A federal district court in Louisiana recently heard a case in which a governmental entity tried to assert that it wasn’t liable as a joint employer of the individual who had accused it of discrimination and retaliation. Read on to learn why the court sided with the employee and allowed the claims to proceed to trial.
Police Sergeant Claims Sex Discrimination and Retaliation
Shandrell Privott began working for the New Orleans Police Department (NOPD) in 2002. In December 2019, the department assigned her to work as Transit Police Unit Commander for the New Orleans Regional Transit Authority (RTA). This assignment lasted until March 17, 2022, when the RTA asked the NOPD to terminate her assignment and replace her with someone else.
Privott filed a lawsuit against the RTA and the city of New Orleans in the U.S. District Court for the Eastern District of Louisiana, asserting claims under Title VII of the Civil Rights Act of 1964 and Louisiana state law for discrimination and retaliation. She alleged that during her assignment at the RTA, she was sexually harassed by her supervisor for months. She claimed that once she complained about the harassment, the RTA retaliated against her based on her sex by asking the NOPD to terminate her assignment.
Privott’s Employment Status with the RTA
A threshold issue in employment discrimination cases is, of course, whether the entity being sued actually employed the individual making the claim. While Privott was assigned to work at the RTA, her employer in the traditional sense was the NOPD.
In her lawsuit, however, Privott claimed the RTA was her “joint employer,” a term of art that means, in short, it controlled at least some of the terms and conditions of employment. The RTA responded that case law in the U.S. 5th Circuit Court of Appeals (whose rulings apply to all employers in Texas, Louisiana, and Mississippi) doesn’t permit joint employer liability against governmental entities like the RTA. Therefore, it asked the district court to dismiss her claims.
Court Allows Claim to Proceed
The court sidestepped the RTA’s joint employer defense and allowed Privott’s claims to proceed. It reasoned that, despite her allegations that the RTA was a “joint employer,” it should first determine whether she provided enough facts to show whether a direct employment relationship existed between the two. This, in turn, required an ultimate showing that the RTA had “the right to control the employee’s conduct.”
The court determined that Privott’s factual allegations about her relationship with the RTA satisfied this inquiry. For example, she alleged her RTA supervisor assigned her tasks and gave her day-to-day instructions. She alleged further that she reported to work at the RTA’s offices, used an RTA email account, and was issued an RTA vehicle. Finally, she pointed out that she was paid an hourly wage by the RTA and that the RTA was the entity that asked the NOPD to terminate her assignment. The court concluded these allegations, if proven, were sufficient to demonstrate the existence of a direct employment relationship between her and the RTA and, therefore, denied the RTA’s request to dismiss.
The court noted further that the case law the RTA relied on in asserting its defense was distinguishable in that none of the cases involved a “loaned out” employee like Privott. Rather, they primarily involved workers who were directly employed by governmental entities and were attempting to sue other governmental entities “up the administrative chain.” The court noted that the 5th Circuit’s intent in limiting joint employer liability in these circumstances was to prevent employees from suing “supervising or superior governmental entities that could not be considered [their] direct employer.” To the court, these motivations couldn’t justify insulating the RTA from liability given Privott’s allegations showing the existence of a direct employment relationship. Privott v. City of New Orleans, No. 23-1848, 2024 U.S. Dist. LEXIS 142700 (E.D. La. Aug. 12, 2024).
Takeaway
This case should serve as a cautionary tale for governmental employers attempting to make use of defenses to lawsuits based on joint employer liability. When a lawsuit contains allegations indicating the existence of a direct employment relationship between such an employer and a worker, this defense may not be available. The decision is also a reminder that employers who “borrow” or “lease” workers from other employers should follow the same personnel policies and procedures with such temporary and contingent employees as they do with their own permanent employees and the failure to do so could result in liability as a joint employer.
Connor H. Fields is an associate in the Jones Walker LLP labor and employment practice group in New Orleans, Louisiana. He can be reached at cfields@joneswalker.com.