Wednesday, May 9, 2018

Bolin v. GM: When is a joint employer liable for a co-employer's discriminatory conduct?

Judge Laurie Michelson's decision in Bolin v. General Motors, No. 16-13686 (E.D. Mich. May 4, 2018), is a helpful illustration of joint employer liability under federal EEO law. In this case, the plaintiffs alleged that the UAW-GM Center for Human Resources could be held liable under the Age Discrimination in Employment Act for the decision by the UAW VP to terminate the plaintiffs' assignment to the CHR, which was jointly created by GM and UAW. CHR contended that the plaintiffs had failed to allege that it was involved in the decision to terminate their assignments to CHR, and the plaintiffs responded that they had sufficiently alleged that CHR, along with GM and UAW, jointly employed them. As noted by Judge Michelson, neither side's argument was exactly correct.

Contrary to the plaintiffs' contention, a joint employer is not vicariously liable for the acts of a co-employer. Joint employer status merely refers to the relationships that multiple entities have with respect to the employees that they jointly employ, not to the relationships that the entities have with one another. Thus, joint employers are only liable for their own actions.

Contrary to CHR's contention, however, a joint employer can be liable for failing to act reasonably to respond to discriminatory conduct by a third pary that it knows or should have known about. In the same vein, an employer can be liable, for example, for failing to act reasonably to respond to sexual harassment by non-supervisory employees or even by non-employees when it knows or should know about the harassment.

One issue where I part ways with Judge Michelson is her suggestion that knowledge of the VP's decision to remove the plaintiffs from CHR could be imputed to that organization because she was a member of its Executive Committee. Considering agency principles, I'm skeptical that the VP's knowledge of her own alleged wrongdoing on behalf of UAW can be imputed to CHR. Consider that a supervisor's knowledge of his own wrongdoing is generally not imputed to an employer. This is for the simple reason that an employee cannot reasonably be expected to report conduct that it is against his own interest to report. Otherwise, an employer would always be strictly liable for supervisor harassment. Similarly, even if the VP had official roles with both UAW and CHR, she should not have been expected to tattle on herself by reporting to CHR wrongdoing she engaged in on behalf of UAW.

This blog reflects the views solely of its author. It is not intended, and should not be regarded, as legal advice on how to analyze any particular set of facts.