No. 02-35536 IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff, v. PACIFIC MARITIME ASSOCIATION, Defendant-Appellant, and INTERNATIONAL LONGSHORE WORKERS UNION, LOCAL #8, Defendant, v. TERESA JONES, Plaintiff-Intervenor-Appellee. On Appeal from the United States District Court for the District of Oregon, Civil Action No. 99-00536-HJF REHEARING EN BANC BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS AMICUS CURIAE IN SUPPORT OF APPELLEE TERESA JONES URGING AFFIRMANCE OF JUDGMENT BELOW ERIC S. DREIBAND SUSAN R. OXFORD General Counsel Attorney CAROLYN L. WHEELER U.S. EQUAL EMPLOYMENT Acting Associate General Counsel OPPORTUNITY COMMISSION 1801 L Street, N.W. LORRAINE C. DAVIS Washington, D.C. 20507 Assistant General Counsel (202) 663-4791 TABLE OF CONTENTS page TABLE OF AUTHORITIES . ii STATEMENT OF INTEREST . . . . . . . . . . . . . . 1 STATEMENT OF THE ISSUE . . 2 STATEMENT OF THE CASE . . . . . . . . . . . . . 2 SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . 10 ARGUMENT PMA IS AN EMPLOYER OF PACIFIC COAST LONGSHORE WORKERS BECAUSE PMA EXERTS SIGNIFICANT CONTROL OVER THE TERMS AND CONDITIONS OF LONGSHORE WORKERS' EMPLOYMENT . . . .. . . . . . . . . . . . . . 11 CONCLUSION . . . . . . . . . . . . . . . . . . . . 29 CERTIFICATE OF COMPLIANCE . . . . . . . . . . . . . . . . . 30 CERTIFICATE OF SERVICE . . . . . . . . . . 31 ADDENDUM: EEOC Policy Statement on the concepts of integrated enterprise and joint employer, Compliance Manual Section 605, Appendix G (BNA) 605:0095 (5/6/87) . . . . . . . . . . . . . . . 1a EEOC Enforcement Guidance: Application of EEO Laws to Contingent Workers Placed by Temporary Employment Agencies and Other Staffing Firms, N:3319-21 (BNA) (1997) (Excerpt) . . . . . . . . . . 10a EEOC Compliance Manual Section 2, "Threshold Issues," No. 915.003 (May 2000) (Excerpt) . . . . . 20a TABLE OF AUTHORITIES pages FEDERAL CASES Anderson v. Pacific Maritime Ass'n, 336 F.3d 924 (9th Cir. 2003) . . . . . passim Barrow v. New Orleans SS Ass'n, 10 F.3d 292 (5th Cir. 1994) . . . . . . . . 15 Baystate Alternative Staffing, Inc. v. Herman, 163 F.3d 668 (1st Cir. 1998) . . . 24, 26 Boire v. Greyhound Corp., 376 U.S. 473 (1964) 13, 19 Bonnette v. Calif. Health & Welfare Agency, 704 F.2d 1465 (9th Cir. 1983) . . 23, 25, 26 Bristol v. Bd. of County Comm'rs, 312 F.3d 1213 (10th Cir. 2002) . . . . 11, 12, 14 Clackamas Gastroenterology Assocs. v. Wells, 538 U.S. 440 (2003) . . . 19, 21, 22, 23 Clinton's Ditch Coop. Co. v. NLRB, 778 F.2d 132 (2d Cir. 1985) . . . . 14 Faragher v. City of Boca Raton, 524 U.S. 775 (1998) . . . . . . . . . . . . . . . . 26 Graves v. Lowery, 117 F.3d 723 (3d Cir. 1997) . . 12, 21 Lopez v. Johnson, 333 F.3d 959 (9th Cir. 2003) (per curiam) . . . . . . . . . . 12 Lujan v. Pacific Maritime Ass'n, 165 F.3d 738 (9th Cir. 1999) . . . . . . . . . 4, 28 Magnuson v. Peak Technical Servs., 808 F. Supp. 500 (E.D. Va. 1992), aff'd, 40 F.3d 1244 (4th Cir. 1994) . . . . . . . . . . . . 12 Moreau v. Air Fr., 356 F.3d 942 (9th Cir. 2004) . . 23 Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318 (1992) . . . . . . . . . . . . . 20, 22 NLRB v. Browning-Ferris Indus., Inc., 691 F.2d 1117 (3d Cir. 1982) . . 13, 14 Rivas v. Federacion de Asociaciones Pecuaria, 929 F.2d 814 (1st Cir. 1991) . . . . . . . . . 12 Sibley Mem'l Hosp. v. Wilson, 488 F.2d 1338 (D.C. Cir. 1973) . . . . . 8 Sun-Maid Growers of Cal. v. NLRB, 618 F.2d 56 (9th Cir. 1980) . . . . 14 Swallows v. Barnes & Noble Book Stores, 128 F.3d 990 (6th Cir. 1997) . . 12 Torres-Lopez v. May, 111 F.3d 633 (9th Cir. 1997) . . . . . . . . . . . . . . . . 23, 24, 25 United States v. Rosenwasser, 323 U.S. 360 (1945) . . . . . . . . . . . . . . . . 24 Virgo v. Riviera Beach Assocs., 30 F.3d 1350 (11th Cir. 1994) . . . . . . . 11 W.W. Grainger, Inc. v. NLRB, 860 F.2d 244 (7th Cir. 1988) . . . . . . . . . 13 FEDERAL STATUTES 29 U.S.C. 203(e)(1) . . 24 29 U.S.C. 203(g) . . . . 24 29 U.S.C. 791 . . . . . . 12 42 U.S.C. 2000e et seq1 42 U.S.C. 2000e(b) . . 8 42 U.S.C. 2000e(f) . . . 24 FEDERAL STATUTES (cont'd) page 42 U.S.C. 12101 et seq. . . . . . . . . . . . . . . . 28 42 U.S.C. 12112(a) & (b)(5) . . . . . . . . . . . 28 REGULATIONS 29 C.F.R. 500.20(h)(4)(ii) . . . . . . . . . . . . . 24 RULES F.R.A.P. 29(a) . . . . . 2 Circuit Rule 35-3 . . 10 OTHER AUTHORITIES EEOC Policy Statement on the concepts of integrated enterprise and joint employer, Compliance Manual Section 605, Appendix G (BNA) 605:0095 (5/6/87) . . . . . . . . . . 19 EEOC Enforcement Guidance: Application of EEO Laws to Contingent Workers Placed by Temporary Employment Agencies and Other Staffing Firms, N:3319-21 (BNA) (1997) . . . . . . 19, 20, 21, 22 EEOC Compliance Manual Section 2, "Threshold Issues," No. 915.003 (May 2000) . . . . . . . . . 19 STATEMENT OF INTEREST The Equal Employment Opportunity Commission ("EEOC" or "Commission") is entrusted by Congress with enforcement of Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e et seq. ("Title VII"), and other federal employment discrimination laws. This case raises important issues concerning who is an employer under Title VII. Specifically, this case raises the question of whether, for purposes of employment discrimination claims, Pacific Maritime Association ("PMA") is a "joint employer" of the 15,000 registered and casual longshore workers who perform longshore work for the 89 maritime shipping, stevedoring and terminal companies that comprise PMA's membership. In the course of enforcing Title VII and other federal civil rights statutes, EEOC has filed several lawsuits against PMA (including the present case) claiming PMA was liable for violations of Title VII or the Age Discrimination in Employment Act with respect to longshore workers on the coastal waterfront in Oregon, Washington, and California. Following EEOC's settlement of its claims against PMA in this case, a panel of this Court rejected a jury's finding that PMA was liable to Plaintiff-Intervenor Teresa Jones on her Title VII claim that she was subjected to sexual harassment and retaliation while performing longshore work for a PMA member-company. This Court's en banc reconsideration of the panel's decision will impact significantly future enforcement efforts vis-a-vis PMA. Because of the broad implications, for enforcement of civil rights statutes, of this Court's en banc resolution of the