Monday, December 10, 2012

EEOC rejects staffing company’s “just following orders” defense

The EEOC recently announced that it filed a disability discrimination lawsuit on behalf of an employee fired because of her prosthetic leg. It not only brought the lawsuit against the company on whose behalf she had been performing work, but also the staffing agency that had placed her there.

The staffing agency had told the employee it was removing her from the warehouse position because the company did not want anyone bumping into her.

The EEOC, however, did not put any stock into the staffing company’s “we-were-just-following-orders” defense. From the EEOC’s news release:

“Staffing agencies cannot avoid liability for discrimination by saying they were just following an employer-client’s orders, nor can employers avoid liability by saying the victim was ‘really employed’ by their staffing agency,” said John Hendrickson, the EEOC’s regional attorney in Chicago. “It’s a pretty good bet that a worker with a prosthetic leg is always going to be protected by the ADA, and an equally good bet that flat-out firing the worker for that reason is going to violate the law. This scenario should not be all that difficult for employers to avoid. If they don’t, the EEOC will be there to make things right.”

For businesses, this story is a good reminder that staffing agencies and the employers that use their services often share liability under the various EEOC laws. If you are a staffing company, consider writing indemnification clauses into your agreements to help insure against liability when the company for whom you are staffing discriminates. Otherwise, there is a good chance that the law will not protect you from your customer’s discrimination.