Remember last week when The Emplawyerologist talked about co-employment liability under Title VII of the Civil Rights Act of 1964? (Click here if you missed that one.) Let’s return to Sensational Staffing and Tricia the “temp.” Suppose Tricia is or claims to be disabled (for now the specific disability does not matter). What happens if Sensational sends you Tricia, and you reject Tricia’s application? What if Tricia asks for a certain accommodation for her disability? What are your responsibilities toward a “temp” under the ADA? What are the staffing company’s responsibilities? What if you use Perfect PEO or Splendid Subcontractors? Do those responsibilities change? This week The Emplawyerologist will tackle those questions after the jump!
Adding some more facts, suppose Tricia is applying for a clerical position. Tricia comes to her interview in a wheelchair. Your office is on the second floor. You tell Sensational that you do not want any applicants with physical handicaps. You reason that they are more likely to get hurt on the job, and you cannot take the chance. Sensational says “OK” and Tricia doesn’t get the job. Tricia files an EEOC charge against you and Sensational. You figure Sensational is “on the hook”, but why you? Sensational is her employer. Are you? If you have 15 or more employees, then, under the ADA, you qualify as an employer. By rejecting her application, you are exercising certain employer rights or privileges toward Tricia, and so you are likely a co-employer. (Click here for review of co-employment.) What does that mean for you? Tricia has a right to file an EEOC charge against both you and Sensational. What if you I have 10 employees on my payroll? Temporary employees must be counted too. If you still do not have 15 or more employees, you may still have ADA liability though. As with Title VII, the ADA contains a provision that those who interfere with a disabled person’s employment prospect are also liable.
Suppose, however, you told Sensational not to send you anyone with physical handicaps, Sensational complies and refuses to send Tricia on the interview, but you don’t know that Sensational screened her out based on her disability. Wouldn’t liability rest entirely with Sensational? If Tricia can prove that you knew or should have known about the discrimination and did nothing to stop it, you may still be liable. Since you told Sensational not to send you anyone with physical disabilities, Tricia likely has a viable argument that you had reason to know of the discriminatory activity, that you not only did not do anything about, but you were a major cause of it in the first place. Looks like you are still in the case! How do we know that under these and the above facts you have potential liability? The EEOC in its Enforcement Guidance on the Application of the ADA to Contingent Workers Placed by Temporary Agencies and Other Staffing Firms says so. EEOC v. Sony Electronics Inc., case number 1:12-cv-09628 also tells us so. In that case, both Sony and the staffing firm, Staffmark, were on the hot seat for allegedly terminating a temporary inspector because she was an amputee. Staffmark ultimately settled with the EEOC for $100,000. Since the employee did not know of Sony’s involvement in the decision until months later, the employee did not file her charge against Sony until later. Sony tried to get the charge against it dismissed based on this “late filing” but the court said “no”. The case against Sony is apparently still pending. Similarly, Huysen and Sedona Group together paid $920,000 to settle a lawsuit that included allegations of ADA violations. You can find the EEOC’s press release here to learn more.
What about a contractor-subcontractor relationship? Can the contractor be liable for ADA violation vis a vis a subcontractor employee? If the contractor behaves like an employer to that employee (e.g. sets the schedule, directs the work, controls the work environment) then, the contractor is in essentially the same position as a staffing agency client.
Let’s change things up some more. Suppose Tricia gets the interview and is offered the job. She cannot, use the stairs to get to the second floor. She can perform the essential functions of the job with a reasonable accommodation. Who is responsible for providing that reasonable accommodation. The general rule is that both the staffing firm and the client should split whatever costs are involved. If you, the client, refuse, and if Sensational can prove that it cannot reasonably bear those costs by itself, Sensational likely escapes liability — but you might not. What determines whether an accommodation is “reasonable”? Circumstances. Suppose, for example you have offices on the first floor and you could, with some effort rearrange things so that Tricia can work on that floor instead. That may be a reasonable accommodation. If it might entail some costs to do that, you and Sensational should split those costs. If, however, you only have a second-floor office, the first floor is occupied by someone else, and there is no elevator in the building, do you now have to build a ramp or install an elevator or stair master? What if this is a two or three-week position? Under those circumstances, that would not be a reasonable accommodation and, telling Tricia that the job is not a fit (and documenting everything) should not trigger liability for either of you.
Remember Perfect PEO? Suppose Perfect performs certain administrative/HR functions for you? Is Perfect impacted when an employee or applicant claims you violated Title I of the ADA? Are you? Assuming you have fewer than 15 employees, are these employees even protected under the ADA? The answer is often “yes”, because the PEO is a co-employer of many other employees, and those employees are now part of that larger workforce. That certainly means Perfect could be liable, but what about you. Remember, even if you do not meet the definition of “employer” under the ADA, if you do something that interferes with that employee’s employment opportunities, you are still liable under the ADA.
So there you are! If you are a co-employer your ADA responsibilities will extend even to some employees that are not on your payroll. If you have questions, consult either with your in-house counsel or competent employment counsel.
What about wage and hour issues? Can you be responsible when a temp or another company’s employee alleges wage and hour violations? If so, how and when? Find out next week!
Disclaimer: This post’s contents are for informational purposes only, are not legal advice and do not create an attorney-client relationship. Always consult with competent local employment counsel on any issues discussed here.
Click here to learn more about Janette Levey Frisch, author of The Emplawyerologist.
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