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General contractor on hook for discrimination suit by subcontractor’s former employees




By Chase Fisher

The hostile worksite
This case arises out of a construction project for a new hospital facility in Memphis, Tennessee.  As part of the project, the general contractor subcontracted the operation of the buck hoist, a temporary elevator at the worksite, to a subcontractor that, in turn, hired three African-American workers to operate the hoist.  The African-American workers were targeted daily by other workers at the site, who made racist comments to them, drew racist pictures in the portable toilets and even threw liquid from a porta-potty at one of their faces, causing that worker’s eyes to swell.  Despite complaints by the African-American workers to the subcontractor’s owner, no actions were taken.  In fact, the owner simply passed along the complaints to the general contractor.

Following the porta-potty incident, the general contractor reacted by replacing all the subcontractor employees with its own employees; however, the hospital’s management reinstated the subcontractor, who brought back two of the African-American employees.  Shortly thereafter, one of the African-American employees was fired for using his phone at the worksite, while the other employee left when the general contractor stopped using the hoist.

In light of those events, the EEOC filed suit against the general contractor on behalf of the African-American workers, one of whom eventually joined the suit as a plaintiff as well.  The parties both filed for summary judgment over the issue of whether the general contractor could be considered a joint employer under Title VII, as the general contractor tried to shift blame to the subcontractor.

Who’s the boss?
While the district court ruled in favor of the general contractor holding it was not a joint employer, the Sixth Circuit Court of Appeals disagreed.  To determine if an employer is a joint employer, the court noted that it looks to an entity’s ability to hire, fire or discipline employees, affect their compensation and benefits, and direct and supervise their performance.

Here, the Sixth Circuit found that the general contractor exercised a large amount of such control over the subcontractor’s employees.  In particular, the general contractor directed the subcontractor’s employees’ daily responsibilities and assignments, set the employees’ hours, collected their time sheets, taught them how to operate the hoist, supervised their performance, handled complaints and required them to attend safety training.  In fact, the court noted that the subcontractor was, in reality, a ‘nonentity’ on the construction site.

Contractors should take note of this decision, as the degree and type of control exercised by the general contractor in this case is not uncommon.  While general contractors often seek to control as much of the project as possible to satisfactorily meet all deadlines, doing so may create exposure to liability for the wrongs committed by


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