coverage question presented, the Commission, pursuant to F.R.A.P. 29(a), offers its views as amicus curiae. STATEMENT OF THE ISSUE Whether Pacific Maritime Association, an association of shipping, stevedoring and terminal companies along the Pacific Coast, was a joint employer with Marine Terminals Corporation for purposes of Title VII liability for sexual harassment of an employee. STATEMENT OF THE CASE Background PMA is an association of approximately 89 maritime shipping, stevedoring and terminal companies operating along the Pacific Coast in California, Oregon and Washington. Supplemental Excerpts of Record ("SER") at 213-14. PMA's principal business is "to negotiate and administer labor agreements with [the] International Longshore and Warehouse Union ["ILWU"]" including the Pacific Coast Longshore Contract Document ("collective bargaining agreement" or "CBA"). EEOC v. Pacific Maritime Ass'n, Civ. No. 99 536-FR (D. Ore. May 7, 2001), Opinion Denying Summary Judgment ("S.J.Op.") at 3, 8. The 1996-1999 CBA, SER312-436, covered all movement of cargo on the docks and all loading and unloading of containers from rail yards on or near the dock. SER317. The CBA addressed procedures for registering (hiring) longshore workers, organizing them into gangs, and dispatching (assigning) them to jobs, SER339-46; hours of work and rates of pay, SER321-24, 329-30, 366-69, 380-84; holidays, paid vacations, and other benefits, SER333-39, 376; and transfers of workers between ports. SER370, 401-04. The CBA also covered job-performance issues including accident prevention and safety, employment in skilled jobs like "crane driver," and discipline for incompetence, insubordination, improper conduct, or improper performance. SER350-56, 361-65. Of particular relevance, CBA Section 13 prohibited any "discrimination in connection with any action subject to the terms of this Agreement . . . because of . . . race, creed, color, sex, age, national origin or religious or political beliefs." See SER350. The CBA's grievance process served as the "exclusive remedy" for any disputes arising under the agreement between the Union or a longshore worker, on the one hand, and PMA or a member-employer, on the other hand. SER356-61. There are approximately 15,000 Pacific Coast longshore workers, including 10,500-11,000 "registered" longshore workers and 4,000-4,500 "casual" workers. S.J.Op. at 3, 8; SER175-76. "[B]ecause the workload for each of PMA's member companies is sporadic," PMA and ILWU established a hiring hall system to ensure that longshore workers are allocated fairly among the member-employers and according to the terms of the CBA. Anderson v. Pacific Maritime Ass'n, 336 F.3d 924, 933 (9th Cir. 2003) (B. Fletcher, J., dissenting). The dispatch hall in Portland, Oregon, is operated by PMA and ILWU Local 8 ("Local 8"). S.J.Op. at 3. Some registered longshore workers initially dispatched to a particular PMA-member company obtain a long-term assignment, or "steady" position, with that company, where they continue to work until they quit or the company releases them. S.J.Op. at 3. The remaining longshore workers are assigned work each day by the dispatch hall, where a typical job might last from four hours to several days. SER7. Casual workers are assigned any remaining work after all registered longshore workers have received job assignments. Teresa Jones began working as a casual longshore worker in Portland, Oregon, in 1980. EEOC v. PMA, 351 F.3d at 1272. At the time, she was one of ten female longshore workers out of 8,000-10,000 West Coast longshoremen working in this traditionally male environment. SER8, 81-82. After several months as a casual employee, Jones was permitted to register with PMA as a "Class B" longshore worker, performing such duties as "cleaning storage areas, driving vehicles and loading and unloading ships." In 1989, she became a "Class A" registered longshore worker, with the full benefits of membership in Local 8. Throughout this time, Jones received assignments through the dispatch hall to perform longshore work for various PMA- member companies. 351 F.3d at 1272; SER4, 120. PMA-member Marine Terminals Corporation (MTC) is a contract stevedoring company that loads and unloads ships for its customers. SER84. MTC retained Jones as a "steady sweeper" in October 1996 to perform various cleaning tasks at MTC's waterfront maintenance shop in Portland. S.J.Op. at 4. As a "steady" worker, Jones no longer received assignments through the dispatch hall to work for other stevedore companies, 351 F.3d at 1272-73, although she could return to the dispatch hall for a new assignment any time. SER242. In all other respects, her employment status did not change. As with all Pacific Coast longshore workers, PMA continued to issue Jones's weekly paychecks and annual W-2 form. S.J.Op. at 4; SER122, 269. Jones also continued to be subject to discipline for violation of behavioral and performance standards established by the collective bargaining agreement between PMA and ILWU. E.g., SER362-66. While working at MTC, Jones experienced what she described as "harassment and threats by co-workers" over a sixteen-month period, 351 F.3d at 1273, including frequent exposure to pornography, lewd and insulting comments, graffiti around her workstation, sabotage of her work areas and cleaning implements, several near collisions when the primary harasser almost drove his car into hers on the road, and other similarly unpleasant and threatening incidents. SER92. As a result of this harassment, she stopped working for approximately nine months, during which time she filed a discrimination claim with EEOC. Jones returned to the waterfront briefly in October 1998, but then elected early retirement after being injured on the job shortly after her return. 