Call 1-800-949-4ADA
for Technical Assistance
The U.S. Equal Employment Opportunity Commission
EEOC NOTICE
Number 915.002
Date 12/03/97
1. SUBJECT: Enforcement
Guidance: Application of EEO
Laws to
Contingent Workers Placed by Temporary
Employment
Agencies and Other Staffing Firms.
2. PURPOSE: This document
provides guidance regarding the
application
of the anti-discrimination statutes to
temporary,
contract, and other contingent employees.
3. EFFECTIVE DATE: Upon receipt.
4. EXPIRATION DATE: As an exception to EEOC Order 205.001, Appendix B, Attachment 4, § a(5), this Notice will remain in effect until rescinded or superseded.
5. ORIGINATOR: Title VII/EPA/ADEA Division, Office of Legal Counsel.
6. INSTRUCTIONS: File after Section 605 of Volume II of the Compliance Manual.
12/3/97
\s\
________________________
______________________________
Date
Gilbert F. Casellas
Chairman
Executive Summary
This Guidance addresses the
application of the federal
employment discrimination statutes to individuals
placed
in job assignments by temporary employment
agencies,
contract firms, and other firms that hire
workers and
place them in job assignments with the
firms' clients.
The term "staffing firm" is used in this
document to
refer to these types of firms.
Staffing firm workers are
generally covered under the
anti- discrimination statutes. This
is because they
typically qualify as "employees" of the
staffing firm,
the client to whom they are assigned, or
both. Thus,
staffing firms and the clients to whom
they assign
workers may not discriminate against the
workers on the
basis of race, color, religion, sex, national
origin,
age, or disability.
The guidance makes clear
that a staffing firm must hire
and make job assignments in a non-discriminatory
manner.
It also makes clear that the client must
treat the
staffing firm worker assigned to it in
a non-
discriminatory manner, and that the staffing
firm must
take immediate and appropriate corrective
action if it
learns that the client has discriminated
against one of
the staffing firm workers. The document
also explains
that staffing firms and their clients are
responsible for
ensuring that the staffing firm workers
are paid wages on
a non-discriminatory basis. Finally,
the guidance
describes how remedies are allocated between
a staffing
firm and its client when the EEOC finds
that both have
engaged in unlawful discrimination.
TABLE OF CONTENTS
[NOTE: Page numbers removed
in electronic version]
INTRODUCTION
STAFFING SERVICE WORK ARRANGEMENTS
COVERAGE ISSUES
DISCRIMINATORY ASSIGNMENT PRACTICES
DISCRIMINATION AT WORK SITE
DISCRIMINATORY WAGE PRACTICES
ALLOCATION OF REMEDIES
CHARGE PROCESSING INSTRUCTIONS
Enforcement Guidance: Application of EEO
Laws to
Contingent Workers Placed by Temporary
Employment
Agencies and Other Staffing Firms
INTRODUCTION
This Guidance addresses the
application of Title VII of
the Civil Rights Act of 1964 (Title VII),
the Age
Discrimination in Employment Act (ADEA),
the Americans
with Disabilities Act (ADA), and the Equal
Pay Act (EPA)
to individuals placed in job assignments
by temporary
employment agencies and other staffing
firms, i.e.,
"contingent workers." The term "contingent
workers"
generally refers to workers who are outside
an employer's
"core" work force, such as those whose
jobs are
structured to last only a limited period
of time, are
sporadic, or differ in any way from the
norm of full-time,
long-term employment.
This guidance focuses on
a large subgroup of the
contingent work force -- those who are
hired and paid by
a "staffing firm," such as a temporary
employment agency
or contract firm, but whose working conditions
are
controlled in whole or in part by the clients
to whom
they are assigned.
Recent statistics compiled
by the National Association of
Temporary and Staffing Services (NATSS)
show that the
temporary help industry currently employs
more than 2.3
million individuals.1 That number
represents a 100%
increase since 1991, when 1.15 million
individuals were
employed in temporary help jobs.
NATSS statistics also
show that the professional segment of the
temporary help
industry (including occupations in accounting,
law,
sales, and management) has risen significantly.
