Sixth Circuit Holds General Contractor Can Be Liable in Discrimination Suit Brought by Sub-Contractor's Employees

by Baker Donelson

The Sixth Circuit Court of Appeals recently reversed a district court's ruling granting summary judgment to a general contractor on the question of whether it could be held liable to its sub-contractor's employees as a joint employer under Title VII. The Court held that, in light of the significant control exerted by the general contractor over the sub-contractor's employees, it was their de facto employer and could be liable as a joint employer.

The case involves a general contractor, Skanska USA Building, Inc. (Skanska), hired to oversee the construction of a new hospital facility in Memphis, Tennessee. Skanska hired C-1, Inc. (C-1) as a subcontractor to provide operators for the construction site's temporary elevators. C-1 in turn hired several operators, including African-American Maurice Knox. During his employment as an operator, Knox alleges that he and the other African-American operators employed by C-1 experienced rampant harassment and discrimination in the form of racial slurs and racist graffiti painted in portable toilets at the job site. In addition, Knox alleges that liquid from a portable toilet was thrown at his arms and eyes, causing them to swell. One of Knox's co-operators repeatedly complained to C-1's owner about the harassment, but was told to take the complaints to Skanska management instead.

Following the toilet incident, Knox complained to a Skanska executive, who soon after removed all C-1 personnel from the construction site. After C-1's owner appealed the removal, Knox and other C-1 operators were allowed to return to the site. Knox contends that the harassment continued after his return. Ultimately, Knox was removed from the site for using his cell phone while on the job.

Thereafter, the EEOC filed suit against Skanska on behalf of Knox and the other operators, alleging racial discrimination and retaliation in violation of Title VII and 42 U.S.C. §1981. Knox later intervened as a plaintiff as well. Both parties moved for summary judgment on the question of whether Skanska could be held liable as a joint employer under Title VII. The district court granted summary judgment to Skanska. On appeal, the Sixth Circuit reversed, finding there was a genuine issue of material fact as to whether Skanska could be a joint employer in light of the circumstances of the case.

First, without any underlying analysis, the court ruled that the joint employer theory was applicable to Title VII, despite the fact that the Sixth Circuit had not previously ruled definitively on that issue. Next, the court examined the extent to which Skanska exercised control over the C-1 operators. Despite the language of the contract between Skanska and C-1, which provided that C-1's owner was responsible for supervising the operators, in practice Skanska exercised nearly complete control over them. As the Court explained:

Skanska supervised and controlled the operators' day-to-day activities without any oversight from [C-1's owner]. As a general matter, Skanska routinely exercised its ability to direct and supervise the operators' performance. Skanska set the operators' hours and daily assignments. Skanska assigned the operators' supervisors. When the operators complained about the conditions on site, Skanska handled their complaint. When the operators had disagreements with their supervisors, Skanska arranged a meeting to discuss the situation.

Accordingly, the Court held: "C-1 was a nonentity on the construction site[; t]hat the terms of C-1's contract with Skanska envisioned a more active role for C-1 is beside the point." As such, there was a genuine issue of material fact as to whether Skanska was a joint employer.

The case, EEOC v. Skanska USA Building, Inc., should be read as a warning to general contractors in particular and the construction industry generally, where contractor relationships such as this one are common.  Notwithstanding contractual language to the contrary, if the reality of a relationship between a general contractor and subcontractor implies joint employment, liability may be incurred.

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.

© Baker Donelson | Attorney Advertising

Written by:

Baker Donelson

Baker Donelson on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at:

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.