Executive Summary: On March 7, 2022, a sharply divided panel of the Second Circuit (covering New York, Connecticut, and Vermont) addressed the question of what a Title VII plaintiff must claim to adequately plead the existence of an employer-employee relationship under the joint employer doctrine. See Felder v. United States Tennis Association (2d Cir. 2022). Generally, a company is only liable for discrimination against employees and applicants for employment; however, if a company does not directly employ a person, it may be liable as a joint employer. Felder is the first time the Second Circuit has confronted the question of what factors must be alleged to adequately plead a joint-employment relationship. Over a vigorous dissent, the court joined its sister circuits and concluded that non-exhaustive factors drawn from the common law of agency, including control over an employee’s hiring, firing, training, promotion, discipline, supervision, and handling of records, insurance, and payroll, are relevant to this inquiry.
In so holding, the court affirmed the lower court’s dismissal of the plaintiff’s Title VII claim against one defendant because he failed to allege that the entity would have exercised significant control over the terms of his employment by, among other things, training, supervising, and issuing his paychecks.
The Case
Plaintiff Sean Felder sued the United States Tennis Association (USTA) for race discrimination under Title VII. Over the course of several...
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