The laboratory technician position that CP is offered is scheduled to begin in three days. If CP is unable to provide the results of tests for Hepatitis B and C before then, the offer may be revoked.
Where possible, staffing firms should notify applicants ahead of time of medical information or examinations needed for certain types of work assignments. This enables applicants to obtain in advance the information needed for specific assignments that may need to be filled on short notice. Example 5: Same facts as example 3, except that Tempsmart notifies CP at the interview that he will have to be tested for Hepatitis B and C before he begins most laboratory technician assignments.
A week later, at P. Because of Tempsmart's advance notice, CP has already been tested by his own physician. The physician faxes the results to Tempsmart in time for CP to start the next day. Yes, if the questions or examinations are job-related and consistent with business necessity. Additionally, such questions or examinations of staffing firm workers while they are on a work assignment are permitted if they are required by another Federal law or regulation.
The questions or examinations must not exceed the scope of the specific medical condition and its effect on the staffing firm worker's ability, with or without reasonable accommodation, to perform essential job functions or to work without posing a direct threat. The ADA requires employers to provide reasonable accommodation to the known physical or mental limitations of otherwise qualified individuals with disabilities who are employees or applicants for employment, unless it would impose undue hardship.
Typically, only the staffing firm is an applicant's prospective employer 37 during the application process because it has not yet identified the client for which the applicant will work. In such cases, only the staffing firm is obligated to provide a reasonable accommodation for the application process. Example 6: Workfast, a staffing firm, requires all applicants to fill out a job application form. CP, who is substantially limited in her ability to perform manual tasks because of muscular dystrophy, tells a Workfast associate that she will need assistance in filling out the application form.
Workfast alone is obligated to provide the accommodation, absent undue hardship. Where a client sends an applicant to apply for work with it through a staffing firm, the client will usually qualify as a prospective employer and, as such, will be obligated along with the staffing firm to provide reasonable accommodation for the application process. Example 7: EconoShop sends all applicants for temporary positions to apply through Workfast, a staffing firm.
EconoShop and Workfast are both obligated to provide reasonable accommodations for the application process for individuals with disabilities who are applicants for temporary positions with EconoShop.
While a client is generally not required to provide reasonable accommodations for the application process, a client that qualifies as a joint employer of staffing firm workers may still violate the ADA if it continues to obtain workers through a staffing firm although it knows or has reason to know that the firm does not provide reasonable accommodation for the application process.
This is because a client that qualifies as a joint employer of staffing firm workers may be liable for a staffing firm's discrimination if the client knows or has reason to know of the discrimination and fails to take corrective action within its control. Example 8: A federal agency hires graphic artists through Sleek Design, a contract firm.
Individuals with disabilities have complained to the federal agency that Sleek Design has denied them reasonable accommodations needed for the application process. Assuming that the federal agency qualifies as the joint employer of staffing firm workers, it will violate the Rehabilitation Act if it continues to obtain workers through Sleek Design.
Because each qualifies as an employer of the staffing firm worker, each is obligated to provide a reasonable accommodation needed on the job, absent undue hardship, 39 if it has notice of the need for the accommodation. CP informs Just-jobs that he will need a sign language interpreter for a one-hour safety orientation program that XYZ Corp.
Just-jobs and XYZ are both obligated to provide a reasonable accommodation. It may be mutually beneficial for the staffing firm and its clients to specify in their contracts with one another which entity will provide reasonable accommodations that are required on the job or how the costs of accommodations will be shared.
In this way, the question of which entity will provide an accommodation can be anticipated and resolved before a request is actually received, thereby eliminating unnecessary delay in providing the accommodation. A staffing firm and its clients may, through a contract, allocate responsibility for providing reasonable accommodations in any way they choose.
Any contractual arrangement between a staffing firm and a client, however, does not alter their obligations under the ADA. Some temporary jobs become available on short notice and last for only a brief period of time, during which certain tasks must be completed. In such cases, a staffing firm or client can establish undue hardship by showing that the work assignment had to be filled on short notice and that the accommodation could not be provided quickly enough to enable the staffing firm worker to timely begin or complete a temporary work assignment.
Example CP applies with All-temps for craft work. CP wears a prosthesis in place of her missing left hand and is substantially limited in her ability to perform manual tasks. In mid-October, All-temps offers CP a temporary assignment, to begin the next day, as a wood cutter with Masters, a manufacturer of small wooden toys. The assignment is to last for two weeks, during which time Masters needs to complete production of a specified number of toys in anticipation of holiday sales that will begin in November.