A 1995 survey by the Bureau
of Labor Statistics (BLS)
showed that workers paid by temporary employment
agencies
were more likely to be female and African
American than
workers in traditional job arrangements,2
while workers
provided by contract firms were disproportionately
male.3
BLS found that workers paid by temporary
help agencies
were heavily concentrated in administrative
support and
laborer occupations and earned 60 percent
of the
traditional worker wage.4 The largest
proportion of
contract workers was employed in the services
industry,
and female contract workers earned
slightly less than
traditional workers while male contract
workers earned
more. BLS also found that contract
and temporary
workers had lower rates of health insurance
and pension
coverage than traditional workers, and
that the majority
of temporary workers would have preferred
traditional
work arrangements.
Staffing firms may assume
that they are not responsible
for any discrimination or harassment that
their workers
confront at the clients' work sites.
Similarly, some
clients of staffing firms may assume
that they are not
the employers of temporary or contract
workers assigned
to them, and that they therefore have no
EEO obligations
toward these workers. However, as
this guidance
explains, both staffing firms and their
clients share EEO
responsibilities toward these workers.
The Commission has addressed
in previous guidance several
of the coverage issues discussed in this
document.5
However, because use of contingent workers
is increasing,
it is important to set out an updated and
unified policy
that more specifically explains how the
anti-
discrimination laws apply to this segment
of the
workforce.
This document provides guidance
concerning the following
issues:
coverage under
the EEO laws, including coverage of
workers assigned
to federal agencies;
liability of
staffing firms and/or clients for
discriminatory
hiring, assignment, or wage
practices;
liability of
staffing firms and/or clients for unlawful
discrimination
or harassment at the assigned work
site; and
allocation of
damages where both the staffing firm and
its client
violate EEO laws.
STAFFING SERVICE WORK ARRANGEMENTS
The activities of the following
types of staffing firms
are addressed in this guidance6:
Temporary Employment Agencies
Unlike a standard employment agency, a temporary
employment
agency employs the individuals that it
places in
temporary jobs at its clients' work
sites.
The agency recruits, screens, hires, and
sometimes
trains its employees. It sets and pays
the wages
when the worker is placed in a job
assignment,
withholds taxes and social security,
and provides
workers' compensation coverage. The
agency bills
the client for the services performed.
While the
worker is on a temporary job assignment,
the client
typically controls the individual's
working conditions,
supervises the individual, and
determines
the length of the assignment.
Contract Firms
Under a variety of arrangements, a firm may
contract
with a client to perform a certain service
on a long-term
basis and place its own employees,
including
supervisors, at the client's work site to
carry out
the service. Examples of contract firm
services
include security, landscaping, janitorial,
data processing,
and cafeteria services.
Like a temporary employment agency, a contract firm
typically
recruits, screens, hires, and sometimes
trains its
workers. It sets and pays the wages
when the
worker is placed in a job assignment,
withholds
taxes and social security, and provides
workers'
compensation coverage.
The primary difference between a temporary agency
and a contract
firm is that a contract firm takes
on full operational
responsibility for performing
an ongoing
service and supervises its workers at
the client's
work site.
Other Types of Staffing Firms
There are many variants on the staffing firm/
client model.
For example, "facilities staffing" is
an arrangement
in which a staffing firm provides
one or more
workers to staff a particular client
operation
on an ongoing basis, but does not manage
the operation.
Under another model, a client of a staffing firm
puts its
workers on the firm's payroll, and the
firm leases
the workers back to the client. The
purpose of
this arrangement is to transfer
responsibility
for administering payroll and
benefits
from the client to the staffing firm. A
staffing
firm that offers this service does not
recruit,
screen, or train the workers.
The term "staffing firm"
is used in this document to
describe generically these types of firms,
although more
specific terms are used where necessary
for purposes of
clarity.
COVERAGE ISSUES
This section sets forth criteria
for determining whether
a staffing firm worker qualifies as an
"employee" within
the meaning of the anti-discrimination
statutes or an
independent contractor; whether the staffing
firm and/or
its client qualifies as the worker's
employer(s); and
whether the staffing firm or its client
can be liable for
discriminating against the worker even
if it does not
qualify as the worker's employer.
This section also
discusses coverage of staffing firm workers
assigned to
jobs in the Federal Government and coverage
of workers
assigned to jobs in connection with welfare
programs.
