The EEOC and Temporary Employees: What Employers Need to Know
November 23, 2020
The EEOC and Temporary Employees: What Employers Need to Know
U.S. Equal Employment Opportunity Commission (EEOC) laws were passed under Title VII of the Civil Rights Act of 1964. That act and these specific EEOC provisions protect applicants and employees from discrimination. All organizations, whether in the private or public sector, are held to these standards.
Unfortunately, since the requirements under the EEOC are vast, ensuring compliance can be complicated. This is especially true for employers who employ workers who do not fall in to the typical 9-5 or full-time, permanent employee landscape.
In recent months, the EEOC has investigated several claims of discrimination, harassment, and failure to accommodate temporary employees. We will discuss these cases below to provide some guidelines for employers as they manage their temporary workers.
In EEOC v. Johnson Controls, Inc. (JCI) and ManpowerGroup US (Manpower), both defendants were investigated by the EEOC for sex discrimination and retaliation, a settlement was announced on November 6, 2020.
Manpower assigned Victoria Stafford as a temporary employee to JCI. The EEOC found that Stafford told her Manpower supervisor that a JCI employee was sexually harassing her, making derogatory comments about women, and refusing to perform work tasks he deemed to be “women’s work.”
Stafford was eventually fired after a confrontation between herself, her harasser, and another male employee who came to her defense. Although Manpower placed Stafford in another temporary assignment, she still incurred significant wage loss and emotional distress.
If you employ temporary workers, and they harass your employee, or your employee harasses them, you may have a third-party sexual harassment claims to worry about.
Though the staffing firm is the primary employer, your business will likely share some responsibility for any harassment that occurs on your watch. Unfortunately, many staffing agencies do not train their employees regarding sexual harassment before assigning them to a job. Additionally, as the primary employer, staffing agencies may instruct the temporary employee to report any instances of sexual harassment directly to them. This is risky, since you may never hear about the problem or be given a chance to resolve it and end up blindsided.
Thus, as an employer, it is advisable that you: 1) Communicate with your staffing agency partners your preferred method of handling harassment claims AND 2) Put an onboarding policy in place to, at a minimum, educate temporary workers on what constitutes harassment and how to report it.
“Temporary workers are entitled to the same protections against sexual harassment as permanent employees,” Andrea G. Baran, an EEOC regional attorney, said. In the end, JCI and Manpower agreed to pay $40,000, hire outside consultants to review their sexual harassment policies and procedures, and conduct annual training on sexual harassment.
Disability & Accommodations
The EEOC’s investigation found that Remedy Intelligent Staffing, LLC (Remedy) and Lornamead Inc. failed to provide reasonable accommodations to a long-term temporary employee.
David Gaiser II was hired by Remedy and assigned to work at Lornamead. During his employment, Gaiser was diagnosed with a chronic kidney condition. Despite his condition, Gaiser was assigned tasks that required frequent bending and twisting, which aggravated his kidney condition and caused severe pain. As a result, Gaiser presented several accommodation options that would better enable him to perform his job duties.
Instead, of considering these accommodations, Lornamead requested that Remedy end Gaiser’s three-year assignment. Remedy ended the contract and failed to place Gaiser at another job.
Reasonable accommodations must be given to all eligible part-time, full-time, permanent, temporary, or probationary employees.
In many cases, the staffing agency and your business could both be responsible for providing reasonable accommodations if you are acting as “joint employers” as defined under the ADA.
Staffing agencies often hire and pay temporary workers and may even withhold their taxes and provide benefits, while your business might take control of directing and supervising work performance and providing expectations regarding day to day tasks. If this is the scenario you find yourself in, you will likely be considered joint employers.
In the case of joint employers, you and the staffing agency are each independently liable for providing reasonable accommodations. The simplest way to handle accommodations in a joint employer situation is to work collaboratively with your staffing partners. Better yet, including terms on how to handle accommodations can be added to your staffing agency contracts.
In the end, both Remedy and Lornamead paid a fine and agreed to provide accommodation request training to all employees, temporary and permanent.
Pregnancy & Gender
LogistiCare Solutions LLC, in Phoenix, committed a violation when they fired temporary employees because they were pregnant. The staffing company, Human Capital Management, Inc. (HCM) also failed to take corrective action after it learned about the terminations.
HCM assigned Tiffany Lewis and at least one other pregnant employee to LogistiCare as Customer Service Representatives. One week into training, LogistiCare fired them because the company believed the employees would not be able to comply with its attendance policy due to their pregnancies. HCM knew why LogistiCare wanted to terminate these employees but complied anyway.
The Pregnancy Discrimination Act within Title VII prohibits discrimination based on pregnancy, childbirth or any other related medical condition. According to the EEOC, pregnancy discrimination claims have been steadily rising over the last 20 years with over 3,100 cases filed in 2017. In 2018 one of the nation’s biggest employers, Walmart, was entangled in a class action suit alleging the same.
In fact, EEOC Regional Attorney (Phoenix District) stated, “Employers should not make employment decisions based on assumptions about what pregnant employees can and cannot do. Pregnancy discrimination remains a significant barrier for women in the workplace, and the EEOC will always be dedicated to fighting it.”
As scrutiny of this issue continue to rise, here are some best practices you can implement to prepare and protect yourself from exposure:
– Keep Your Employee Handbook Up To Date: Have an employee handbook in place that includes, among other things, a policy covering leaves of absences and accommodation procedures for pregnant employees.
– Update Job Descriptions: Make sure all job descriptions are up-to-date and identify job functions that may need modification for pregnant employees.
– Train Your Staff: Regularly train managers and employees about their rights and responsibilities.
– Be Understanding: When an employee discloses that they are pregnant; offer your support. Do not say anything that implies the pregnancy is a burden. If you unsure how to handle the conversation, talk to your human resources staff beforehand.
– Engage in the Interactive Process: Discuss pregnancy accommodations. For example, adjusted hours for morning sickness or doctor appointments, modification to physical job duties, additional breaks throughout the day, etc with your employee.
As you can see, federal law provides the same protections to permanent and temporary employees, and both employers and employment agencies can be held responsible for discrimination and have a duty to manage its effects. EEOC Regional Attorney Mary Jo O’Neill emphasized that “as more companies choose temporary labor to fill their staffing needs, it is important for both those companies and employment agencies to be aware of their obligations to prevent discrimination and appropriately respond to allegations.”
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