CP tells All-temps that she can perform the job with a reasonable accommodation -- an inexpensive adaptive device that she has used to perform similar work for other employers. Because neither All-temps nor Masters has the device, it must be ordered, and it will take about a week to receive.
The accommodation results in an undue hardship for both All-temps and Masters. Example Same facts as example 10, except that the temporary work assignment does not begin for three weeks.
Because there is adequate time for All-temps and Masters to provide the requested reasonable accommodation, neither can show undue hardship. The fact that a staffing firm and its client have a very short period of time within which to provide an accommodation will not alone constitute undue hardship. For example, it is often possible to quickly provide qualified sign language interpreters for people who are deaf. Resources are also available to provide readers for people who are blind on short notice.
Staffing firms and their clients should anticipate these types of requests for reasonable accommodations and plan for how to provide them expeditiously when a request is made.
See Question 7 above. In some instances, parties or witnesses may have made notes, prepared memoranda, or otherwise made a written record of past events. For example, in a harassment charge, the charging party may have made notes about an incident of harassment after it happened. These records of past events are important in investigations and especially in preparation for trials, which may not occur until years after the events. They are important because they may act as reminders for the witnesses who can recall the incident in detail after referring to the written record of it.
In other situations, the individual may not recall the events from the notes and may not be able to testify to what happened without relying on the written record. In this situation, the individual does not have an independent memory of the event in spite of being able to refer to the notes. If that occurs, the notes themselves may become evidence of the event they describe.
Information regarding the written record of the incident should be sought. First, it should be determined whether the witness has firsthand knowledge of the information in the writing. It is not necessary that the individual have written the note, but s he must have personal knowledge of the event and the writing must accurately reflect that knowledge. If the document is a collaboration of two or more people, the others should be interviewed also.
Second, the statement must have been made at or near the time of the event and while the witness had an accurate memory of it. Therefore, it is important to get the date of the incident and the date the statement was made.
Finally, the person should be able to vouch for the accuracy of the statement at the time it was recorded. For example, where a respondent raises in defense to a charge that further prosecution of it is barred by Kremer v. Chemical Construction Corp. Where the parties have testified in a union grievance proceeding or an unemployment hearing, official transcripts of that testimony would be necessary.
Official records are reliable documentary evidence where the proper procedure for obtaining them has been followed. Generally, some official certificate by the responsible official swearing to their authenticity will or should be affixed to the documents. The procedure will vary according to the document sought and the locale.
Where the Respondent meets the criteria to be regulated by the Office of Federal Contract Compliance Programs OFCCP , that agency should be contacted to determine whether it has recently investigated a similar complaint against or conducted a compliance review of the Respondent. Further, federal agencies that provide grants or funds may provide information regarding a respondent.
The Commission publishes the "Resource Directory of Equal Employment Compliance Information" that names these agencies and tells how information can be obtained from them. Sections 90 and 91 should be consulted regarding the obligation to notify or consult with other agencies about complaints they have referred to us for investigation.
The burden of proof is a concept that addresses the responsibilities of the parties to a lawsuit regarding the presentation of evidence and the persuasiveness of the evidence presented.
How the parties can meet their burdens will be dependent upon the facts of a particular situation. The burden of proof involves not one burden, but two. One is the responsibility to produce satisfactory evidence of a particular fact that is in issue; that is material, relevant, and reliable evidence of the fact.
The other is the burden of persuasion and it refers to the responsibility to convince the trier of fact that the alleged fact is true. Generally, the burden to produce evidence, commonly called the burden of evidence or the burden of going forward, is upon the party who asserts the fact. For instance, in a Title VII failure to hire lawsuit involving an individual plaintiff alleging disparate treatment, the burden of production generally operates as follows.
Once the plaintiff has produced evidence to support those four factors, an inference of discrimination is created and the burden of production then shifts to the defendant employer. In this case, the employer's burden is to articulate a legitimate, nondiscriminatory reason for its decision. Once the employer has done so, the burden of production again shifts to the plaintiff to present evidence that the employer's explanation is a pretext. That a party has a duty to present evidence supporting its assertions does not mean that the evidence will be in that party's possession; it may be in the possession of the opposing party or of a third party.
For example, where an employee alleges wage discrimination, the evidence to support that allegation may be the payroll records which, more often than not, will be in the control of the employer. The burden of evidence concept was developed for use in lawsuits, which are adversarial proceedings.
A Commission investigation is not adversarial; rather, the Commission's investigator acts as a neutral fact finder. Case Law Updates of significant employment liability cases through IRS Employee vs.
