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Court Adopts Title VII ‘Joint Employment Doctrine’

Although plaintiff was assigned to work in defendant’s automotive factory by the temporary staffing agency that employed her, both employers are potentially liable to plaintiff for sexual harassment under Title VII; summary judgment for the automotive employer is reversed.

Although the district court acknowledged that in some instances an employee can have multiple “employers” for Title VII purposes, it concluded in this case that the staffing agency was plaintiff’s sole employer. Like the district court and several of our sister circuits, we agree that Title VII provides for joint employer liability. We further conclude that the “hybrid” test, which considers both the common law of agency and the economic realities of employment, is the correct means to apply the joint employment doctrine to the facts of a case. The district court did not explicitly use the “hybrid” test in its opinion. We articulate the hybrid test for the joint employment context and apply it to the facts of this case, concluding that the automotive company was indeed plaintiff’s employer. We reverse and remand for consideration of plaintiff’s Title VII claims on the merits.

Appellant Brenda Butler was hired by ResourceMFG, a temporary employment agency, to work at Drive Automotive Industries. Each employer exercised control over various aspects of plaintiff’s employment. Plaintiff claims that one of her Drive supervisors verbally and physically harassed her throughout her time at Drive, frequently making vulgar comments about the size of her bottom and also rubbing his crotch against her buttocks. She reported his conduct to the agency’s on-site representative and to the alleged harasser’s supervisor at Drive. She alleges neither took any action to curb the harassment. At one point, the Drive supervisor directed her to work on a particular machine, she refused, saying she was tired from working overtime the night before. She alleged he swore at her and told her to go home. A few days later, she alleged, the supervisor called her and implied he could save her job if she performed sexual favors for him. She refused. The supervisor from the agency called to tell her she had been terminated from Drive.

Joint liability

Although this circuit has never expressly adopted the joint employment doctrine in the Title VII context, district courts in this circuit have frequently applied it. Many of our sister circuits, moreover, have considered the possibility that multiple entities could be employers of a plaintiff and adopted the joint employment doctrine. We now hold that the joint employment doctrine is the law of the circuit.

Courts have formulated at least three tests that could be used in the joint employment context: the economic realities test, the control test and the hybrid test. We find the district court conducted an inappropriate analysis under our articulation of the joint employment doctrine today.
Drive contends for the “control” test while plaintiff argues that the economic realities test applies. We conclude the hybrid test best captures the fact-specific nature of Title VII cases, such as the one before us. That test correctly bridges the control test and the economic realities test. We adopt the hybrid test.

Here, although the agency disbursed plaintiff’s paychecks, officially terminated her and handled employee discipline, it did not prevent Drive from having a substantial degree of control over the circumstances of plaintiff’s employment. We reverse the district court and hold, as a matter of law, that Drive and ResourceMFG are plaintiff’s joint employers.

Butler v. Drive Automotive Industries of America Inc. (Floyd) No. 14-1348, July 15, 2015; USDC at Greenville, S.C. (Austin) Jeffrey P. Dunlaevy for appellant; Stephanie E. Lewis for appellee. VLW 015-2-130, 27 pp.

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