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EEOC Issues Guidance on the Application of the ADA to Contingent Workers

January 5, 2001

On December 27, 2000, the U.S. Equal Employment Opportunity Commission (the "EEOC") issued new enforcement guidance clarifying the application of the Americans with Disabilities Act (the "ADA") to contingent workers.


Background

In 1997, the EEOC issued enforcement guidance regarding the application of equal employment opportunity ("EEO") laws to contingent workers (e.g., temporary, contract and leased workers who are placed in job assignments by temporary employment agencies or staffing firms). In accordance with this enforcement guidance, the EEOC frequently deems both the staffing firm and the client the "employer" of contingent workers for purposes of federal EEO laws. This means that both the staffing firm and the client may be held liable for violating the rights of contingent workers under federal employment discrimination laws. It is not surprising, then, that the EEOC's newly-issued enforcement guidance indicates that both the staffing firm and the client have ADA obligations with respect to contingent workers.

Important Information for Companies that Rely on Staffing Firms to Provide Contingent Workers

The EEOC's enforcement guidance provides that:

How to Avoid ADA Liability Arising From Contingent Workers' Claims

Any company utilizing a staffing agency to provide contingent workers is well advised to assume that it will bear joint responsibility for violations of EEO laws committed by the staffing agency. Accordingly, the staffing agency should be contractually bound to comply with all applicable EEO laws, and, more specifically, to provide reasonable accommodations to job applicants as required by the ADA. Ideally from the client's perspective, its contract with the staffing agency will also provide that the staffing agency is responsible for paying for any accommodations required by disabled contingent workers in the course of their assignment to the client.

Most importantly, to avoid liability under the ADA for a staffing agency's violations of that statute, the client must take corrective action within its control if it knows the staffing agency is discriminating against disabled workers or job applicants.

For more information about the EEOC's new enforcement guidance or about the ADA more generally, please contact any of the Firm's attorneys.