The Americans with Disabilities Act of 1990 and Temporary Staffing--General Liability
Overview
The Americans with Disabilities Act of 1990 (ADA) protects disabled applicants and employees from discrimination in the workplace. The ADA is a law of broad application, applying to nearly all employers with 15 or more employees, including state and local governments. The ADA also applies to "employment agencies." The ADA does not apply to the federal government, Indian tribes, or certain private clubs; however, disabled federal employees and applicants are protected from discrimination by other laws.
Under the ADA, employers and employment agencies may not discriminate against disabled workers who can perform the essential functions of a job with reasonable accommodation in any of the following aspects of employment:
- Hiring
- Pay
- Firing
- Promotions
- Training
The Equal Employment Opportunity Commission (EEOC) has been tasked with enforcing the ADA.
Temporary Staffing Firms and Clients and ADA Applicability
Typically, a temporary staffing firm recruits and screens applicants, hires workers, and places them for temporary assignments with clients of the firm. Once they are placed, the workers are generally supervised by the client, which typically is responsible for the general working conditions of the assignment. Under this typical scenario, the worker is an "employee," and both the temporary staffing firm and the client qualify as "employers" of the worker. As such, both entities are subject to potential employer liability when provision of the ADA are violated.
ADA Liability under the Typical Temporary Staffing Firm Arrangement
Under this typical arrangement, where the firm and client are both employers, the EEOC has determined that both the firm and the client may be liable under the ADA for:
- The firm or the client's own disability discrimination against the worker or
- Discrimination by the other entity if the firm or the client either:
> participated in the discrimination or
> knew or should have known of the discrimination and failed to correct the problem.
ADA Liability Where Staffing Firm or Client is not an "Employer"
Even where an agency or a client does not qualify as an employer under the ADA, usually because it does not sufficiently control the worker's employment conditions, it is subject to potential ADA liability.
The EEOC has determined that staffing firms that are not employers may be subject to ADA liability where they:
- Interfere with a worker's rights under the ADA or
- Qualify as an "employment agency" by referring potential employees to employers or provide employers with the names of potential employees.
Similarly, clients of staffing firms that interfere with a disabled worker's ADA rights are also subject to ADA liability.
Remedies
Under the ADA, violators may be subject to an enforcement action filed by the EEOC. They may also be subject to a private civil action filed by the worker. If the firm or the client is unsuccessful in such an action, it may be liable to the worker for:
- Front pay
- Back pay
- Attorney fees
- Hiring
- Promotion
- Litigation Costs
Where both the firm and the client have violated the ADA, they are jointly and severally liable for damages to the worker. This means that the worker may recover the full amount of front pay or back pay or attorney fees from either violator.
Copyright 2011 LexisNexis, a division of Reed Elsevier Inc.
