In EEOC v. Kelly Services, Inc., the Equal Employment Opportunity Commission filed suit against staffing firm Kelly Services in a Title VII religious discrimination/accommodation case. The case involved a Muslim woman who refused to remove her headscarf, or khimar, even though the commercial printing company where she was to be placed had a safety rule prohibiting headwear. Kelly refused to refer the woman for employment there.
The U.S. Court of Appeals for the Eighth Circuit rejected the EEOC's claim that Kelly unlawfully discriminated against a candidate because of her religion by refusing to refer her for placement with a client. The court held that the EEOC could not establish discrimination because it could not prove that there was an available position to which the candidate could have been referred, thus it could not show she had suffered an "adverse action." The court further held that the agency's refusal to refer the candidate due to its client's safety rule was a legitimate and non-discriminatory business reason and the EEOC had no evidence the reason was a pretext for unlawful discrimination.
What is interesting to the end users of contingent labor, however, is that the court hinted that, though it ruled in favor of the staffing firm, it may have decided differently had the case been against the firm's client. If the case had been against the staffing firm's client, then the client's ability to accommodate the worker would have been at issue, and there was testimony from an employee of the client that the worker could have been accommodated.
Although Title VII requires "employers" to accommodate workers' religious practices unless so doing would be an undue hardship, the court held that "employment agencies" are not required to demonstrate that the company to which they would be referring a worker would suffer an undue hardship if it accommodated that worker.
Even when using temporary labor supplied by staffing firms, employers should be mindful that they may still have a duty to provide reasonable accommodations (for religion and disability) to contingent workers, as well as traditional, and may have to satisfy other employment law obligations with respect to temporary workers as well (e.g., maintaining a work environment free from unlawful discrimination and retaliation).
Religious discrimination claims are on the rise at the EEOC and state human rights agencies. To help avoid such claims, companies should train managers and supervisors on how to recognize religious accommodation requests from employees and develop internal procedures for processing such requests. Consider all accommodation requests in good faith, and work with the employee to the extent possible in an effort to identify workable solutions.