Employee C. Fax: Fax outside U. Thank you for subscribing! If you have any questions feel free to call us at ZING or email us at vipaccounts benzinga. The staffing firm should not assign other workers to that work site unless the client has undertaken the necessary corrective and preventive measures to ensure that the discrimination will not recur.
Otherwise, the staffing firm will be liable along with the client if a worker later assigned to that client is subjected to similar misconduct. She complains to the agency, and the agency informs its client of the allegation.
The client refuses to investigate the matter, and instead asks the agency to replace the worker with one who is not a "troublemaker. The client is liable as an employer of the worker for harassment and for retaliatory discharge. The temporary employment agency also is liable for the harassment and retaliatory discharge because it knew of the misconduct and failed to undertake adequate corrective action.
Informing the client of the harassment complaint was not sufficient -- the agency should have insisted that the client investigate the allegation of harassment and take immediate and appropriate corrective action. The agency should also have asserted the right of its workers to be free from unlawful discrimination and harassment, and declined to assign any other workers until the client undertook the necessary corrective and preventive measures.
The agency unlawfully participated in its client's discriminatory misconduct when it acceded to the client's request to replace the worker with one who was not a "troublemaker. Example A staffing firm provides computer services for a company that has more than 15 employees. The staffing firm assigns an individual to work on-site for that client. When the client discovers that the worker has AIDS, it tells the staffing firm to replace him because the client's employees fear infection.
The staffing firm alerts the client that they are both prohibited from discriminating against the worker, and that such a discharge would violate the ADA. The client nevertheless continues to insist that the firm remove the worker from the work assignment and replace him with someone else. The staffing firm has no choice but to remove the worker. However, it declines to replace him with another worker to complete the assignment because to do so would constitute acquiescence in the discrimination.
Furthermore, the firm offers the worker a different job assignment at the same rate of pay. The client is liable for the discriminatory discharge, either as an employer or third party interferer.
The staffing firm is not liable because it took immediate and appropriate corrective action within its control. If a staffing firm sends its employee on a job assignment with a federal agency and the individual is subjected to discrimination while on the assignment, is the federal agency liable? Is the staffing firm? What procedures should the individual follow in filing a complaint? The federal agency is liable for discriminating against the worker if it qualifies as an employer of the worker.
If the federal agency does not qualify as an employer of the staffing firm worker under the criteria in Questions 1 and 2, it will not be liable for discriminating against that worker under the statutes enforced by the EEOC. A federal agency is liable for employment discrimination under these statutes only where it has sufficient control to be deemed an employer of the worker. See Question 4. The staffing firm is liable if it participated in the federal agency's discrimination or if it knew or should have known of the discrimination and failed to intervene, under the principles discussed in Question 8, above.
If the staffing firm worker seeks to pursue a complaint against the federal agency as his or her employer, s he should contact an EEO Counselor at the federal agency within 45 days of the date of the alleged discrimination. If the individual also seeks to pursue a claim against the staffing firm, s he should file a separate charge with an EEOC field office.
In such circumstances, the EEOC investigator should alert the individual as to the different time frames and procedures in the federal and private sectors.
Its clients share that obligation. Under the EPA, men and women must receive equal pay for equal work. It is job content, not job titles, that determines whether jobs are substantially equal. Specifically, a sex- based wage disparity violates the EPA if the jobs are in the same establishment, require substantially equal skill, effort, and responsibility, are performed under similar working conditions, and if no statutory defense applies.
Wage differences that are not based on sex, but on bona fide distinctions between temporary and permanent workers, can be justified under the EPA as based on a "factor other than sex.
Example A temporary employment agency assigned CP female to a temporary job as a hospital aide. CP discovered that the agency had also assigned a male to a temporary job as an "orderly" at the same hospital at a higher wage. CP files charges against the agency and the hospital, alleging that her job and that of the male orderly were substantially equal, and that the wage disparity violated the Equal Pay Act and Title VII.
CP's charge against the hospital also challenges a disparity between her wages and those of permanent male aides and orderlies at the hospital. The investigator determines that the temporary employment agency and the hospital were joint employers of CP and that both entities had control over the rates of pay for the hospital aide and orderly jobs. The investigator also determines that the temporary aide and orderly jobs were substantially equal under EPA standards, and that no defense applies.
Therefore, he finds that the agency and the hospital are both liable under the EPA and Title VII on the claim that the temporary aide and orderly should have received the same wage. The investigator further determines that the wage differential between the temporary and permanent aide and orderly jobs was based on a factor other than sex, since the hospital paid all its temporary workers less than permanent workers filling the same jobs, regardless of sex.
