Under the EEOC guidance, contingent workers can be covered by federal discrimination laws if they qualify as "employees" of the staffing firm, the client to whom they are assigned or both. Thus, staffing firms and the clients to whom they assign workers may not discriminate against the workers on the basis of race, color, religion, sex, national origin, age, or disability.
The key issue in determining whether the worker is an employee of the staffing firm, the client or both is whether the staffing firm and/or the client "exercise control over the worker's employment." The guidance lists 16 factors to review in making this determination, no one of which is determinative. Rather, EEOC looks at the totality of the circumstances.
If both the staffing firm and the client qualify as the worker's employer, they are treated as a "joint employer." This means either entity may be held fully liable for an act of discrimination. Thus, the worker could recover damages from either entity alone or in combination.
A staffing firm or its client also can be held liable for unlawfully interfering in an individual's employment opportunities even if it does not exercise sufficient control to be considered an employer. Thus, a client who does not exercise the requisite degree of control could be held liable for requesting a different worker if the request is based on age, sex, race, etc. Likewise, a staffing firm that does not retain sufficient control could be held liable for complying with a client's discriminatory requests.
The guidance also makes clear that in a joint employer situation, both the staffing firm and the client must include the contingent worker in its head count for purposes of determining coverage. (Title VII and ADA apply to employers with 15 or more employees; ADEA applies to employers with 20 or more employees.)