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While acknowledging that its courts had not yet taken a stance on “whether aggregation is appropriate in either the single employer or the joint employer context for purposes of determining whether the Title VII threshold is met,” the Second Circuit found that even if such aggregation had been judicially upheld, the plaintiff employee had failed to show that the employees for the two companies for which she worked could be justifiably aggregated. Arculeo v. On-Site Sales & Marketing, LLC, 2005 WL 2403853 (2nd Cir. Sept. 30).

Plaintiff Jennifer Arculeo, a sales assistant, brought this suit in the United States District Court for the Southern District of New York against both On-Site Sales & Marketing, LLC (On-Site) and Crystal Hills, LLC (Crystal Hills) alleging sex-based discrimination in employment under both Title VII of the Civil Rights Act of 1964 (Title VII) and New York Human Rights Law (NYHRL), N.Y. EXEC. LAW ”296-297. Only employers that employ at least 15 employees are covered by the provisions of Title VII. While Arculeo did not dispute the fact that neither On-Site nor Crystal Hills independently employed as many as 15 employees, she argued that the two defendants should be deemed her joint employers, and that their employees should be aggregated for purposes of meeting Title VII's 15-employee threshold. During her employment with On-Site, a marketing and sales services firm, she was assigned to work with, and under the supervision of, individuals employed by Crystal Hills, a housing construction company with which On-Site had contracted to perform sales and marketing services. Most or all of the alleged abusive contact was attributed to a Crystal Hills supervisor and the On-Site supervisor stationed at the Crystal Hills facility. While the district court did not rule on whether On-Site and Crystal Hills could be considered Arculeo's joint employers, it granted defendants' motions for summary judgment after determining, as a matter of law, that joint employers could not be aggregated for purposes of meeting the fifteen-employee minimum.