Second Circuit Brings Clarity To Scope Of "Joint Employer" Theory In Discrimination Cases

• Published date: 25 April 2022
• Subject Matter: Employment and HR, Real Estate and Construction, Compliance, Discrimination, Disability & Sexual Harassment, Health & Safety, Construction & Planning
• Law Firm: Peckar & Abramson PC
• Author: Mr Kevin O'Connor, Aaron Schlesinger and Lauren Rayner Davis

This article was written for the ConsensusDocs newsletter and first appeared here

The "joint employer" doctrine has been used with increasing frequency by the plaintiffs' bar to broaden the scope of target defendants in discrimination cases beyond those who would be traditionally regarded as the employer. This is true even in the construction industry, which has seen a rise in cases where general contractors ("GC") or construction managers ("CM") are being targeted when discrimination is alleged on a construction project, even when the GC or CM is far removed from the underlying events and had no control over the employees in question.

Examples of this phenomenon are where a claim of harassment or discrimination originates in the lower tier ranks of subcontractors, or even where there is a claim involving an independent contractor on a project and a discrimination lawsuit ensues.

Until now, the Courts in the federal circuit which includes New York City (the Second Circuit) have been left to decipher a patchwork of case law to ascertain the scope and extent of joint employer liability in discrimination cases. In a move that is certainly welcomed by contractors, the Second Circuit Court of Appeals in Felder v. United States Tennis Association, et al., 19-1094, recently issued a comprehensive decision which provides a helpful summary of what must be pled and proven to broaden liability under the joint employer theory in discrimination cases. Felder provides a roadmap for risk mitigation by contractors looking to limit such claims in the future or to meet them head on when they do arise.

Background on the Joint Employer Theory

In order to assert a claim under Title VII of the Civil Rights Act, an employee must plead that an employee-employer relationship existed with the target defendant. Wimmer v. Suffolk Cty. Police Dep't, 176 F.3d 125, 136 (2d Cir. 1999)("It is inherent in the definition of a racially hostile work environment, however, that the person against whom the hostility is directed must be in an employment relationship with the employer.").

We often see that employees who bring discrimination claims will try to broaden the net of target defendants to include upstream contractors, such as GCs or CMs, even when the acts of discrimination took place in circumstances far removed from the top tier. A plaintiff might allege, in a summary fashion and without any supporting facts or allegations, that a broad group of defendants were all the employer, that the target CM or GC retained the authority to hire and fire the employee (or harasser), and that the employee was, therefore, "jointly employed" by both the employee's record employer (i.e., a subcontractor) and the GC or CM. It is often the case that plaintiffs will cobble together such claims by pointing to the language used in training materials, the existence of a workplace security badge with the target company's logo, Daily Workers...