On March 9, 2015, the 7th Circuit affirmed summary judgment in favor of a general contractor defendant on the basis that the plaintiff, who was employed by its subcontractor, failed to demonstrate that the general contractor was his indirect employer for purposes of Title VII liability. Love v. JP Cullen & Sons, No. 13-3291 (7th Cir., 3-9-2015). The plaintiff brought a Title VII action alleging that his dismissal from a construction job site was racially motivated. Since the general contractor was not his direct employer, the plaintiff was required to show that the general contractor could still be held liable under Title VII as an indirect employer. Under Title VII, it is unlawful for an employer to discharge or otherwise discriminate against any individual because of the individual’s race, color, religion, sex or national origin. An employer is defined under Title VII as a person engaged in an industry affecting commerce who has fifteen or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year, and any agent of such a person.
In order to bring a Title VII claim against a company, the plaintiff must establish the existence of an employer-employee relationship. However, a plaintiff may have more than one employer for purposes of Title VII liability; and a plaintiff may bring a claim against a defendant who is not his or her direct employer. Whether a defendant is an indirect employer of a plaintiff under Title VII depends upon the level of control that it may exercise over the plaintiff in the workplace. There is a five-factor test relevant to an employer-employee relationship: (1) the extent of the employer’s control and supervision over the employee; (2) the type of occupation and skill required; (3) the employer’s responsibility for the costs of the operation; (4) the method and form of compensation and benefits; and (5) the length of the commitment. There is also an economic realities test that considers the amount of control exerted by the indirect employer as well as the economic realities of the employment relationship. In addition, an entity other than the direct employer may be considered an employer under Title VII if it directed the discriminatory act, practice or policy at issue. The 7th Circuit concluded that the general contractor exercised insufficient control over the plaintiff and, therefore, is not liable as an indirect employer under Title VII.