On December 10, 2013, the Sixth Circuit formally adopted a new theory plaintiffs can use to hold entities liable under Title VII. In EEOC, et. al., v. Skanska USA Building, Inc., 2013 FED App. 1021N (6th Cir.), the Sixth Circuit found that Skanska, a general contractor, was liable under Title VII though Skanska did not employ the filing employees. Skanska was a general contractor and managed the construction of a new hospital facility. Skanska subcontracted with C-1 to provide operators for the construction site’s “buck hoists” (temporary elevators that operate on the outside of buildings under construction).

C-1 hired three African-American employees, among others, to operate as buck hoisters for Skanska. During their tenure, the African-American employees were subjected to racial epithets both verbally and graphically as violent and racially charged depictions were drawn in graffiti on portable toilets. There was also an incident during which liquid from a porta-potty was thrown on one of the employee’s skin and eyes. The Skanska managers did not take action when complaints were made to them. By way of termination and discontinuation of the job, the African-Americans stopped working for Skanska. The EEOC filed a race-based hostile work environment suit against Skanska. The district court granted the defendant’s motion for summary judgment holding that Skanska was not the employees’ employer.

The Sixth Circuit reversed that decision and found Skanska liable under a Joint Employer theory. Entities are joint employers if they share or co-determine those matters governing essential terms and conditions of employment. The court found instances evidencing the requisite control: Skanska handled internal conflict among employees; Skanska carried worker’s compensation and liability insurance; C-1 generally fired the worker without explanation when Skanska removed an operator from the jobsite; and employees were told numerous times that they represented Skanska. The Sixth Circuit reversed and remanded the case for further proceedings.

The Sixth Circuit like other circuits (Third Circuit, Ninth Circuit, and the Eleventh Circuit) allows a theory of liability to be brought to Joint Employers for Title VII cases. Thus, employers are not able to simply avoid liability from Title VII claims merely because they do not hire and fire employees.