In nearly every employment law training seminar I present to staffing firms, I’m asked some form of the following: What should I do if a client makes a discriminatory request for workers; i.e., only men, only young, etc.?
The standard response, of course, should be that the request is unlawful, the staffing firm will not entertain the request, and the client will need to take its business elsewhere. This response should eliminate any EEOC concern of discriminatory behavior by the staffing firm. A recent court decision, however, has opened the door for the EEOC to investigate all of a staffing firm’s clients if some of those clients make such requests.
In EEOC v. Aerotek, Inc., 7th Cir., No. 15-1690, 3/4/16, theappellate court affirmed the enforcement of a subpoena by the EEOC could open the door for the EEOC to investigate all staffing firm clients.
Aerotek is a staffing firm with approximately 300 offices across the country. During an investigation of Aerotek’s possible age-related employment discrimination, the EEOC reviewed Aerotek’s database and found numerous discriminatory job requests made by clients at 62 of Aerotek’s offices. For example, one request noted that the client and his employees were in their twenties and that "a person in their 40s or 50s would not be a cultural fit." Another client was looking for "young energetic [sic] guys with some sports knowledge and good attention to detail." Still another sought a "fresh college grad."
Through a subpoena, the EEOC sought the names of all clients from those 62 offices and all workers placed with those clients. This amounted to roughly 22,000 clients. The staffing firm objected to the subpoena as a fishing expedition by the EEOC, and because it would interfere with the company’s on-going relationship with its clients. The EEOC argued that it wanted to investigate whether Aerotek’s clients made discriminatory requests that were not recorded in Aerotek’s database.
In affirming the enforcement of the subpoena, the court found that the EEOC has broad authority to investigate matters to determine whether a violation has occurred. Furthermore, the agency is permitted to “investigate merely on suspicion that the law is being violated, or even just because it wants assurance that it is not.”
What does this mean for staffing firms?
It means more training and more record-keeping. Client account managers need to be able to identify discriminatory job requests, and need to document the request and the staffing firm’s response. It may seem that the easy answer would be to disregard an unlawful request and not make a record; however, the EEOC can investigate “merely on suspicion that the law is being violated.” Whether it’s intentional or not, clients make discriminatory requests and the EEOC knows it. Once a staffing firm acknowledges that it has received such requests, it must have an accurate record of every request and every response. Otherwise, the staffing firm’s clients may be subjected to a broad investigation similar to those of Aerotek.