Disability Lawsuits Against Staffing Firms on the Rise
What staffing firms need to know—a quick reference guide
When surveying lawsuits brought against staffing firms, employment discrimination cases predominate. Each day staffing firms across the US are sued under one of the federal or local human rights statutes, typically involving claims that arise from the actions of the client, not the staffing firm. Clients and staffing firms are generally considered co-employers when it comes to employment discrimination, and these lawsuits always include the client and agency as co-defendants. Based on observations here at SLN, the fastest-growing segment is cases that assert a failure to accommodate disabilities under the Americans with Disabilities Act ("ADA").
What the Americans with Disabilities Act requires
One of the most difficult human resource challenges for a staffing firm is responding to an assigned worker's request for a disability accommodation. Whenever there is such a request, it is advisable to promptly engage your human resources department or employment attorney.
The ADA requires employers with 15 or more employees to provide "reasonable accommodations" for qualified individuals with disabilities, that is, those with "physical or mental impairments that substantially limit major life activities," so long as they can perform the "essential functions of the job," with or without accommodation. In the case of temporary workers on assignment, this obligation applies to both the client and the staffing agency, something clients do not always understand.
What is an impairment that substantially limits major life activities?
The ADA aims to address challenges faced by those with enduring, long-term disabilities, not temporary conditions. Nor is it intended to cover simple physical characteristics such as height, weight (usually), or eye color.
Limits to employer accommodation obligations
Employers are not obligated to change a worker's "essential job duties."
Accommodations are not required if they would cause “undue hardship,” meaning "significant difficulty or expense" for the employer. There is no fixed standard or benchmark for making this determination.
What is a reasonable accommodation?
Potential accommodations (assuming no "undue hardship" on the employer or change in "essential duties") may include:
• Making facilities accessible (e.g., ramps, accessible restrooms)
• Job restructuring or modified schedules
• Providing assistive technology
• Allowing service animals
• Offering leave for treatment or reassignment to a vacant role
• Permitting telework or remote work arrangements
• Adjusting or providing specialized equipment, such as ergonomic chairs or screen readers
• Offering reserved parking spaces close to building entrances
• Modifying workplace policies, like dress codes or break schedules, to accommodate specific needs
• Reassigning non-essential job duties that an employee is unable to perform due to a disability
• Allowing additional breaks for medical needs or medication management
Factors considered in determining undue hardship on the employer
Factors to be considered include:
• Nature and Cost of Accommodation: How expensive or complicated is the accommodation?
• Overall Financial Resources: What are the financial resources of the facility involved, and the entire organization?
• Size of Business: How many employees does the business have, and what is the effect of the accommodation on expenses and resources?
• Effect on Operations: Would the accommodation significantly disrupt business operations?
• Type of Operation: What does the company or organization do, and how would the accommodation impact its function?
• Number, Type, and Location of Facilities: How many facilities does the organization have, and where are they located?
The EEOC has published internal enforcement guidelines that can be consulted to understand the Agency's interpretation of what constitutes an undue hardship:
Issuing Authority This guidance document was issued upon approval by vote of the U.S. Equal Employment Opportunity Commission.
By now you can see that proper handling of an accommodation request can be complex, especially in the context of a staffing relationship. Training personnel to recognize and internally report disability accommodation requests is important. Coordination and consultation with the client are necessary. This may include explaining to the client that its duty to an assigned temporary worker is the same as it is to one of their own workers under the same circumstances.
The interactive process
When accommodation is requested, both the staffing firm and the client must engage in a collaborative, case-by-case dialogue with the worker to identify effective solutions. Because the client controls working conditions, the greater weight of this burden usually falls on the client. Employers may ask for medical documentation if the disability or need is not obvious.
The staffing firm's duties
How should a staffing firm approach disability accommodation requests by assigned workers? The EEOC has issued internal enforcement guidance that offers some assistance:
The staffing 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.
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; and
2) asserting the firm's commitment to protect its workers from unlawful
harassment and other forms of prohibited discrimination; and
3) insisting that prompt investigative and corrective measures be
undertaken; and
4) affording the worker an opportunity to take a different job assignment at the same rate of pay.
The best way to summarize the staffing firm's obligation is this: Use your best efforts, as a representative of the worker, to obtain the client's compliance with the ADA's requirements.
The retaliation trap
The ADA protects employees from retaliation for requesting accommodation. Retaliation claims are frequently joined with failure to accommodate claims when a discharge is involved. Carefully consider the circumstances before taking adverse action against an individual who has requested an accommodation.
Sample staffing cases
Below is a sampling of recent disability claims brought against staffing firms and their clients.
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