351 F.3d at 1273. In April 1999, EEOC filed suit on Jones's behalf against PMA, MTC, and Local 8, and Jones intervened. EEOC and MTC thereafter entered into a settlement whereby MTC agreed to distribute its anti-harassment policy to MTC employees. Separately, MTC agreed to pay Jones an undisclosed sum of monetary relief. Record # ("R.") 122 (12/26/00 Consent Decree Between EEOC, Jones and MTC) at 5-6. EEOC thereafter settled with PMA and Local 8 for broad injunctive relief including: modification of the grievance procedure applicable to longshore workers alleging sex harassment; training by PMA of all longshore workers (both registered and casual), "walking bosses" (i.e., foremen), and registered clerks regarding PMA's anti-harassment policies and procedures; and documentation of sex harassment or retaliation complaints (including documentation of investigations conducted, findings and conclusions, and disciplinary action taken). R.164 (2/14/01 Consent Decree Between EEOC, PMA and Local 8) at 5-8. The district court subsequently granted Local 8 summary judgment on Jones's claims, finding the union had pursued a grievance vigorously on Jones's behalf and was not responsible for any delay in the investigation of Jones's harassment claims or any insufficiency of the remedy. S.J.Op. at 12-16. The district court denied PMA's motion for summary judgment. Although noting there must be some "employment relationship for Title VII protections to apply," id. at 17, the district court observed that more than one entity may have the requisite connection with an employee and be liable as an employer for discriminatory terms and conditions of employment. Id. at 18. The court noted that PMA is the collective bargaining agent for its member-employers and, on their behalf, signs the contract document that governs the terms of longshore work. Id. Longshore workers are dispatched to work from the Joint Dispatch Hall operated by ILWU and PMA, and PMA acts as the payroll agent for its members. Id. at 18-19. Furthermore, PMA, on behalf of its member-employers, "negotiated the anti- discrimination provisions and the grievance provision of the agreement governing the terms of Jones' working conditions at [MTC]" and "was a member of the Joint Committee which was involved in all aspects of Jones' grievance proceeding." Id. at 19. Based on these record facts, the district court found "a sufficient connection in the employment relationship between Pacific Maritime and Jones to confer liability under Title VII." Id. at 18. Jones thereafter tried her claims of sex harassment and retaliation against PMA to a jury. The jury returned a verdict in Jones's favor, awarding her over $500,000 in monetary relief. R.242. After the district court denied PMA's post-trial motions for judgment in its favor, R.241; R.275, PMA appealed. Panel Decision The panel reversed, EEOC v. PMA, 351 F.3d 1270 (9th Cir. 2003), relying in large part on Anderson v. PMA, 336 F.3d 924 (9th Cir. 2003), in which a divided panel of this Court held that PMA was not the employer of longshore workers for purposes of Title VII claims of race harassment on the Seattle and Tacoma waterfront. Jones advanced three theories on appeal for holding PMA liable under Title VII for the sex harassment and retaliation she experienced while working at MTC. The panel rejected Jones's first theory, that PMA and MTC were an "integrated enterprise," on the grounds that the majority in Anderson had ruled "integrated enterprise" is only relevant for determining whether an employer has the statutory minimum of fifteen employees to be covered under Title VII, 42 U.S.C. 2000e(b), a point PMA conceded. EEOC v. PMA, 351 F.3d at 1274. The panel ruled that Jones's second theory interference in a direct employment relationship, see Sibley Mem'l Hosp. v. Wilson, 488 F.2d 1338 (D.C. Cir. 1973) was foreclosed by Anderson, as well. 351 F.3d at 1274. The panel concluded that PMA was not liable as Jones's "indirect employer" because the hostile work environment took place at a waterfront facility controlled by MTC. The panel acknowledged that Anderson did not address Jones's third theory PMA's liability as a "joint employer" and that the record in Anderson differed from Jones's. 351 F.3d at 1277. The panel nevertheless rejected the "joint employer" theory for the same general reasons the majority in Anderson found PMA was not liable under the "integrated enterprise" and "interference" legal theories. Id. The panel explained that two or more employers may be considered "joint employers" if both control the terms and conditions of the worker's employment. Id. at 1275. Observing that "[n]umerous courts have considered the key to joint employment to be the right to hire, supervise and fire employees," the panel concluded "[t]hese circumstances were not present here." Id. at 1277 (citations omitted). Quoting from Anderson (and ignoring the differences in the factual records of the two cases), the panel stated: [PMA] does not supervise the longshoremen. It has no power to hire or fire longshoremen. It has no power to discipline longshoremen. It does not supervise the work sites of its member-employers. It is undisputed that the monitoring and control over those sites, as well as the control of the employees, is within the sole province of the member-employers. Id., quoting Anderson, 336 F.3d at 927 (emphasis in original) (footnote omitted). Thus, the panel held, PMA was not a joint employer of Jones. 351 F.3d at 1277. On May 14, 2004, this Court ordered the case reheard en banc pursuant to Circuit Rule 35-3. 367 F.3d 1167 (9th Cir. 2004). SUMMARY OF ARGUMENT Two entities may both be liable under federal civil rights laws as "joint employers" when they co-determine or share responsibility for the essential terms and conditions of employment. Courts addressing this question in the context of federal employment discrimination claims have generally adopted a standard long used in federal labor relations cases, and advocated in EEOC's policy guidance, that assesses the extent to which two or more entities share control over a worker or group of workers. Under this standard, "joint employer" status is a factual question that requires consideration of all of the circumstances of the employment relationship. The question is not which of two entities has more control over the manner or means by which the employee performs a particular job, but which entity, or whether both, have the right to control significant elements of the worker's terms and conditions of employment. Applying this standard, PMA was Jones's employer for purposes of her Title VII claim of harassment and retaliation because PMA exerts significant control over many elements of longshore workers' employment, including registration (hiring), dispatch (job assignments), wages and benefits, behavioral standards and discipline for breach of those standards, and