. City Bd. of Educ., 870 F.3d 206 (3d Cir. 2017).

The Third Circuit's 'Moody' Decision

In 2012, Michelle Moody was employed as a substitute custodian for the Atlantic City Board of Education which oversaw 11 schools within the Atlantic City School District. Moody was paid on a per diem basis and not guaranteed work but, rather, was part of a pool of employees who could be called in at any one of the schools when the need arose. Moody v. Atl. City Bd. of Educ., 2016 U.S. Dist. LEXIS 171961.

Moody alleged specific acts of harassment — both hostile work environment and quid pro quo — by Maurice Marshall, a full-time custodial foreman at one of the 11 district schools. Marshall had no authority to hire staff or award contracts on behalf of the district, and no involvement in hiring full-time custodians. He was, however, responsible for scheduling substitute custodians (such as Moody) to work at his school, and while there he did direct the substitute's activities. Marshall assigned Moody over 70 percent of her hours from October 2012 through February 2013. Moody v. Atl. City Bd. of Educ., 870 F.3d 206, 217 (3d Cir. 2017).

Moody filed a four-count complaint against the Board in federal court in August 2014, alleging sexual harassment and retaliation under both the LAD and Title VII. Her harassment allegations developed through discovery included that Marshall grabbed her, tried to kiss her and remove her shirt, exposed himself to her, and offered her more hours and assistance in obtaining a full-time contract in exchange for sexual favors throughout late 2012 and early 2013. Moody, 2016 U.S. Dist. LEXIS 171961, *2-3.

The district court granted summary judgment in the Board's favor, concluding, inter alia, that Marshall was not Moody's “supervisor”: “Although Marshall was able to call Plaintiff into work at [his school] when needed, so were ten other maintenance forepersons, as well as the Board office. Marshall did not have authority to terminate Plaintiff or make any other personnel decisions.” Moody, 2016 U.S. Dist. LEXIS 171961 *17. The parties' briefing did not reference, and the district court's conclusion did not differentiate between, the dissimilar definitions of “supervisor” under Title VII and the LAD. It appears no argument was advanced that while Marshall might not fit the definition of “supervisor” under Title VII, he might under the LAD since he apparently was “placed in charge of the complainant's daily work activities” while she was at his school. See Aguas, 220 N.J. at 528.

On Sept. 6, 2017, a split Third Circuit reversed the grant of summary judgment, rejecting the district court's determination that Marshall was not Moody's “supervisor.” The majority and dissent analyses focused on the Vance line of cases, and neither opinion cited Aguas or discussed the more liberal definition of “supervisor” which might have applied to plaintiff's LAD claim.

The majority opinion in Moody, over a vigorous dissent, determined that Marshall was a “supervisor” under the Vance formulation because he was empowered to decide whether Moody worked on a given day, which impacted the essential benefit of her employment: compensation. Conceding that the 10 other custodial foremen for other district schools likewise could have called Moody into work, the majority noted that Vance does not limit a plaintiff to one supervisor, thus all 11 schools' custodial forepeople were potentially Moody's supervisors.

The majority emphasized that Vance supported its conclusion because Marshall “was not a mere scheduler, assigning hours among those who were in a pool of employees [but, rather,] controlled whether Moody worked at [his school] at all,” an “authority” that was neither “vague” nor “ill-defined.” Id. at 218 n.18, citing Vance, 133 S. Ct. at 2443. The dissent argued that labelling Marshall a “supervisor” was at odds with Justice Alito's Vance opinion, as none of the following questions could be answered affirmatively: “Could Marshall hire or fire Moody? Could Marshall promote or demote Moody? Could Marshall reassign Moody with significantly different responsibilities or make a decision that caused a significant change in her benefits?” Id. at 223 (Rendell, C.J., dissenting).

The lasting impact of Moody is a broadening definition of what causes a “significant change in benefits” to occur and, in turn, a less narrow classification of “supervisor” under Title VII. Some New Jersey employees, however, will still fit between the gaps in the varying Title VII and LAD definitions. For example, a foreman who directs another employee on a temporary basis, or perhaps with respect to one discreet project or assignment, might be a “supervisor” under the LAD, but not under Title VII if he or she does not evaluate the person and lacks authority to fire, promote or discipline the employee.

New Jersey employers would be wise to clarify the authorities empowered to its employees in relation to his or her peers. Gone are the days when “the power to hire or fire” is dispositive, as shifting workplace dynamics create new and unique questions. Desk audits, clear guidance from management and up-to-date job descriptions are useful in knowing who has the ability to significantly influence employment decisions, who is in charge of someone else's daily work activities, and who (in the legal sense) supervises who.

Bigosinski is a partner in the Labor and Employment practice group at McElroy, Deutsch, Mulvaney & Carpenter in Morristown.