To bring a claim for employment discrimination in Pennsylvania, a plaintiff may allege a violation of Title VII and /or the Pennsylvania Human Relations Act (“PHRA”), both of which require proof of an employer-employee relationship. Temporary workers in Pennsylvania, who are hired and assigned jobs through employment agencies, face a significant legal hurdle in proving that such a relationship exists before they can get their case to a jury.
On November 18, 2015, the Third Circuit Court of Appeals ruled that temporary workers suing for bias can overcome summary judgment on the issue of an employer employee relationship. In Faush v Tuesday Morning, the court reversed a district court decision that granted summary judgment to retailer Tuesday Morning.

The appellant, Matthew Faush was an African American employee of Labor Ready, a temporary employment firm, that assigned him to work at a Tuesday Morning retail store. He claims that he was subjected to racial slurs by his immediate supervisors. The district court previously ruled for summary judgment in favor of Tuesday Morning on the issue of whether an employment relationship existed. Reviewing the grant of summary judgment de novo, the Third Circuit concluded that an application of the Darden factors was enough to establish that Faush’s relationship with Tuesday morning was more than sufficient to preclude summary judgment

The US Supreme Court’s Darden test, which the Third Circuit employed to determine the existence of an employment relationship, iterates an exhaustive list of factors that establish an employment relationship, including, but not limited to: the skill required for the worker’s task, the source of the instrumentalities and tools used, location of the work, duration of the relationship between the parties, the hiring party’s right to assign additional projects to the hired party, extent of the hired party’s discretion over duration and location of work, tax treatment of the hired party, and method of payment. Here, the Circuit reasoned that with respect to Faush’s relationship to Tuesday morning, the district court overstated the extent to which the factors relating to compensation, hiring and firing, and control over temporary employees cut against Faush.
With respect to method of payment, the court focused particularly on the payment to Labor Ready, which “were functionally indistinguishable from direct employee compensation.” Control over the employee was evident in Tuesday Morning’s direct supervision and provision of assignments. Tuesday Morning also had the power to hire and fire employees, which it could exercise through its demand for a replacement if it was unhappy with a temp’s performance.

Aside from the Darden test, the court paid particular attention to the use of the term “temporary employee” as distinguished from independent contractor, as the descriptor used for workers at Tuesday Morning. The court was further persuaded by Fourth Circuit precedent, particularly Maynard v. Kenova Chem. Co. and Butler v. Drive Automotive Industries of America, Inc., both of which involved the court holding the existence of an employment relationship for temporary employees as a matter of law.

While the Faush v Tuesday Morning ruling merely holds that a temporary employee can move past summary judgment, we think it may serve to open a broader class of individuals who can and thus will bring employment discrimination suits in Pennsylvania.

Special thanks to Sathima Jones for her contributions to this post. For more information, please e-mail Bob Cosgrove .