?Takeaway: A company can potentially avoid being subject to federal employment laws by having contractors supply staff for events. However, the company should avoid dictating contractor staffing decisions or else the company may still face employment law scrutiny and possible liability.
?An employee of a security guard company who was denied credentials to work at the U.S. Open by the United States Tennis Association (USTA), allegedly based on his prior discrimination lawsuit, can renew his retaliation claim against the USTA, the 2nd U.S. Circuit Court of Appeals ruled.
The USTA contracts with security firms that employ and assign security guards to work at USTA events, most notably the U.S. Open Tennis Championships. From 2002 to 2009, the plaintiff, a Black man residing in New York City, worked as a security guard for CSC Security Services (CSC), a USTA contractor, to provide seasonal security work for the USTA.
In 2012, the plaintiff filed a lawsuit against CSC for refusal to hire under Title VII of the Civil Rights Act of 1964, 42 U.S.C §1981 and the New York City Human Rights Law. He alleged that CSC refused to hire him in 2010 after he complained during his employment at the 2009 U.S. Open that white security personnel were given better assignments than Black security personnel. The parties reached a settlement of the lawsuit in 2015.
In August 2016, AJ Squared Security (AJ Security), a contractor to CSC, hired the plaintiff as a security guard. The plaintiff’s supervisor assigned him to work as a temporary security guard at the U.S. Open. On Aug. 29, 2016, the plaintiff’s supervisor sent him to pick up his security credentials from the USTA.
When he went to pick up his credentials, a USTA representative told him that his name was not in the system. The plaintiff called his supervisor, who allegedly told him that the USTA denied his credentials as retaliation for his earlier employment discrimination complaint against and settlement with CSC.
The plaintiff filed charges of discrimination against the USTA with the Equal Employment Opportunity Commission (EEOC) and the New York State Division of Human Rights (NYSDHR). The EEOC and NYSDHR dismissed the complaint because the USTA did not directly employ the plaintiff.
The plaintiff then filed a federal lawsuit claiming discrimination and retaliation against the USTA under Title VII and 42 U.S.C §1981, along with other claims. The USTA moved for judgment on the pleadings on the grounds that he did not apply for a position at the USTA and the USTA was not his employer.
The district court granted the motion for judgment on this basis, and the plaintiff appealed.
On appeal, a 2nd Circuit panel considered whether the plaintiff adequately alleged that the USTA was his joint employer and was therefore subject to Title VII’s prohibitions on discrimination and retaliation.
The 2nd Circuit determined that a company can be liable under Title VII as a joint employer for rejecting the temporary assignment of a contractor’s employee only if the entity would have been the employee’s joint employer had it accepted his assignment. Thus, to determine whether the plaintiff had a Title VII retaliation claim, the district court would have to consider what sort of arrangement would have existed if the USTA had allowed him to work at the U.S. Open.
When he filed the complaint, the plaintiff was not represented by a lawyer, and his description of the arrangement between the USTA and his employer, AJ Security, did not plausibly support joint employment status. However, the plaintiff had a lawyer when he filed his appeal, and the lawyer made arguments that suggested that the complaint could be expanded to support a claim of joint employment status.
Thus, the 2nd Circuit upheld the dismissal of the plaintiff’s discrimination claims against the USTA under Title VII and 42 U.S.C § 1981, but granted the plaintiff leave to replead the Title VII retaliation claim. The plaintiff and his lawyer could thus rewrite his complaint against the USTA to try to show retaliation by the USTA as a joint employer.
Felder v. United States Tennis Association, 2nd Cir., No. 19-1094 (March 7, 2022).
Jeffrey Rhodes is an attorney with McInroy, Rigby & Rhodes LLP in Arlington, Va.