de-registration (firing). This conclusion furthers important policy considerations. As the umbrella organization representing its 89 member- companies, PMA is uniquely positioned to address concerns, such as workplace harassment, that may arise at more than one waterfront worksite or involve longshore workers assigned to more than one PMA-member during the course of the year. PMA may also, in some instances, be in a better position than its member-companies to provide reasonable accommodations to longshore workers with disabilities under the Americans with Disabilities Act. ARGUMENT PMA IS AN EMPLOYER OF PACIFIC COAST LONGSHORE WORKERS BECAUSE PMA EXERTS SIGNIFICANT CONTROL OVER THE TERMS AND CONDITIONS OF LONGSHORE WORKERS' EMPLOYMENT. This Court has not previously addressed when a private entity should be considered a "joint employer" under federal civil rights statutes. Other circuits, however, have held that two entities may both be liable under federal civil rights laws as "joint employers" if they "share or co-determine those matters governing the essential terms and conditions of employment." Bristol v. Bd. of County Comm'rs, 312 F.3d 1213, 1218 (10th Cir. 2002) (ADA) (quoting Virgo v. Riviera Beach Assocs., 30 F.3d 1350, 1360 (11th Cir. 1994) (Title VII), and listing other cases). Courts "look to whether both entities 'exercise significant control over the same employees,'" Bristol, 312 F.3d at 1218 (quoting Graves v. Lowery, 117 F.3d 723, 727 (3d Cir. 1997) (Title VII)), noting that this "question of fact" can only be answered after a "careful factual inquiry." Graves, 117 F.3d at 729 (citing Magnuson v. Peak Technical Servs., 808 F. Supp. 500, 510 (E.D. Va. 1992) (Title VII), aff'd on other grounds, 40 F.3d 1244 (4th Cir. 1994)). See also Swallows v. Barnes & Noble Book Stores, 128 F.3d 990, 993 & n.4 (6th Cir. 1997) (ADEA/ADA) (acknowledging viability of "joint employer" theory but declining to apply it because plaintiffs did not assert it); Rivas v. Federacion de Asociaciones Pecuaria, 929 F.2d 814, 819-20 & n.17 (1st Cir. 1991) (ADEA) (applying "shared control over conditions of employment" test). A number of courts have noted that the "shared control" test used in employment discrimination cases is derived from cases brought under the National Labor Relations Act ("NLRA"). See, e.g., Swallows, 128 F.3d at 993 n.3; Rivas, 929 F.2d at 820 & nn.15-17 (since framers of Title VII used NLRA as its model, appropriate to use NLRA as guidance in determining whether two employers are both liable under Title VII). The panel here likewise properly looked to cases that construe "joint employer" in the context of federal labor relations. See EEOC v. PMA, 351 F.3d at 1276-77. The NLRA cases explain that a finding of "joint employer" does not require unity of corporate control or ownership between two entities (as is required in an "integrated enterprise"). Instead, determining who is a worker's employer, for purposes of liability under federal labor relations laws, is "a matter of determining which of two, or whether both, respondents control, in the capacity of employer, the labor relations of a given group of workers." Id. at 1276 (quoting NLRB v. Browning-Ferris Indus., Inc., 691 F.2d 1117, 1122-23 (3d Cir. 1982) (internal citations omitted) (emphasis added)). As the panel noted, quoting Browning-Ferris, two entities are "joint employers" when one employer[,] while contracting in good faith with an otherwise independent company, has retained for itself sufficient control of the terms and conditions of employment of the employees who are employed by the other employer. . . . Thus, the 'joint employer' concept recognizes that the business entities involved are in fact separate but that they share or co- determine those matters governing the essential terms and conditions of employment. Id. (internal citations omitted; emphasis in original). Whether a particular entity possesses "sufficient indicia of control to be [a joint] 'employer'" is a fact-specific question. Boire v. Greyhound Corp., 376 U.S. 473, 481 (1964); W.W. Grainger, Inc. v. NLRB, 860 F.2d 244, 247 (7th Cir. 1988). Some of the factors courts have examined in the labor relations context include the right to hire and fire workers, establish work hours, set rules of conduct, discipline workers for infractions of those rules, determine compensation and benefits, maintain payroll and other employment records, provide day-to-day supervision, and participate in the collective bargaining process. Clinton's Ditch Coop. Co. v. NLRB, 778 F.2d 132, 138- 39 (2d Cir. 1985); Browning-Ferris, 691 F.2d at 1124-25; see also Rivas, 929 F.2d at 820-21; Sun-Maid Growers of Cal. v. NLRB, 618 F.2d 56, 59 (9th Cir. 1980) (upholding NLRB's finding of joint employer status where entity controlled work schedules, assigned work, and decided when additional workers were needed). Applying these factors here, the district court correctly determined that there was sufficient evidence for the jury to conclude that PMA is a joint employer of longshore workers like Jones because PMA and its member-companies "share or co-determine those matters governing the essential terms and conditions" of a longshore worker's employment. Bristol, 312 F.3d at 1218. PMA establishes conditions of employment for longshore workers when it participates in the collective bargaining process, on behalf of its member-employers, to set the wages, employee benefits, and other terms and conditions of employment for longshoremen, marine clerks, and walking bosses or foremen. SER203; SER84-87. PMA thereafter administers the negotiated terms of the CBA, providing its member companies with "integrated labor relations, human resources, and administrative services." SER204. The "integrated services" provided by PMA include the hiring or selection of longshore workers (both registered and casual), their training on such things as general safety, use of machinery such as lift trucks and cranes, and workplace diversity and EEO, discipline for breach of longshore workers' behavioral and performance standards, and issuance of longshore workers' weekly paychecks and other employment benefits. Excerpts of Record (ER) at 85-86; SER215-19, 239-40. PMA's responsibility to administer the CBA, as well as negotiate its terms on behalf of PMA's members, distinguishes this case from Barrow v. New Orleans SS Ass'n ("NOSSA"), 10 F.3d 292 (5th Cir. 1994), cited by PMA in its brief. Unlike PMA, NOSSA "had no meaningful right to control" the plaintiff's conduct, and, unlike here, there was no evidence NOSSA "paid [the plaintiff's] wages, withheld his taxes, provided benefits to him, or set the terms and conditions of his employment." 