The Third Circuit determines that a retailer could be subject to liability under Title VII based upon discrimination claims asserted by a temporary worker assigned by a staffing agency.
The Third Circuit vacated summary judgment in favor of a retailer on a plaintiff’s claims of discrimination during the plaintiff’s assignment through a staffing agency at the store. In determining that the plaintiff could proceed to trial on his allegation that the retailer was a “joint employer” for purposes of the anti-discrimination laws, the Third Circuit analyzed the factors previously set forth by the United States Supreme Court in Nationwide Mutual Insurance Company v. Darden. In so holding, the Third Circuit found that, although the retailer paid the staffing agency (and not the plaintiff) directly, “[t]hose payments were functionally indistinguishable from direct employee compensation,” because the retailer paid the staffing agency for each hour worked by the plaintiff. In addition, the Third Circuit noted that, while the staffing agency had the authority to hire the plaintiff and assign him to certain locations, the retailer nonetheless had “[u]ltimate control over whether [plaintiff] was permitted to work at its store.” Similarly, the Third Circuit further reasoned that the retailer’s control over the plaintiff’s daily activities, along with testimony that the temporary employees did many of the same things as “regular employees,” “overwhelmingly favors plaintiff.”
This opinion makes clear that employers must observe and remediate any actions toward anyone that could be perceived as discriminatory, including actions toward staffing employees or customers. Otherwise, plaintiffs’ attorneys will use this as an opportunity to further expand the contours of “joint employers” under the law.
Case Law Alerts, 1st Quarter, January 2016
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