Finally, this section explains the method
for counting
workers of a staffing firm or its client
to determine
whether either entity has the minimum number
of employees
to be covered under the applicable anti-discrimination
statute.
1.
Are staffing firm workers "employees" within the meaning
of the federal
employment discrimination laws?
Yes, in the great majority of circumstances.7 The
threshold
question is whether a staffing firm
worker is
an "employee" or an "independent
contractor."
The worker is a covered employee
under the
anti-discrimination statutes if the right
to control
the means and manner of her work
performance
rests with the firm and/or its client
rather than
with the worker herself. The label
used to describe
the worker in the employment
contract
is not determinative. One must consider
all aspects
of the worker's relationship with the
firm and
the firm's client.8 As the Supreme Court
has emphasized,
there is " no shorthand formula or
magic phrase
that can be applied to find the
answer, .
. . all incidents of the relationship
must be assessed
with no one factor being
decisive.'"9
Factors that indicate that the worker
is a covered
employee include:10
a)
the firm or the client has the right to control
when, where, and how the worker performs the
job;
b) the work does not require a high level
of skill or
expertise;
c) the firm or the client rather than the
worker
furnishes the tools, materials, and equipment;
d) the work is performed on the premises
of the firm
or the client;
e) there is a continuing relationship between
the
worker and the firm or the client;
f) the firm or the client has the right
to assign
additional projects to the worker;
g) the firm or the client sets the hours
of work and
the duration of the job;
h) the worker is paid by the hour, week,
or month
rather than for the agreed cost of performing
a particular job;
I) the worker has no role in hiring and
paying
assistants;
j) the work performed by the worker is part
of the
regular business of the firm or the client;
k) the firm or the client is itself in business;
l) the worker is not engaged in his or her
own
distinct occupation or business;
m) the firm or the client provides the worker
with
benefits such as insurance, leave, or workers'
compensation;
n) the worker is considered an employee
of the firm or
the client for tax purposes (i.e., the entity
withholds federal, state, and Social Security
taxes);
o) the firm or the client can discharge
the worker;
and
p) the worker and the firm or client believe
that they
are creating an employer-employee
relationship.
This list is not exhaustive. Other aspects of the
relationship
between the parties may affect the
determination
of whether an employer-employee
relationship
exists. Furthermore, not all or even
a majority
of the listed criteria need be met.
Rather, the
fact-finder must make an assessment
based on
all of the circumstances in the
relationship
between the parties.
Example 1: A temporary employment
agency hires a worker and assigns
him to serve as a computer
programmer for one of the agency's
clients. The agency pays the worker
a salary based on the number of
hours worked as reported by the
client. The agency also withholds
social security and taxes and
provides workers' compensation
coverage. The client establishes
the hours of work and oversees the
individual's work. The individual
uses the client's equipment and
supplies and works on the client's
premises. The agency reviews the
individual's work based on reports
by the client. The agency can
terminate the worker if his or her
services are unacceptable to the
client. Moreover, the worker can
terminate the relationship without
incurring a penalty. In these
circumstances, the worker is an
"employee."
2.
Is a staffing firm worker who is assigned to a client an
employee
of the firm, its client, or both?
Once it is determined that a staffing firm worker
is an "employee,"
the second question is who is the
worker's
employer. The staffing firm and/or its
client will
qualify as the worker's employer(s) if,
under the
factors described in Question 1, one or
both businesses
have the right to exercise control
over the
worker's employment. As noted above, no
one factor
is decisive, and it is not necessary
even to satisfy
a majority of factors. 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 either entity qualifies as the
worker's
employer, and if that entity has the
statutory
minimum number of employees (see Question
6), then
it can be held liable for unlawful
discriminatory
conduct against the worker. 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 as
"joint employers."11
a. Staffing Firm:
The relationship between a staffing firm and each
of its workers
generally qualifies as an employer-
employee
relationship because the firm typically
hires the
worker, determines when and where the
worker should
report to work, pays the wages, is
itself in
business, withholds taxes and social
security,
provides workers' compensation coverage,
and has the
right to discharge the worker. The
worker generally
receives wages by the hour or week
rather than
by the job and often has a continuing
relationship
with the staffing firm. Furthermore,
the intent
of the parties typically is to establish
an employer-employee
relationship.12
In limited
circumstances, a staffing firm might not
qualify as
an employer of the workers that it
assigns to
a client. For example, in some
circumstances,
a client puts its employees on the
staffing
firm's payroll solely in order to transfer
the responsibility
of administering wages and
insurance
benefits. This is often referred to as
employee
leasing. If the firm does not have the
right to
exercise any control over these workers,
it would
not be considered their "employer."13
b. Client:
A client of a temporary employment agency typically
qualifies
as an employer of the temporary worker
during the
job assignment, along with the agency.
