No Finger Pointing: Staffing Firms and their Clients Can Both Get Sued for Disability Discrimination Under the ADA

Author: Melissa Burdorf, XpertHR Legal Editor

The Equal Employment Opportunity Commission (EEOC) filed a disability discrimination lawsuit against both Staffmark Investment LLC and Sony Electronics, Inc., claiming that both companies violated the Americans with Disabilities Act (ADA) when they terminated Dorothy Shanks, an employee with a prosthetic leg, because of her disability.

According to the complaint, Staffmark, a staffing agency, assigned Shanks to work on a temporary job for Sony. All of Shanks's supervisors were Sony employees. On her second day of work, Shanks was advised by Staffmark that she was being taken off the Sony assignment because "they" did not want anyone bumping into her. Staffmark purportedly assured Shanks that she would be placed on another assignment where she could sit. Staffmark never sent Shanks to another job assignment even though Shanks repeatedly called looking for work.

While employers can never isolate themselves from disability discrimination lawsuits, in this case, Staffmark and Sony may have lessened their chance of a suit if they kept the following points in mind:

Employment agencies will not avoid liability for discrimination under the ADA by claiming they are following an employer/client's orders (in this case Sony's orders), nor can employers (such as Sony) avoid liability by saying the employee was really working for the employment agency. Both staffing firms and their clients have joint responsibilities under the ADA to their contingent workers.
Employers should be careful not to make generalized assumptions about whether an employee has a disability - an employee can be protected under the ADA if an employer treats or "regards" the employee as if he or she has a disability, even if they do not. Gossip or presumptions about an employee's medical condition can form the basis of a regarded as claim.

Because the EEOC has a current focus on disability discrimination, employers should take action to comply with the ADA immediately.