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Can I Sue The General Contractor For Race Discrimination If I Work For A Subcontractor? I Need A Lawyer!

| Dec 18, 2014 | Employment Discrimination, Race Discrimination, Wrongful Termination |

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Despite the age-old saying that you cannot serve two masters, at many modern job sites employees are asked do just that. It is often difficult to determine who an employee actually works for, even, sometimes, for the employees themselves. What happens when an employee is racially discriminated against while nominally in the employ of one company but, in actuality, under the control of a second company?

The Sixth Circuit Court of Appeals (Ohio) has answered this race discrimination question in Knox v. Skanska USA Building, Inc. The court followed the lead of other federal courts in extending the “joint employer” doctrine to Title VII of the Civil Rights Act of 1964 discrimination claims. In the case, a general contractor, Skanska, subcontracted with another company, C-1, to provide hoist operators for a hospital construction project. The subcontractor hired a number of African-Americans to work on the project. Unfortunately, these Black workers were subjected to racial slurs, racist graffiti at the job site, and even physical altercations. After complaining about the racially hostile work environment, one of the African-American employees was terminated. The employee sued the general contractor for permitting a hostile work environment and for retaliatory wrongful termination. The general contractor defended by asserting that the hoist operators were never its employees but, rather, the employees of the subcontractor.

Do I have a claim for wrongful termination? To find out what your employment discrimination rights are, schedule a free consultation with the Ohio race discrimination lawyer at The Spitz Law Firm.

On appeal, the Sixth Circuit Court of Appeals held that under the “joint employer” doctrine an employee of a subcontractor may bring a Title VII discrimination claim against a general contractor. A determination of whether a “joint employer” relationship exists requires a fact sensitive inquiry. Among the factors that a court will look at are: who has the authority to hire, fire, or discipline an employee; who controls the compensation; and, most importantly, who holds the power to direct or otherwise control the employee’s work.

In the case, the contract between the two companies stipulated that the subcontractor was to be responsible for hiring and supervising the work of the hoist operators, and that the general contractor could only fire the hoist operators if they did shoddy work.  In theory, the hoist operators were the employees of the subcontractor and the subcontractor alone. In practice, though, the general contractor was very much an employer of the hoist operators. The general contractor “suggested” to the subcontractor what the hoist operators should be paid. The general contractor set the hoist operators schedules and showed them how to operate the hoists. The general contractor even maintained a workers’ compensation insurance policy covering the hoist operators. The Court explained further:

In reality, however, C-1 had minimal oversight over the operators. Their daily responsibilities and assignments were “directed by Skanska.” Skanska set their hours, collected their time sheets, taught them how to use the buck hoist, and required them to attend safety training. Moreover, contrary to the terms of its contract with Skanska, C-1 did not employ anyone to supervise the operators on-site. Instead, Skanska employees supervised them. Skanska eventually assigned another subcontractor’s employee, Bernie Smith, to supervise the operators. At the suggestion of a Skanska employee, Smith kept detailed notes regarding the operators’ job performance.

Neely came to the site only a few times. Skanska did not tell Neely “anything that [went] on with the buck hoist[,]” and one of the operators had to call Neely on his cell phone whenever a buck hoist broke. Skanska also carried workers’ compensation and liability insurance for C-1’s employees.

When Skanska removed an operator from the job site, C-1 generally fired the worker without requiring Skanska to provide an explanation for the removal. Several months into the contract, Skanska asked C-1 to replace Samuel Burt and another employee because of “personality issues.” Neely replaced these workers without being “clear . . . what the exact issues and/or problems were.” Removal from the site typically ended an operator’s employment with C-1, because C-1’s contracts with its laborers were job-specific.

Applying the “joint employer” test to these facts, the court found that there was sufficient evidence that the contractor and subcontractor jointly employed the hoist operators and, thus, that the terminated hoist operator could bring claims of racial harassment and retaliatory termination against the general contractor.

If your boss or manager is discriminating against you because your race, then call the right attorney. Race discrimination includes being harassed, fired, wrongfully terminated, discriminated against, demoted, wrongfully disciplined, and denied wages. When you call the right attorney to schedule a free and confidential consultation at (216) 291-4744, you will meet with a race discrimination lawyer from The Spitz Law Firm who will help you determine the best way to pursue your legal claims.

Disclaimer:

The materials available at the top of this race discrimination page and on this employment law website are for informational purposes only and not for the purpose of providing legal advice. If you are still asking: “What should I do …”, “I’m being discriminated against because I’m Black”, “my boss is discriminating against me because I’m African American” or “How do I …”, your best option is to contact an Ohio attorney to obtain advice with respect to race discrimination questions or any particular employment law issue. Use and access to this employment law website or any of the links contained within the site do not create an attorney-client relationship. The legal opinions expressed at or through this site are the opinions of the individual lawyer and may not reflect the opinions of The Spitz Law Firm, attorney Brian Spitz, or any individual attorney.