San Diego Law Review


Kelly Kagan

Library of Congress Authority File


Document Type



Courts have not uniformly applied a test to determine whether an entity may be held liable under Title VII as a joint employer. Some courts have analyzed liability based on varying degrees of control. Other courts have applied elaborate multifactor tests to determine whether an employer controlled an employee’s work and employment. Still others have examined whether two separate entities “co-determine . . . essential terms and conditions of employment.” In particular, one of the most prevalent tests is the Darden test, under which the Supreme Court “adopt[ed] a common-law [agency] test for determining who qualifies as an ‘employee’” when determining retirement benefits. After noting that its circuit had “not yet adopted a test for determining when an entity may be held liable as a joint employer under Title VII,” the Ninth Circuit opted for a blended Darden test. In implementing this test, the court held that a third party was also considered an employer under Title VII and, therefore, could be held liable for Title VII violations.

Although the circuit split is not new, the Ninth Circuit’s ruling has much deeper ramifications than other circuit decisions. The expansion of joint employer liability drastically undermines the ability to contract labor. Additionally, although this case stemmed from a Washington state case, this ruling threatens California’s economy—and it guts the United States’ agricultural system. Moreover, this may be just the beginning of the expansion, and joint employer liability theory may soon infiltrate other industries, such as the franchise industry.

Part II examines the H–2A guest worker visa program, the labor contractor role, and the title case, EEOC v. Global Horizons, Inc. Part III explores joint employer liability and the Ninth Circuit’s decision to adopt the blended Darden test. Finally, Part IV explores the potential ramifications of the Ninth Circuit’s decision in California, as well as its effect on other industries. A limited exception for the agricultural industry may best promote both Title VII protections and the agricultural industry. Instead, advocates should focus on exploring nontraditional legal remedies for protecting this vulnerable portion of the American workforce.

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