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Anti-Discrimination Protection for Temporary Workers

Spring 1998

On December 3, 1997, the Equal Employment Opportunity Commission (EEOC) issued Policy No. 915.002 which provides guidance as to how federal investigators apply various federal anti-discrimination laws to temporary workers.

Temporary workers, also known as contingent workers, include workers in both the public and private sectors who are employed through temporary employment agencies and contract firms. Temporary employment agencies traditionally provide temporary workers to businesses on an "as needed" basis, while contract firms typically provide longer term services such as security services, janitorial, data processing, food service, and others.

The policy guidance was proposed to clarify that the anti-discrimination provisions of Title VII of the Civil Rights Act of 1964 (Title VII), the Age Discrimination and Employment Act (ADEA), the Americans With Disability Act (ADA), and the Equal Pay Act (EPA) protect temporary employees from discrimination from both the service agencies and the client of the that agency.

The EEOC first makes a threshold determination as to whether the alleged injured party is an employee or an independent contractor. If the alleged injured party is an employee, the agency determines how many employees to attribute to the client (including temporary service workers). If it is determined that either the temporary service agency or the client has the necessary number of employees to fall under the jurisdiction of the various anti-discrimination acts, an analysis is performed as to who has the direction and control of the work done by the alleged injured party.

If the client receiving the services of the worker through a temporary service agency has direction and control of the work of the alleged injured party, the client is deemed to be an employer for purposes of application of the anti-discrimination laws.

When both the temporary service employer and customer exercise control, they can be deemed joint employers. If a company is determined to be a joint employer it can be partially liable for discrimination if the temporary service agency discriminates.

Thus, actions may be brought against such businesses and entities for alleged discrimination to temporary service workers and contract workers. Damages can take the form of back pay, front pay, compensatory damages, and punitive damages depending on which anti-discrimination law applies.

Business owners and administrators of public entities should be aware of these risks, but the policy merely reinforces the theme of the anti-discrimination laws that individuals in the workplace must be treated in a non-discriminatory manner.

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