Monday, May 17, 2004
Ninth Circuit En Banc Panel Will Rehear Claim of Sex Harassment Against Hiring Hall Operator
By David Watson, Staff Writer
An en banc panel of the Ninth U.S. Circuit Court of Appeals will revisit the issue of whether a longshore worker can maintain a sexual harassment suit against an employer group which, along with a union, operates a hiring hall, the court said Friday.
In a brief order, Chief Judge Mary M. Schroeder said a majority of the court’s active judges had voted to reconsider the result reached by a three-judge panel in November. That panel ruled that U.S. District Judge Helen J. Frye of the District of Oregon should have dismissed the suit since the non-profit Pacific Maritime Association was not the woman’s employer.
The plaintiff, Teresa Jones, was permitted to intervene after the Equal Employment Opportunity Commission sued PMA, Marine Terminals Corporation, and Local 8 of the International Longshore Workers Union claiming she had been subjected to harassment by co-workers and retaliation after she complained about it. She reached a settlement with MTC, which had employed her as a docks cleanup worker in Portland, Ore., and the union was granted summary judgment on her claims against it.
She went to trial against PMA, an association of West Coast shipping, stevedoring and terminal companies which, along with the union, operated the hiring hall that assigned Jones to MTC, and was awarded $564,000 in lost wages and damages.
The three-judge panel overturned the award, ruling that PMA did not have an employment relationship with Jones that could support liability under Title VII of the Civil Rights Act of 1964. Writing for the court, Third Circuit Senior Judge Ruggero J. Aldisert, sitting by designation, said Anderson v. Pacific Maritime Association , 336 F.3d 924 (9th Cir. 2003), which was decided after Jones won her award, was controlling.
The Anderson court, he noted, held that PMA was not the employer of the longshore workers to whom it assigned jobs and also concluded that PMA did not have enough control over the work environment to be liable under Title VII as an “indirect” employer.
Jones’ assertion that PMA and MTC were her joint employers required “a closer analysis but also ultimately fails,” the judge said.
Though Anderson did not reach the issue of joint employment, Aldisert conceded, he went on to explain that the record in Jones’ case “supports the same findings with regard to the lack of control that PMA exercises over its member-companies such as MTC.”
The Anderson court found that PMA did not supervise the longshore workers, could not hire or fire them, had no power to discipline them, and did not supervise the work sites of its members, which were solely under those members’ control.
“Logically, before a person or entity can be a joint employer, it must possess the attributes of an employer to some degree. Numerous courts have considered the key to joint employment to be the right to hire, supervise and fire employees….These circumstances are not present here. Accordingly, we conclude that PMA was not a joint employer of Jones.”
The case is Pacific Maritime Association v. Jones, 02-35536.
Copyright 2004, Metropolitan News Company