10 F.3d at 296. Granted, PMA receives the funds to pay longshore workers' wages and benefits from the member-companies, based on the extent that members utilize longshore workers for particular jobs. Nevertheless, PMA does more than just administer a payroll service for its individual members. This is most apparent with respect to the CBA's provisions for paid vacations and "guaranteed pay." SER335-38, 366-74. Registered longshore workers who worked sufficient qualifying hours the prior calendar year are eligible for paid vacations of one or more weeks. SER335-36. If an eligible longshore worker takes a week of paid vacation while working steadily for a single company during the last two months of the year, after having worked for several different PMA-members for the first ten months of the year, the "steady" employer is not responsible, individually, to fund the worker's vacation pay. See SER338 (PMA is disbursing agent for vacation paychecks). Similarly, Class A and Class B registered longshore workers who meet certain criteria are guaranteed pay for a specific number of hours per week, regardless of whether they actually worked those hours, as long as they were available for work as specified in the CBA. SER366. The funds for this "guaranteed pay"comes from PMA's members as a group, id., and since it is pay for work not performed for any PMA member-company, it is difficult to argue that PMA is simply serving as a conduit for a particular, individual PMA member-employer when PMA issues these pay checks. PMA also provides expertise to its member-employers on labor relations issues such as complaints of workplace harassment. SER102. And although an individual PMA member can return a longshore worker to the dispatching hall for performance or conduct deficiencies, SER361-62, any other discipline requires agreement between PMA and the ILWU through the Joint Port Labor Relations Committee. SER362. Thus, after Local 8 and PMA conducted a hearing in 1998 and determined that Jones had been subjected to severe and pervasive harassment, SER225, Local 8 was powerless to implement a comprehensive remedy on Jones's behalf without PMA's concurrence. SER133, 136, 138. In particular, the union was unable to implement the broad remedial steps it believed necessary including anti-harassment training for all longshore workers in the Portland area until it could persuade PMA this was appropriate. SER139-40, 226-28, 234. (This training ultimately occurred, and continues, pursuant to EEOC's settlement agreement with PMA.) In addition, although there was some testimony to the contrary from one PMA official, there is overwhelming evidence in the record that longshore workers, the PMA, and its member-employers all operate under the belief that longshore workers are employees of PMA. Every longshore worker who testified at Jones's trial stated that PMA was the employer of the West Coast longshore workers. E.g., SER128-29, 143, 146-47. A PMA official admitted that the phrase "PMA's workforce" in PMA documents refers to the registered longshore workers, clerks and foremen who work on the West Coast. SER175. When asked how many employees MTC had, the MTC manager distinguished between the company's own workforce (30 employees in the Portland area) and longshore workers like Jones. SER107. As the MTC manager explained, "Teresa [Jones] was not an employee of mine. She was just simply a person that came in and cleaned the rest rooms and the lunch rooms." SER95-96. MTC's actions during the relevant time period underscore this understanding. When MTC learned of Jones's complaints of sexual harassment, MTC contacted PMA. SER89-90. PMA then sent MTC a copy of PMA's anti-harassment policy and directed MTC to distribute it to the MTC employees working at the gear locker where Jones was assigned. SER90-91, 101, 242-42A. According to MTC, the problem was then "turned over to the PMA" to resolve. SER99. MTC had its own anti-harassment policy and procedures, SER101-02, but did not address Jones's complaints pursuant to the MTC policy because the MTC manager concluded "this was a PMA employer issue." SER102. That MTC provided on-site direction and supervision of Jones on a day-to-day basis does not undermine the conclusion that PMA is a "joint employer" of longshore workers. It is not necessary that both "joint employers" perform all of the functions of an employer in a completely duplicative fashion. Rather, for two entities to constitute "joint employers" of a worker, each entity simply needs to exert significant elements of control over the worker's terms and conditions of employment. PMA has exclusive control over the process of hiring individuals to work as longshore workers, and has extensive shared control thereafter over the assignments and general working conditions, including the disciplinary process, of longshore workers throughout the Pacific Coast. Based on this evidence, PMA exerts the requisite control here. EEOC's interpretative and policy guidance further support this conclusion. Cf. Clackamas Gastroenterology Assocs. v. Wells, 538 U.S. 440, 448-49 (2003) (Court considered EEOC's regulatory guidelines in resolving employer/employee question). Emphasizing that the determination of whether a particular entity possesses "sufficient indicia of control to be an employer is essentially a factual issue," EEOC has long taken the position, consistent with the NLRA standard, that two or more entities may qualify as "joint employers" under federal employment discrimination laws if each entity exercises sufficient control over the employee. See, e.g., EEOC Policy Statement on the concepts of integrated enterprise and joint employer, Compliance Manual Section 605, Appendix G (BNA) 605:0095 (5/6/87) ("1987 Policy Statement") at 6-8 (quoting, at 7, Boire v. Greyhound Corp., 376 U.S. at 481) (attached), cited in EEOC Enforcement Guidance: Application of EEO Laws to Contingent Workers Placed by Temporary Employment Agencies and Other Staffing Firms, N:3319-21 (BNA) (1997) ("1997 Enforcement Guidance") at 7 n.11 (attached); see also EEOC Compliance Manual Section 2, "Threshold Issues," No. 915.003 (May 2000) at 2-46 2-47 (attached). EEOC's 1997 Enforcement Guidance addresses a situation analogous to PMA's relationship with its members that of contingent workers placed by temporary employment agencies and other staffing firms. The 1997 Guidance suggests a two-step process for determining when an entity qualifies as a worker's "joint employer." First, all incidents of the employment relationship are assessed to determine whether an aggrieved individual is an "employee" or an "independent contractor" under anti- discrimination statutes. See 1997 Enforcement Guidance at 4-6 & n.10 (listing factors drawn from Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 323-24 (1992), and sources cited by Darden). If a worker is a covered employee who has an employment relationship with more than one entity, the same criteria are re-examined to determine which of the entities, or whether both, have the requisite right to control the worker's employment. As the Commission's Guidance emphasizes, "no one factor is decisive, and it is not necessary even to satisfy a majority of factors." 1997 Enforcement Guidance at 7. The determination of who qualifies as an employer of the worker cannot be based on simply counting the number of factors. Many factors may be wholly irrelevant to particular facts. Rather, all of the circumstances in the worker's relationship with each of the businesses should be considered to determine if either or both should be deemed his or her employer. . . . If both the staffing firm and its client have the right to control the worker, and each has the statutory minimum number of employees, they are covered [under federal employment discrimination laws] as "joint employers." Id. (emphasis in original). The criteria listed in EEOC's 1997 Enforcement Guidance include, in relevant part: the right to control when, where and how the worker performs the job; whether the work is performed on the staffing firm or client's premises; whether there is a continuing relationship between the worker and the firm or the client; whether the work performed is part of the regular business of the firm or the client; whether the firm or the client provides worker benefits such as insurance, leave, or worker's compensation; whether the firm or client withholds federal, state and Social Security taxes; whether the firm or the client can discharge the worker; and whether the worker and the firm or client believe they are creating an employer-employee relationship. Id. at 5-6. See also Graves, 117 F.3d at 728-29 ("Although employee expectations are not dispositive of employer status, they are relevant to our analysis."). Applying these factors demonstrates that PMA ("the firm") and its member-companies ("the clients") are both "joint employers" of the longshore workers PMA assigns to perform work at the member-companies' worksites, because PMA and its members essentially share control over each of these elements. For example, based on the number of longshore workers each member-company indicates it needs, PMA controls which longshore workers go to which jobs. Once there, the member-company controls what the longshore worker does. Although the work is performed on the client's premises, longshore workers have a "continuing relationship" with PMA. The work performed is part of the regular business of both PMA and its member-companies. Indeed, unlike a staffing firm that may provide different types of workers to different businesses, PMA's regular (and only) business is to distribute longshore assignments and administer the CBA. PMA pays longshore workers, provides benefits, and withholds taxes. And, as noted above, there is evidence in the record that longshore workers, PMA and the member-companies all believe that longshore workers are employees of PMA. The Supreme Court's decision in Clackamas affirms that "control" is the primary consideration in determining employment relationships under federal civil rights statutes. There, the Court addressed whether physician-shareholders were properly counted as employees, for purposes of determining coverage under the ADA, or whether they were actually employers. Id. at 442. The panel in this case cited Clackamas for the principle that "the sine qua non of determining whether one is an employer is that 'an employer can hire and fire employees, can assign tasks to employees and supervise their performance.'" 351 F.3d at 1277 (citing 538 U.S. at 450). This is an unduly narrow view of the Court's discussion, however. Reiterating the importance of examining "all of the incidents of the relationship," 538 U.S. at 451, the Court stated that "the common-law element of control is the principal guidepost that should be followed in this case." 538 U.S. at 448; see also id. at 449 ("We are persuaded by the EEOC's focus on the common-law touchstone of control . . . ."). Thus, the "shared control" standard recognized by the Supreme Court in Boire and applied uniformly by other circuits in employment discrimination cases is consistent with the Supreme Court's views on who is an "employer" for purposes of federal employment discrimination claims. The panel noted that the concept of "joint employer" has also been used in addressing federal wage and hour claims under the Fair Labor Standards Act (FLSA). See EEOC v. PMA, 351 F.3d at 1275-76 (quoting Torres-Lopez v. May, 111 F.3d 633 (9th Cir. 1997) (wage claims under FLSA and migrant farmworker statute)); see also Moreau v. Air Fr., 356 F.3d 942, 946-48 (9th Cir. 2004) (Family and Medical Leave Act claim); Bonnette v. Calif. Health & Welfare Agency, 704 F.2d 1465 (9th Cir. 1983) (FLSA wage claim). It is unclear to what extent the FLSA and FMLA factors, created for different statutory schemes, are properly applied in the context of federal civil rights claims. Nevertheless, and contrary to the panel's determination, a proper application of these factors also yields the conclusion that PMA is a "joint employer" of longshore workers for purposes of liability for violations of federal workplace protections. Consistent with the FLSA's broad definition of the employer-employee relationships subject to its reach, "joint employer" is also defined expansively, to effectuate