Customer That Asks a Contractor to Send Another Employee Who Can Speak Clearer English May Become the Sole “Employer” Liable for Title VII National Origin Discrimination

by Sherman & Howard L.L.C.

[author: Ted Olsen]

The U.S. District Court for the District of Colorado has recently issued surprising case decisions, ruling that parties other than the direct employer of a plaintiff may be liable for discrimination.  One of the decisions is Dafiah v. Guardsmark, LLC.[1] (See also "Sister Companies May Be a ‘Single Employer' Under Title VII" below).  In Dafiah, two foreign-born guards employed by a security service were discharged when a customer asked that other guards be assigned in their place, because their foreign accents made them difficult to understand.   The security service assigned replacements, but because it had no other vacant posts, it terminated the plaintiffs' employment.  Not only did the Court rule that the customer, as the joint employer of the plaintiffs, might be liable for national origin discrimination, it ruled that the security service was not liable for discrimination!

The guards were supposed to secure the customer's premises, check in visitors, and respond to emergencies.  The customer expressed concern that, in the event of an emergency, a 911 operator would not be able to understand them.  (Although their first languages were Arabic and Amharic, they both spoke English.)

In the lawsuit against both the security service and the customer, the Court said there was no doubt the two companies were not a "single employer" or integrated enterprise.  They were independent, had separate ownership and financial control, different management personnel, different workforces, and different employment policies.  The customer had no duty to supervise or pay the guards; these were the responsibilities of the security service. 

But the plaintiffs were successful arguing that the security service and its customer might be "joint employers."  The Court's conclusion was based almost entirely on the simple fact that the customer had the right to reject any security service employee on its site.  (Obviously, the customer did not make the decision that the security service dismiss the guards after they were removed from the customer's site.)  If this is a sufficient basis to make the customer a "joint employer," then various customers throughout the nation are joint employers, along with the contractors and vendors that send their employees to the customers' premises.

To make matters worse, the Court then ruled as a matter of law that the security service was not liable for national origin discrimination, because its dismissal of the plaintiffs was due to the directives of the customer!  Therefore, the customer may be found to be a "joint employer" with the plaintiffs' primary employer, and yet, be held liable while the primary employer is not.

[1] Dafiah v. Guardsmark, LLC, Case No. 10-cv-03119-RBJ-MJW (D. Colo. Oct. 19, 2012).


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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