General Contractor May Be Held Liable For Discrimination & Retaliation as a Joint Employer

Recently, the United States Court Of Appeals For The Sixth Circuit issued its decision in the EEOC v. Skanska USA Building, Inc., reversing the District Court’s granting of summary judgment in favor of the Defendant. This case addresses the issue of “joint employers”.

In this case, the EEOC sued Skanska USA Building, Inc. (“Skanska”), the general contractor for a construction site in Memphis, on behalf of Maurice Knox. A Skanska subcontractor hired Plaintiff, an African-American, and several other African-American men to operate a temporary elevator at the construction site. Plaintiff was not hired directly by Skanska but the EEOC argued in its complaint that Skanska acted as the subcontractor’s joint employer and therefore should liable. The District Court did not find that Skanska acted as a joint employer and granted summary judgment in favor of the Defendant.

In its decision, the Appellate Court explained that from 2007 to 2010, Skanska supervised the construction of new hospital in Memphis and coordinated the work of their subcontractors. One of the subcontractor, C-1, Inc., hired Plaintiff and two other African-American men to work on the site. Skanska agreed with C-1’s manager, Gerald Neely, that they would be paid $18 an hour and in turn, at Skanska’s suggestion, C-1 paid its workers $9 an hour. Under the contract signed between Skanska and C-1, Skanska could terminate a subcontractor’s employee if he or she was “incompetent, disorderly, or otherwise unsatisfactory”. Therefore, C-1 had only minimal control over its workers. After several months of work, Skanska asked C-1 to remove two employees because of “personality issues”, which led C-1 to terminate those employees without questioning or inquiring about the motives behind Skanska’s decision. After starting working on the construction site, Mr. Knox was subjected to racist slurs from other workers and was called a “monkey” and “n—–“. Plaintiff also saw racist graffiti in the bathroom. Mr. Knox complained repeatedly to Skanska’s managers about the racially charged work environment but no action undertaken by the managers to remedy the situation. Later on, Mr. Knox was the victim of another incident where his co-workers threw liquid from a porta-potty onto his arms and into his eyes, which led him to have an altercation with another co-worker, who ultimately admitted to using racial slurs towards Plaintiff. Following this incident, all C-1 employees were replaced with Skanska employees.

The EEOC sued Skanska for subjecting Plaintiff and other two workers to racial discrimination and a hostile work environment in violation of Title VII. The EEOC’s complaint also alleges that Skanska retaliated against Plaintiff and the other workers for complaining about the harassment they were subjected to, in violation of Title VII. The Appellate Court determined that Skanska and C-1 were joint employers because Skanska “supervised and controlled the operators’ day-to-day activities without any oversight from Neely” and “Skanska routinely exercised its ability to direct and supervise the operators’ performance.” Besides, the Court also highlighted that Skanska was the one to handle the employees’ complaints about racial slurs. The Court went on to state that: “the reality is that C-1 was a nonentity on the construction site” and that “viewed in the light most favorable to the plaintiffs, the record here is enough to support a determination Skanska jointly employed the operators.”

If you are and employee and you believe you were victim of employment discrimination based on your race and/or were retaliated against please contact the Harman Firm, P.C.