the statute's broad remedial purposes. Torres-Lopez, 111 F.3d at 638-39. Department of Labor (DOL) regulations specify a non-exhaustive list of five factors to consider: (1) the nature and degree of control of the workers; (2) degree of supervision, direct or indirect, of the work; (3) power to determine pay rates or methods of payment; (4) the right, directly or indirectly, to hire, fire, or modify the employment conditions of the workers; and (5) preparation of payroll and payment of wages. Id. at 639-40 (citing 29 C.F.R. 500.20(h)(4)(ii)). Courts also consider several additional factors that help reveal the "economic reality" of the worker's relationship with the alleged employer. See Bonnette, 704 F.2d at 1469 ("touchstone is 'economic reality'"). In applying these factors, the ultimate question, however, is not whether a worker is more dependent on one entity than another, but whether a given entity exerts sufficient control over a worker that it is proper to hold that entity accountable for violations of federal statutory labor standards. Torres-Lopez, 111 F.3d at 641. When these factors are properly applied to the present case, PMA is a "joint employer" of longshore workers. PMA has the exclusive right to hire (by registering Class A and Class B longshore workers and selecting casual longshore workers) and, under the CBA, shares with the union the right to fire workers through the process of de-registration. PMA also has the exclusive right, on behalf of its members, to negotiate with the union to modify the conditions of employment. Once rates of pay, methods of payment, benefits, and other terms of employment are agreed-upon in the CBA, PMA has the exclusive responsibility to maintain employment records, prepare the payroll, and pay wages. PMA also establishes training requirements and then provides this training to new and existing longshore workers, for the benefit of its member-companies. Thus, although PMA may not provide direct supervision of the day-to-day work of longshore workers, it exerts significant control over longshore workers' conditions of employment and, indeed, on whether they work at all. See Baystate Alternative Staffing, Inc. v. Herman, 163 F.3d 668, 676 (1st Cir. 1998) (absence of direct, on-the- job supervision of workers not dispositive where temporary employment agency hired temporary workers, made job assignments and dictated when and where they were to report for work, and screened workers for minimum qualifications, among other things); Bonnette, 704 F.2d at 1470 (that entity delegated various oversight responsibilities to second party does not alter nature of first entity's relationship to employees, it merely makes both entities joint employers). The conclusion that PMA is Jones's "joint employer" also furthers important policy considerations. PMA, as the umbrella entity for companies employing longshore workers, has the ability to play a critical role in protecting longshore workers from on- the-job harassment. See Faragher v. City of Boca Raton, 524 U.S. 775, 805-06 (1998) (primary objective of Title VII is to avoid harm; employer has opportunity and affirmative obligation to prevent violations). Many longshore workers move from workplace to workplace on a regular basis. Thus, both the victims of workplace harassment and their harassers might work for a number of different PMA-member companies while the harassment is occurring. If harassment victims have recourse only against the individual member-companies, companies would face the difficulty of having to coordinate both their investigation of a complaint and the resulting remedial response. Remedial steps that might be effective at one worksite might be futile to prevent harassment from recurring at a new worksite later on, since the individual member- companies who respond initially (by, for example, requiring the harasser to stay away from the victim) would have no authority to extend any such remedy to other member- companies. PMA, on the other hand, as the designated representative for all of the member-companies, has the capacity to implement an effective anti-harassment policy across the waterfront, can provide training to all longshore workers and their supervisors, and can ensure that a proper investigation is conducted in response to a complaint and a proper remedy is implemented waterfront-wide. Indeed, apparently recognizing the benefits of such a system, the PMA-member companies and the ILWU have implemented a detailed anti-harassment policy and complaint procedure that applies to all longshore workers throughout the West Coast, wherever they are assigned to work. See SER299-311. As the dissent recognized in Anderson, PMA is thus in the unique position of being able to effectuate or, conversely, impede, remedial action for longshore workers' complaints of harassment. 336 F.3d at 934, 940-43 ("PMA plays a critical role in ensuring that member companies do not turn a blind eye to harassment;" Anderson plaintiffs alleged that PMA failed to process numerous complaints by longshore workers of race harassment) (B. Fletcher, J., dissenting). Finding PMA to be a "joint employer" of longshore workers like Jones thus furthers the important policy reasons underlying the Supreme Court's decision in Faragher, that employers should be encouraged to take reasonable steps to prevent and remedy workplace harassment. PMA's responsibility, with the union, to establish and administer standards and procedures across the waterfront is equally important with respect to longshore workers' rights under the Americans with Disabilities Act (ADA), 42 U.S.C. 12101 et seq. As is the case with the prevention of workplace harassment, PMA is uniquely situated to effectuate longshore workers' ADA rights to "reasonable accommodation" under 42 U.S.C. 12112(a) & (b)(5). See, e.g., Lujan v. Pacific Maritime Ass'n, 165 F.3d 738, 739-40, 742-43 (9th Cir. 1999); SER300 (referencing PMA/ILWU procedure for reasonable accommodation requests for recognized disabilities). CONCLUSION For all the foregoing reasons, EEOC urges this Court to affirm the entry of judgment below in favor of Jones. Respectfully submitted, ERIC S. DREIBAND General Counsel CAROLYN L. WHEELER Acting Associate General Counsel LORRAINE C. DAVIS Assistant General Counsel ___________________________________ SUSAN R. OXFORD Attorney