This is because
the client usually exercises
significant
supervisory control over the worker.14
Example 2: Under the facts of
Example 1, above, the temporary
employment agency and its client
qualify as joint employers of the
worker because both have the right
to exercise control over the
worker's employment.
Example 3: A staffing firm hires
charging party (CP) and sends her to
perform a long term accounting
project for a client. Her contract
with the staffing firm states that
she is an independent contractor.
CP retains the right to work for
others, but spends substantially all
of her work time performing services
for the client, on the client's
premises. The client supervises CP,
sets her work schedule, provides the
necessary equipment and supplies,
and specifies how the work is to be
accomplished. CP reports the number
of hours she has worked to the
staffing firm. The firm pays her
and bills the client for the time
worked. It reviews her work based
on reports by the client and has the
right to terminate her if she is
failing to perform the requested
services. The staffing firm will
replace her with another worker if
her work is unacceptable to the
client.
In these circumstances, despite the
statement in the contract that she
is an independent contractor, both
the staffing firm and the client are
joint employers of CP.15
Clients of contract firms and other types of
staffing
firms also qualify as employers of the
workers assigned
to them if the clients have
sufficient
control over the workers, under the
standards
set forth in Question 1, above.16 For
example,
the client is an employer of the worker if
it supplies
the work space, equipment, and
supplies,
and if it has the right to control the
details of
the work to be performed, to make or
change assignments,
and to terminate the
relationship.
On the other hand, the client would
not qualify
as an employer if the staffing firm
furnishes
the job equipment and has the exclusive
right, through
on-site managers, to control the
details of
the work, to make or change assignments,
and to terminate
the workers.
Example 4: A staffing firm provides
janitorial services for its clients.
It hires the workers and places them
on each client's premises under the
supervision of the contract firm's
own managerial employees. The
firm's manager sets the work
schedules, assigns tasks to the
janitors, provides the equipment
they need to do the job, and
supervises their work performance.
The client has no role in
controlling the details of the work,
making assignments, or setting the
hours or duration of the work. Nor
does the client have authority to
discharge the worker. In these
circumstances, the staffing firm is
the worker's exclusive employer; its
client is not a joint employer.
Example 5: A staffing firm provides
landscaping services for clients on
an ongoing basis. The staffing firm
selects and pays the workers,
provides health insurance and
withholds taxes. The firm provides
the equipment and supplies necessary
to do the work. It also supervises
the workers on the clients'
premises. Client A reserves the
right to direct the staffing firm
workers to perform particular tasks
at particular times or in a
specified manner, although it does
not generally exercise that
authority. Client A evaluates the
quality of the workers' performance
and regularly reports its findings
to the firm. It can require the
firm to remove the worker from the
job assignment if it is
dissatisfied. The firm and the
Client A are joint employers.
3.
Can a staffing firm or its client be liable for
unlawfully
discriminating against a staffing firm
worker even
if it does not qualify as the worker's
employer?
An entity that has enough employees to qualify as
an employer
under the applicable EEO statute can be
held liable
for discriminating against an
individual
who is not its employee. The anti-
discrimination
statutes not only prohibit an
employer
from discriminating against its own
employees,
but also prohibit an employer from
interfering
with an individual's employment
opportunities
with another employer.17 Thus, a
staffing
firm that discriminates against its
client's
employee or a client that discriminates
against a
staffing firm's employee is liable for
unlawfully
interfering in the individual's
employment
opportunities.18
Example 6: A staffing firm assigned
one of its employees to maintain and
repair a client's computers. The
firm supplied all the tools and
direction for the repairs. The
technician was on the client's
premises only sporadically over a
three to four week period and worked
independently while there. The
client did not report to the firm
about the number of hours worked or
about the quality of the work. The
client had no authority to make
assignments or require work to be
done at particular times. After a
few visits, the client asked the
contract firm to assign someone
else, stating that it was not
satisfied with the worker's computer
repair skills. However, the worker
believes that the true reason for
the client's action was racial bias.