Therefore, "no cause" is found on this latter claim. If the Commission finds reasonable cause to believe that both a staffing firm and its client have engaged in unlawful discrimination, how are back wages and damages allocated between the respondents? Where the combined discriminatory actions of a staffing firm and its client result in harm to the worker, the two respondents are jointly and severally liable for back pay, front pay, and compensatory damages.
This means that the complainant can obtain the full amount of back pay, front pay, and compensatory damages from either one of the respondents alone or from both respondents combined. The investigator should contact the legal unit in his or her office for advice in determining how to allocate damages between the parties.
Computation of Monetary Relief The first step is to compute lost wages including back and front pay ; compensatory damages for both pecuniary loss and emotional distress; and punitive damages. Back Pay, Front Pay, and Past Pecuniary Damages The next step is to determine the allocation between the respondents of back and front pay and past pecuniary damages. The charging party can obtain the full amount of these remedies because they are not subject to the statutory caps.
The Commission can pursue the entire amount from either the staffing firm or the client, or from both combined. Application of the Statutory Cap on Damages The final step is to determine each respondent's liability for compensatory and punitive damages subject to the statutory caps.
The total amount paid by a respondent for compensatory damages for emotional distress and future pecuniary harm, and for punitive damages, cannot exceed its statutory cap. In applying the caps to the actual allocation of damages, the following principles apply: For compensatory damages subject to the caps, each respondent is responsible for any portion of the total damages up to its cap. For punitive damages, each respondent is only responsible for the damages which have been assessed against it and only up to its applicable statutory cap.
After the fact-finder has determined the amount of compensatory damages for emotional distress and future pecuniary harm, and the amount of punitive damages for which either or both respondents are liable, these amounts should be allocated between the two respondents in order to yield the maximum payable relief for the charging party.
If the total compensatory damages are within the sum of the two respondents' caps, the damages should be allocated to assure that the full amount is paid. If one or both respondents are liable for punitive damages as well as compensatory damages, and the total sum of damages is within the applicable caps, the damages should be allocated, both between the respondents, and between compensatory and punitive damages for each respondent, to assure full payment.
Thus, each respondent should pay the full amount of punitive damages for which it is liable, and any portion of the compensatory damages up to its statutory cap. If the sum of damages exceeds the sum of the applicable caps, the damages should be allocated, both between the respondents and between compensatory and punitive damages for each respondent, to maximize the payment to the charging party.
CP was subjected to persistent and egregious racial epithets by two supervisory employees of the store. CP complained several times to both a higher level manager at Value and to a supervisor at Staff Serve, but neither took any action to address the problem. After being subjected to egregious racial epithets that involved his family, CP informed the manager at Value and the supervisor at Staff Serve that the situation was intolerable. These individuals told CP to stop complaining and to live with these epithets as the price of holding the job.
CP stopped reporting to work and asked Staff Serve to assign him elsewhere, but the firm failed to do so. CP was unable to find work for eight months. CP files a charge against Staff Serve and Value. The investigator determines that both are liable for the racial harassment and constructive discharge. CP can thus obtain the full amount of damages due him, with neither respondent's liability exceeding its cap.
The investigator works with CP and the respondents to determine how to allocate the damages between compensatory and punitive damages. The full amount of back-pay remains payable since it is not subject to the caps. Coverage 1. Is the charging party CP an employee or an independent contractor?
Consider the factors listed in Question and Answer 1 of this guidance and all other aspects of CP's relationship to the firm and its client. If CP is an independent contractor, dismiss the charge for lack of jurisdiction. If CP is an employee, determine who qualifies as his or her employer.
It is possible that both the staffing firm and its client qualify as joint employers. In that regard consider the following: 2.
Is CP an employee of the staffing firm? Is CP an employee of the firm's client? Even if the client does not qualify as CP's employer, it is still covered under the applicable anti-discrimination statute if it interfered on a discriminatory basis with CP's employment opportunities with the staffing firm and has the requisite number of employees.
However, a federal agency can only be held liable as an employer, not as a third-party interferer. Determine which of these individuals qualified as employees rather than independent contractors. Does the evidence show that the staffing firm denied CP a job assignment for discriminatory reasons? Does the evidence show that the client set discriminatory criteria for assignments by the staffing firm?
Client: Does the evidence show that the client discriminated against CP? However, if the client is a federal agency it can only be held liable as an employer.
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