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Employment – Racial discrimination – employer

By: WISCONSIN LAW JOURNAL STAFF//March 10, 2015//

Employment – Racial discrimination – employer

By: WISCONSIN LAW JOURNAL STAFF//March 10, 2015//

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U.S. Court of Appeals  For the Seventh Circuit

Civil

Employment – Racial discrimination – employer

A contractor is not liable for racial discrimination, where it required a subcontractor not to use a disruptive employee on a particular job site.

“[T]wo problems arise with Love’s argument. First, the ‘discriminatory act,’ that Love complains of is—for Title VII purposes—his firing, which he claims is synonymous with his dismissal from the city hall project job site. However, in assessing Cullen’s level of control over Love, we determined that Cullen’s dismissal of Love from the city hall project was qualitatively different from the termination of Love’s employment relationship with UCI. In fact, we concluded above that, on the record before us, Cullen had no effect on Love’s continued employment with UCI, even if UCI happened not to have any jobs to which it could assign Love after his city hall project dismissal. Therefore, in assessing whether Cullen ‘directed the discriminatory act,’ we first question that Love’s dismissal from the city hall project can be properly characterized a ‘discriminatory act’ under Title VII.”   “Second, evidence that a de facto employer ‘directed the discriminatory act’ is not—without more—enough to establish a de facto employer–employee relationship under Title VII. In Tamayo v. Blagojevich, we considered whether the putative employer ‘directed the discriminatory act,’ but concluded that the de facto employer—the Illinois Department of Revenue (‘IDOR’)—exercised sufficient control over the plaintiff such that it was a proper defendant under Title VII. 526 F.3d at 1089. We cited to evidence in the plaintiff’s complaint alleging that IDOR controlled the plaintiff’s compensation, which was especially relevant given that the plain-tiff’s suit was based on an alleged gender-based disparity in pay. Here, while Cullen’s involvement in Love’s dismissal from the city hall project is certainly relevant to their relationship, it is not enough to overcome our analysis under the Knight factors, which shows that Cullen—in the aggregate—exercised very little control over Love in the course of their relationship. For these reasons, this final consideration does not alter our conclusion that Cullen exercised insufficient control over Love, and that Cullen is not liable as an indirect employer under Title VII.”

Affirmed.

13-3291 Love v. JP Cullen & Sons, Inc.

Appeal from the United States District Court for the Eastern District of Wisconsin, Joseph, Mag. J., Flaum, J.

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