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Today’s example of overt discrimination is sponsored by Diverse Lynx, LLC, a Princeton, New Jersey-based IT staffing firm. In this case, Kadambi Vijaisimh posted his résumé to Diverse Lynx’s website in response to a posting for an information technology project management job. Vijaisimh had substantial information technology project management experience which made him qualified for the job opening. A recruiter from Diverse Lynx contacted and discussed the job with Vijaisimh. The recruited then apparently submitted Vijaisimh as a candidate to the employer and then subsequently relayed this message back to Vijaisimh: “Thanks for your reply. I check the details of [sic] you. And you [sic] born in 1945. So I discussed with the client side. Age will matter. So that’s why I can’t [sic] be able to submit your profile to client side.” Obviously, Vijaisimh was not hired.

Yep, that would be direct evidence of age discrimination, which is unlawful under the Age Discrimination in Employment Act of 1967 (“ADEA”).

Because our employment lawyers have recently addressed unlawful failure to hire claims, we are not going to use this example to rehash that here. (Best Law Read: How Do You Prove An Unlawful Failure To Hire Claim?; Employment Discrimination: Refusal to Hire). Instead, we turn our attention to the potential liability that staffing agencies face for the discrimination or discriminatory preferences of their clients. In this case, it was in the recruiter’s best interest to place Vijaisimh, which is the only way the recruiter gets paid, and the recruiter was just likely a messenger of a discriminatory practice of its client (or potential client). Certainly, the recruiter could not force its client to hire Vijaisimh. So, would Diverse Lynx, as the staffing agency, be liable for delivering this message? Here’s a hint – it paid $50,000 to resolve the claims. Read on for why and what Diverse Lynx should have done to avoid liability.

Can the staffing agency that placed me be liable for discrimination on the job or for wrongful termination?

Best Employment Lawyer Answer: Maybe, but it will depend on the facts and jurisdiction where the adverse employment actions took place.

A staffing agency or temp agency can always be held liable for its own conduct of discrimination under anti-discrimination laws such as Title VII of the Civil Rights Act of 1964, Americans with Disabilities Act (“ADA”) and the ADEA. Title VII prohibits all forms of discrimination in workplace based on race/color, religion, gender/sex (including pregnancy and LGBTQ+ status), and national origin.

In some jurisdictions, the staffing agency can also be held liable under certain circumstances as the “joint employer” for the discriminatory acts of employer where the employee is placed. On this point, in Nicholson v. Securitas Sec. Servs. USA, Inc., 830 F.3d 186, 189 (5th Cir. 2016), the United States Court of Appeals for the Fifth Circuit held that a “staffing agency is liable for the discriminatory conduct of its joint-employer client if it [1] participates in the discrimination, or [2] if it knows or should have known of the client’s discrimination but fails to take corrective measures within its control.”

The Compliance Manual provided by the Equal Employment Opportunity Commission (“EEOC”) further supports the concept of joint employer liability. Specifically drafted with the context of temporary employment agencies placing employees to on jobsites, the Compliance Manual provides:

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.

See EEOC, No. 915.002, Enforcement Guidance: Application of EEO Laws to Contingent Workers Placed by Temporary Employment Agencies and Other Staffing Firms, at 2260 (1997) (Emphasis added).

Along this line, United State Circuit Courts of Appeal have similarly held that both entities (staffing/temp agency and the placed employer) can be held liable as joint employers liable under Title VII provided the evidence shows that there is shared control over the terms and conditions of an employee’s employment. See Faush v. Tuesday Morning, Inc., 808 F.3d 208, 215 (3d Cir. 2015); Butler v. Drive Auto. Indus. of Am., Inc., 793 F.3d 404, 408 (4th Cir. 2015); EEOC v. Skanska USA Bldg., Inc., 550 F. App’x 253, 256 (6th Cir. 2013); Arculeo v. On-Site Sales & Mktg., LLC, 425 F.3d 193, 197-98 (2d Cir. 2005); Bristol v. Bd. of Cnty. Comm’rs, 312 F.3d 1213, 1218 (10th Cir. 2002) (en banc); Graves v. Lowery, 117 F.3d 723, 727 (3d Cir. 1997).

Most recently, in Felder v. United States Tennis Ass’n, 27 F.4th 834, 838 (2d Cir. 2022), joined the majority of circuits allowing joint liability, holding:

in alleging an employer-employee relationship, an employee is not squarely limited to claims against his or her formal employer. Pursuant to the “joint employer doctrine,” an employee may assert Title VII liability against a “constructive employer”—an entity that shares in controlling the terms and conditions of a plaintiff’s employment. See Arculeo v. On-Site Sales & Mktg., LLC, 425 F.3d 193, 198 (2d Cir. 2005). Most commonly, the “joint employer doctrine” applies “where the plaintiff’s employment is subcontracted by one employer to another, formally distinct, entity.” Gulino, 460 F.3d at 378. Although this Court has not previously identified a specific test for determining what renders an entity a “joint employer” in a Title VII case, today we join our sister Circuits in concluding that non-exhaustive factors drawn from the common law of agency, including control over an employee’s hiring, firing, training, promotion, discipline, supervision, and handling of records, insurance, and payroll, are relevant to this inquiry.

On the other hand, in Torres-Negrón v. Merck & Co., 488 F.3d 34, 40 n.6 (1st Cir. 2007), the United States Court of Appeals for the First Circuit provided a more limited holding: “[T]he ‘joint employer’ concept recognizes that the business entities involved are in fact separate but that they share or co-determine those conditions of employment. … [A] finding that two companies are an employee’s ‘joint employers’ only affects each employer’s liability to the employee for their own actions, not for each other’s actions.” (Emphasis in original).

What should staffing agencies do to avoid joint employer liability?

Best Employment Discrimination Attorney Answer: In my humble opining, the only way that Diverse Lynx avoids liability is to directly tell its client that such age requirements are illegal and that it will not participate in such conduct. If the client refuses to yield, the staffing agency should terminate the work on that posting (if not all work with that client) and inform the candidate to apply directly as it no longer is working with the client.

How do I sue a staffing agency for discrimination?

Best Workplace Discrimination Law Firm Answer: As you can see, suing staffing agencies is very complex and requires specialized skill and knowledge. So, if you found this blog by searching “I was wrongfully fired by a temp agency” or “I am facing race discrimination on my temp job”; “the staffing agency that placed me won’t do anything about my report of” race, national origin, gender, age, religion or disability discrimination; or even think that you might need an employment lawyer, then it would be best to call the right attorney to schedule a free and confidential consultation. Call our lawyers in Cleveland, Columbus, Detroit, Toledo and Cincinnati to get help now. Spitz, The Employee’s Law Firm and its experienced attorneys are dedicated to protecting employees’ rights and solving employment disputes.

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