The client does not qualify as a
joint employer of the worker because
it had no ongoing relationship with
the worker, did not pay the worker
or firm based on the hours worked,
and had no authority over hours,
assignments, or other aspects of the
means or manner by which the work
was achieved. However, if the
client's request to replace the
worker was due to racial bias, and
if the client had fifteen or more
employees, it would be liable for
interfering in the worker's
employment opportunities with the
staffing firm.
Example 7: A company puts its
employees on the payroll of a
staffing firm solely in order to
transfer the responsibility of
administering wages and insurance
benefits for the company's workers.
The staffing firm administers a
health insurance policy for its
client's workers that does not cover
AIDS-related illness. Two workers
file ADA charges against the
staffing firm and the client. The
staffing firm claims that it is not
an employer of the workers and
therefore falls outside ADA
coverage.
The staffing firm does not qualify
as a joint employer of the workers
because it does not have the
requisite degree of control -- it
did not hire the workers; establish
their wage rates or hours; control
the conditions of work; manage
personnel disputes; or have the
right to fire the workers.
Nevertheless, the firm shares
liability with its client for the
discriminatory health insurance plan
if it has fifteen or more employees
of its own to fall under the
coverage of the ADA.19 This is
because the firm's administration of
the insurance plan interferes in the
workers' access to employment
opportunities or benefits.20
4.
Do the same coverage principles apply when a staffing
firm assigns
a worker to a federal agency?
The principles regarding joint employer coverage
are the same.
Thus, a federal agency qualifies as
a joint employer
of an individual assigned to it if
it has the
requisite control over that worker, as
discussed
in Questions 1 and 2. If so, and if the
agency discriminates
against the individual, it is
liable whether
or not the individual is on the
federal payroll.21
In contrast to private employers, a federal agency
that does
not qualify as a joint employer of the
worker assigned
to it cannot be found liable for
discrimination
under a "third party interference"
theory.
This is because Title VII, the ADEA, and
Section 501
of the Rehabilitation Act only permit
claims against
the federal government by "employees
or applicants
for employment."22
5.
Are workers participating in work-related activities in
connection
with welfare programs protected by the
federal employment
discrimination laws? If so, who
is the employer
of such a worker? What types of
claims might
arise?
a. Employee Status
Welfare recipients participating in work-related
activities23
are protected by the federal anti-
discrimination
statutes if they are "employees"
within the
meaning of the federal employment
discrimination
laws.24 See Question 1. The simple
fact of participation
in one of these activities is
not dispositive
of the question of whether the
federal employment
discrimination laws apply.
Rather, the
same analysis applies which is used to
determine
whether any other worker is covered by
the federal
employment discrimination laws. Under
the criteria
that have been set out, welfare
recipients
would likely be considered employees in
most of the
work activities described in the new
welfare law,
including unsubsidized and subsidized
public and
private sector employment, work
experience,
and on-the-job training programs.25 On
the other
hand, individuals engaged in activities
such as vocational
education, job search
assistance,
and secondary school attendance would
probably
not be covered.26
b. Employer Status
While some workers participating in these programs
will have
a single employer, others may have joint
employers.
For example, a state or local welfare
agency may
function as a staffing firm and the
"direct"
employer may function as the client. In
some cases,
a state or local welfare agency may
contract
with a temporary employment agency to
place the
welfare recipients in job assignments.
The determination
of whether any or all of these
entities
are employers of the worker is based on
the same
criteria set forth in answer to Questions
1 and 2 that
apply to any other employment
situation.
The fact that an entity does not pay
the worker
a salary does not, by itself, defeat a
finding of
an employment relationship. Moreover,
even if an
entity is not the worker's employer, it
can be found
liable under the employment
discrimination
laws based on the interference
theory explained
in the answer to Question 3.
c. Types of Claims
Types of claims which may arise include, for
example,
harassment, discriminatory assignments,
discriminatory
termination, failure to provide
reasonable
accommodation to persons covered under
the Americans
with Disabilities Act, and
retaliation.
6.
Which workers are counted when determining whether a
staffing
firm or its client is covered under Title
VII, the
ADEA, or the ADA?
