A transgender woman isÂ suingÂ McDonaldâs and the owner of the franchised restaurant she worked for after allegedly experiencing sexual harassment and discrimination.
LaâRay Reed said a coworker asked if she were a âboy or girl,â âtop or bottom,â or what her âroleâ was âin the bedroom.â She said she was groped and spied on while using the public toilet.
But for Reed to hold McDonaldâs responsible for her alleged mistreatment, her lawyers have to prove that McDonaldâs should be held responsible as a joint employerânot just the owners of the franchised restaurant. There is a question of whether the Labor Departmentâs recent decision toÂ rescindÂ the standard for determining who is a joint employer will hinder her ability to seek justice. The Obama administrationâs standard went beyond simply looking at who sets wages and hires people, and considered a workerâs âeconomic dependencyâ on the business.
McDonaldâs has resisted this legal responsibility for many years, and says it does not have control over things like pay and working conditions at franchised restaurants. In 2016, McDonaldâsÂ settledÂ a wage-theft class action through a $3.75 million payment that allowed it to dodge responsibility. McDonaldâsÂ releasedÂ a statement that said it âreconfirms that it is not the employer of or responsible for employees of its independent franchisees.â
Industry groups have been pushing against efforts to call businesses like McDonaldâs joint employers for many years now. In 2015, Matt Haller, a lobbyist at the International Franchise AssociationÂ calledÂ a 2015 National Labor Relations Board ruling on whether a recycling company could be called a joint employer, âa knife-to-the throat issue for the franchise model.â HeÂ toldÂ the Washington Post, âYouâd be hard pressed to find a business that shouldnât be concerned about the impact of this joint employer standard.â HallerÂ saidÂ IFA was âpleasedâ at the departmentâs decision to rescind guidance this month.
But there is certainly hope for LaâRay Reed, and other workers like her who are experiencing discrimination or issues such as wage theft at work. Since the joint employer guidance does not have the full force of law, it is not as important to these cases as existing tests for determining if an employer relationship exists. Under theÂ economic realities test, applied under Title VII of the Civil Rights Act of 1964 and the Fair Labor Standards Act, among other laws, a relationship exists if someone is economically dependent on that business. Paul Secunda, professor of law at Marquette University, who teaches on employment discrimination law, said this test will play a much bigger role in determining whether an employee can hold McDonaldâs responsible for discrimination.
âJust the Trump administration withdrawing this guidance does not mean in any way that these claims are doomed to failure or are otherwise are not plausible,â Secunda said. âBecause what matters the most with employment law is focusing on employment discrimination under Title VII and what other state laws apply there.â
âThis control standard is the standard that has been in place since the 1950s and â60s, and so it doesnât make sense to have different standards under different laws. It only makes sense to hold liable those who control what happens in the workplace,â Secunda added.
Representatives of Fight for $15, a group of fast food workers, teachers, and adjunct professors advocating for better pay backed by the Service Employees International Union,Â saidÂ McDonaldâs has failed to enforce its own policies.
âThe growing number of allegations suggests a failure by McDonaldâs to enforce the zero-tolerance policy against sexual harassment outlined in its Operations and Training and Policies for Franchisees manuals,â the labor groupÂ toldÂ BuzzFeed.
âThere are terms and conditions that are set by the national parent McDonaldâs,â Secunda said. âIt has a policy on sexual harassment and equal opportunity that all its franchisees have to meet: that it will not tolerate sexual harassment whether based on transgender status or otherwise in the workplace. [The argument is] that McDonaldâs parent company exercises meaningful controlâthat is being free from sexual harassment and demeaning conduct in the workplace.â
None of this means that any parent corporation is responsible for any franchiseesâ lability, Secunda said, since every case must be decided on its facts, but where employers do exercise meaningful control over employees, there should be a possibility that they will be held responsible.
The decision to rescind this joint-employer guidance will by no means kill any possibility of holding a corporation, such as McDonaldâs, responsible, and a judge would be more likely to consider the rule of law first, Secunda said, but the joint employer guidance would still be a helpful resource for the defendant to have in its arsenal.
âIf I were a conservative jurist who wanted it to come out on the corporate conservative side of the world, I see that they could use this. âYou know theyâre the expert agency, so they canât be wrong,ââ Secunda said. âBut I just think that would be disingenuous, because the agency has obviously changed its position based on the politics on the administration. And this should be an answer that has nothing to do with politics. It should be based on rule of law.â
This blog was originally published at ThinkProgress on June 22, 2017. Reprinted with permission.Â
About the Author: Casey Quinlan is a journalist covering education, investments, politics, crime, and LGBT issues.