There is tremendous overlap in law and legal theory between employer discrimination and harassment, and civil rights violations by law enforcement and corrections personnel. Both draw upon the law of agency, vicarious liability and respondeat superior.

Intentional Misconduct by Employees

Respondeat Superior

The role of agency is critically important in cases where an employee has intentionally engaged in wrongful or even employer prohibited conduct. Respondeat superior is not particularly helpful in cases of intentional wrongful behavior. The employer will argue, successfully in most cases, that the employee was engaged in unlawful or prohibited conduct so by definition the employee was not acting on behalf of the employer.

Agency

Agency is pretty broad in its scope of application. Agency at its simplest means that an employee, staff, contractor… acted on behalf of the principal. The principal for our purposes is the employer. Again, an employer would make the same arguments as in respondeat superior. However, agency has been expanded greatly in the areas of Title VII and civil rights, at least in New Mexico. This is accomplished through the theory of aided-in-agency.

Aided-In-Agency

With aided-in-agency theory, an employer can be held liable for employee behavior even if “outside scope of employment”. Aided-in-agency is so important in civil rights claims, Title VII and §1983 in particular. Without this theory, employers could simply say the worker’s violation of rules or laws (civil or criminal) was prohibited and the employer had nothing to do with it. That is exactly what employers, whether jails, prisons, law enforcement, or private employers, invariably do.

Aided-in-agency says not so fast, but for the relationship with the employer, the victim could have avoided the wrongful conduct. In Title VII and §1983 cases, this is far from true. The victims in these cases are largely defenseless. The position and authority of the perpetrator of harm alone allows for misconduct (typically ongoing) against the victim. The victim has no realistic way of avoiding the harm again as with prisoner to jail, citizen to law enforcement, or employee to supervisor and employer.

Even Criminal Acts Governed by Aided-In-Agency

The most shocking cases of abuse involve prisons, jails and law enforcement, where the badge is used for sexual assault of what amounts to a captive victim. Naturally, the city, county or state entity will scream “not my fault”.

This will fall on deaf ears in New Mexico and in the 10th Circuit which has adopted aided-in-agency at least as regards cases arising in New Mexico. The United States Supreme Court has adopted it in cases of Title VII discrimination (and harassment) claims. In each, the employer is held responsible for the wrongful, even criminal, conduct of its employees. In Title VII cases, the theory has extended only to supervisors but not mere co-workers. Worse, “supervisor” is restrictively defined but this is a topic for a more in-depth conversation.

Many of the cases have involved private employers and prison corrections contractors. In cases of governmental entities contracting out law enforcement and corrections to private companies, it remains to be seen if the governmental entities themselves can also be held liable under aided-in-agency for the behavior of these companies and their employees.

Seek Legal Guidance

As one might expect, these cases can be quite complicated due to the layers of misconduct, responsibility and liability of the various actors. In addition, there are numerous rules and deadlines associated with civil rights claims of every sort. It is important to understand and fully abide by these rules and deadlines to avoid jeopardizing your rights.

Collins & Collins, P.C. can be reached at (505) 242-5958 .