The staffing firm and the client each must count
every worker
with whom it has an employment
relationship.27
Although a worker assigned by a
staffing
firm to a client may not appear on the
client's
payroll, (s)he must be counted as an
employee
of both entities if they qualify as joint
employers.28
Questions 1 and 2, above, set forth
the legal
standards for determining whether a
worker has
an employment relationship with either
the staffing
firm or its client, or both.
The Supreme Court has made clear that a respondent
must count
each employee from the day that the
employment
relationship begins until the day that
it ends,
regardless of whether the employee is
present at
work or on leave on each working day
during that
period.29 Thus, a client of a staffing
firm must
count each worker assigned to it from the
first day
of the job assignment until the last day.
The staffing
firm also must count the worker as its
employee
during every period in which the worker is
sent on a
job assignment.
Staffing firms are typically covered under the
anti- discrimination
statutes, because their
permanent
staff plus the workers that they send to
clients generally
exceeds the minimum statutory
threshold.
Clients may or may not be covered,
depending
on their size.
In cases
where questions are raised regarding
coverage,
the investigator should ask the
respondent
to name and provide records regarding
every individual
who performed work for it,
including
all individuals assigned by staffing
firms and
any temporary, seasonal, or other
contingent
workers hired directly by the
respondent.
If the investigator has questions
about the
documents produced and cannot otherwise
obtain the
necessary information, he or she may
consider
deposing the respondent. The investigator
should then
determine which of the named
individuals
qualified as employees of the
respondent
rather than independent contractors,
according
to the standards set forth in Questions
1 and 2,
above.
DISCRIMINATORY ASSIGNMENT PRACTICES
A staffing firm is obligated,
as an employer, to make job
assignments in a nondiscriminatory manner.30
It also is
obligated as an employment agency to make
job referrals
in a nondiscriminatory manner. The
staffing firm's
client is liable if it sets discriminatory
criteria for
the assignment of workers. The following
question and
answer explore these issues in detail.
7.
If a worker is denied a job assignment by a staffing
firm because
its client refuses to accept the
worker for
discriminatory reasons, is the staffing
firm liable?
Is the client?
a. Staffing Firm
The staffing firm is liable for its discriminatory
assignment
decisions. Liability can be found on
any of the
following bases: 1) as an employer of
the workers
assigned to clients (for discriminatory
job assignments);
2) as a third party interferer
(for discriminatory
interference in the workers'
employment
opportunities with the firm's client);
and/or 3)
as an employment agency for
(discriminatory
job referrals).31
The fact that a staffing firm's discriminatory
assignment
practice is based on its client's
requirement
is no defense. Thus, a staffing firm
is liable
if it honors a client's discriminatory
assignment
request or if it knows that its client
has rejected
workers in a protected class for
discriminatory
reasons and for that reason refuses
to assign
individuals in that protected class to
that client.
Furthermore, the staffing firm is
liable if
it administers on behalf of its client a
test or other
selection requirement that has an
adverse impact
on a protected class and is not job-
related for
the position in question and consistent
with business
necessity. 42 U.S.C. § 2000e-2(k).
b. Client
A client that rejects workers for discriminatory
reasons is
liable either as a joint employer or
third party
interferer if it has the requisite
number of
employees to be covered under the
applicable
anti-discrimination statute.
Example 8: A staffing firm that
provides job placements for nurses
receives a job order from an
individual client for a white nurse
to provide her with home-based
nursing care. The firm agrees to
refer only white nurses for the job.
The firm is violating Title VII,
both as an employment agency for its
discriminatory referral practice and
as an employer for the
discriminatory job assignment. The
client is not covered by Title VII
because she does not have fifteen or
more employees.
Example 9: A temporary employment
agency receives a job order for a
temporary receptionist. The client
requires that the individual
assigned to it speak English
fluently because a large part of the
job entails communication with
English-speaking persons who call
the client or who come to the
client's work place. The agency
assigns an Asian American individual
who speaks English fluently, but
with an accent. The client insists
that the agency replace her with
someone who can speak unaccented
English. The agency complies with
that request and sends an individual
who speaks English fluently with no
accent.
The Asian American individual files
a charge with the EEOC. The
investigator determines that English
fluency was necessary for the job.
