Case illustrates the regulatory gauntlet staffing firms must navigate today.
The Equal Employment Opportunity Commission has filed a lawsuit against Elwood Staffing Services in Salt Lake City. The Agency alleges that Elwood violated the Americans with Disabilities Act by failing to engage in an interactive process with an employment candidate to determine if she could perform the duties of a Product Assembler. It appears that the Elwood recruiters assumed that the candidate, who only had one hand, would not be able to pass the pre-employment manual dexterity test, and therefore did not offer her a chance to try before rejecting her for the position.
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[display_mode mode=”member-only”]Analysis: The ADA requires employers to make “reasonable accommodations” for applicants and personnel with disabilities. The EEOC has interpreted this to require “a flexible, interactive process” with the employee to identify accommodations that may enable the employee to perform the job. If the employer makes the assumption that there can be no suitable accommodation, it risks incurring claims of this nature. Claims filed by the EEOC are particularly difficult to resolve, because the government has unlimited resources and no particular incentive to compromise. Here, the Agency is clearly out to make a point.
The ADA is a very technical and demanding statute, and requires deep human resource skills to successfully navigate. Whenever a job candidate with a potentially restricting disability appears, an immediate HR consult is usually in order. Ordinary hiring practices and assumptions do not apply when the ADA is in play. For example, in order to comply, an employer may at times be required to incur extra cost, or incur lower worker productivity.
Staffing firms may be particularly vulnerable to ADA claims because of the natural desire of their personnel to avoid making life difficult for their clients. It is the clients who must make the accommodations and perhaps incur lower productivity (it the EEOC’s position that the client is legally required to offer accommodations to staffing company personnel). Sophisticated clients understand this and usually cooperate. Less sophisticated clients may not. In such a case, it is important to educate the client about its joint responsibility to comply with the law. In addition, the client’s pain can perhaps be reduced if the agency offers to contribute to the cause by reducing its rate. A lower margin is certainly better than finding your firm in the sights of a federal agency on a mission.
Staffing legal veteran Bill Josey issues timely reports on current legal events directly affecting the industry, with insightful commentary and analysis. From government legal actions to non-compete battles, Staffing Legal News keeps you in the know.[/display_mode]