Dated: June 17, 2003 EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street, N.W., Room 7010 Washington, D.C. 20507 (202) 663-4791 CERTIFICATE OF COMPLIANCE The undersigned hereby certifies that pursuant to Rule 32(a)(7)(C), the within Amicus Curiae brief of the Equal Employment Opportunity Commission was prepared in Times New Roman, 14 point, and contains 6,934 words as determined by the word-counting function of the WordPerfect 9 program in which this brief was prepared. __________________________________ SUSAN R. OXFORD, Attorney Dated: June 17, 2004 CERTIFICATE OF FILING AND SERVICE I hereby certify that on this dated I sent, by Federal Express overnight delivery, an original and 20 copies of the Amicus Curiae Brief of the Equal Employment Opportunity Commission to the Clerk of the Court for the U.S. Court of Appeals for the Ninth Circuit, and at the same time served two copies on each of the following counsel, at the addresses noted below, by the same means: Thane Tienson, Esq. Bradley F. Tellam, Esq. Copeland, Landye, Bennett and Wolf LLP Barran Liebman LLP 1300 SW 5th Ave., Suite 3500 601 S.W. 2nd Ave., Suite 2300 Portland, Oregon 97201 Portland, Oregon 97204 Counsel for Teresa Jones Counsel for PMA Robert S. Remar, Esq. Leonard, Carder LLP 1188 Franklin Street, Suite 201 San Francisco, CA 94109-6839 Counsel for ILWU ______________________________ SUSAN R. OXFORD, Attorney Dated: June 17, 2004 ________________________________ 1 Besides receiving the last job assignments, casual workers are ineligible for contractual employment benefits and unemployment guarantees and cannot obtain “steady” job assignments. ER87. This Court described the classes of longshore workers and the dispatch process in Lujan v. Pacific Maritime Ass’n, 165 F.3d 738, 739 (9th Cir. 1999). 2 The majority in Anderson concluded that PMA did not exercise sufficient control over the waterfront to be held liable for failing to remedy the hostile work environment. The majority rejected as “too attenuated” PMA’s role in the grievance process, stating “PMA had no authority under the formal procedures to correct any harassment at the waterfront” and that its role, in any event, was limited to that of a “discretionary mediator” that was “not empowered to fire or even discipline longshoremen for harassment.” Id. at 931-32 (emphasis in original). The dissent viewed the facts very differently. Based on PMA’s extensive involvement in establishing and implementing the terms and conditions of employment for longshore workers and PMA’s virtual control over the grievance process, the dissent found Sibley’s “interference” theory provided a basis to hold PMA liable for the plaintiffs’ race harassment claims. 336 F.3d at 938-44 (B. Fletcher, J., dissenting). 3 This Court recently held, in Lopez v. Johnson, 333 F.3d 959 (9th Cir. 2003) (per curiam), that an employee of a federal contractor performing contract work for the U.S. Navy was not a Navy employee under the “joint employer” theory, for purposes of bringing a claim against the Navy under section 501 of the Rehabilitation Act of 1973, 29 U.S.C. § 791. This Court declined to decide what specific standard applies to such a question, concluding that “control” was the primary consideration in any event, and that it was clear the Navy did not retain for itself sufficient control over Lopez to be deemed his joint employer. Id. at 962-63. 4 The majority in Anderson erroneously concluded that PMA has no authority to supervise or discipline longshore workers because the CBA places this responsibility with the “member-employers.” See, e.g., 336 F.3d at 926-27. PMA, however, serves as the member-employers’ representative in effectuating discipline and otherwise enforcing the behavioral standards of the CBA. Id. at 934 (B. Fletcher, J., dissenting). PMA’s member-companies act as a collective body through PMA. 5 Notwithstanding MTC’s statements that Jones did not work for MTC, it is EEOC’s view that PMA and its member-companies are each “joint employers” of the longshore workers who work for a given PMA member on either a sporadic or steady basis. Indeed, the CBA refers to PMA members as “the Employers.” SER316. 6 Although Darden addressed who is an employee under the Employee Retirement Income Security Act of 1974 (ERISA), the definition of “employee” is essentially the same as in the statutes EEOC enforces. See, e.g., Clackamas, 538 U.S. at 444-45. 7 The other elements listed in Darden, 503 U.S. at 323-24, and in EEOC’s 1997 Enforcement Guidance (at 5-6) address whether someone is a covered “employee” or an independent contractor, not whether a particular entity is a worker’s “employer.” These other factors include, among other things, the level of skill or expertise required; who supplies the tools, materials and equipment; the right to assign additional projects to the worker; whether the worker is paid by the hour/week/month or by the job; and whether the worker is engaged in his or her own distinct business. 8 Title VII and the FLSA both define “employee” as someone “employed by an employer.” See 42 U.S.C. § 2000e(f); 29 U.S.C. § 203(e)(1). Title VII does not define “employ.” The FLSA, on the other hand, provides that an entity “employs” an individual under if it “suffer[s] or permit[s]” that individual to work. 29 U.S.C. § 203(g). Courts discussing the FLSA have observed that “a broader or more comprehensive coverage of employees within the stated categories would be difficult to frame.” Baystate Alternative Staffing, Inc. v. Herman, 163 F.3d 668, 675 (1st Cir. 1998) (citing United States v. Rosenwasser, 323 U.S. 360, 362 (1945)). 9 These “non-regulatory factors” include: whether the work is a “specialty job on the production line”; whether responsibility under the labor contract passes from one labor contractor to another without material change; whether the employer’s premises and equipment are used for the work; whether the employees shift as a unit from one worksite to another; whether the work is “piecework” not requiring “initiative, judgment or foresight”; whether the employee has an opportunity for profit or loss depending upon his/her managerial skills, whether there is permanence in the working relationship; and whether the service rendered is an integral part of the alleged employer’s business. See Torres-Lopez v. May, 111 F.3d at 640.