However, he further determines that
CP's accent does not interfere with
her ability to communicate and that
she has effectively performed
similar jobs. The investigator
properly concludes that both the
client and the staffing firm are
liable for terminating CP on the
basis of her national origin.
Example 10: A staffing firm provides
machine operators to its clients.
One of its clients requires that all
workers assigned to it pass a
certain paper and pencil test. The
firm administers the test to its
available workers and refers only
those who pass the test. An African
American individual who is denied an
assignment with the client files
charges against both the staffing
firm and its client, alleging that
administration of the test results
in the disproportionate exclusion of
African Americans. An investigation
shows that the test does have an
adverse impact on African Americans
and does not accurately measure the
skills that are necessary for job
performance. Therefore, both the
staffing firm and its client are in
violation of Title VII.
DISCRIMINATION AT WORK SITE
A client of a staffing firm
is obligated to treat the
workers assigned to it in a nondiscriminatory
manner.
Where the client fails to fulfill this
obligation, and
the staffing firm knows or should know
of the client's
discrimination, the firm must take corrective
action
within its control.32 The following
questions and
answers explore these issues in detail.
8.
If a client discriminates against a worker assigned by a
staffing
firm, who is liable?
Client: If the client qualifies as an employer of
the worker
(see Questions 1 and 2), it is liable
for discriminating
against the worker on the same
basis that
it would be liable for discriminating
against any
of its other employees.
Even if the client does not qualify as an employer
of the worker,
it is liable for discriminating
against that
individual if the client's misconduct
interferes
with the worker's employment
opportunities
with the staffing firm, and if the
client has
the minimum number of employees to be
covered under
the applicable discrimination
statute.
See Question 3.
Staffing Firm: The firm is liable if it
participates
in the client's discrimination. For
example,
if the firm honors its client's request to
remove a
worker from a job assignment for a
discriminatory
reason and replace him or her with
an individual
outside the worker's protected class,
the firm
is liable for the discriminatory
discharge.
The firm also is liable if it knew or
should have
known about the client's discrimination
and failed
to undertake prompt corrective measures
within its
control.33
The adequacy of corrective measures taken by a
staffing
firm depends on the particular facts.
Corrective
measures may include, but are not
limited to:
1) ensuring that the client is aware of
the alleged
misconduct; 2) asserting the firm's
commitment
to protect its workers from unlawful
harassment
and other forms of prohibited
discrimination;
3) insisting that prompt
investigative
and corrective measures be
undertaken;
and 4) affording the worker an
opportunity,
if (s)he so desires, to take a
different
job assignment at the same rate of pay.
The staffing
firm should not assign other workers
to that work
site unless the client has undertaken
the necessary
corrective and preventive measures to
ensure that
the discrimination will not recur.
Otherwise,
the staffing firm will be liable along
with the
client if a worker later assigned to that
client is
subjected to similar misconduct.34
Example 11: A temporary
receptionist placed by a temporary
employment agency is subjected to
severe and pervasive unwelcome
sexual comments and advances by her
supervisor at the assigned work
site. She complains to the agency,
and the agency informs its client of
the allegation. The client refuses
to investigate the matter, and
instead asks the agency to replace
the worker with one who is not a
"troublemaker." The agency tells
the worker that it cannot force the
client to take corrective action,
finds the worker a different job
assignment, and sends another worker
to complete the original job
assignment.
The client is liable as an employer
of the worker for harassment and for
retaliatory discharge.
The temporary employment agency also
is liable for the harassment and
retaliatory discharge because it
knew of the misconduct and failed to
undertake adequate corrective
action. Informing the client of the
harassment complaint was not
sufficient -- the agency should have
insisted that the client investigate
the allegation of harassment and
take immediate and appropriate
corrective action. The agency
should also have asserted the right
of its workers to be free from
unlawful discrimination and
harassment, and declined to assign
any other workers until the client
undertook the necessary corrective
and preventive measures. The agency
unlawfully participated in its
client's discriminatory misconduct
when it acceded to the client's
request to replace the worker with
one who was not a "troublemaker."
If the replacement worker is
subjected to similar harassment, the
agency and the client will be
subject to additional liability.
Example 12: A staffing firm
provides computer services for a
company that has more than 15
employees. The staffing firm
assigns an individual to work on-site