(704) 706-9292

EEOC holds Agency may be liable for discrimination by staffing firm. Complainant filed an Equal Employment Opportunity (EEO) complaint alleging discrimination on the basis of sex (female/pregnancy) and disability (pregnancy/severe morning sickness) when she was harassed and ultimately fired after alerting the Agency that she was pregnant. The Agency dismissed Complainant’s complaint for failure to state a claim, reasoning that Complainant was not an employee of the Agency but rather of the staffing firm. Complainant appealed.

On appeal, the EEOC’s Office of Federal Operations (OFO) reminded the Agency that “joint employer” applies to employers that each exercise sufficient control of an individual. In the instant case, the OFO noted that the analysis for the Agency was straight forward in that the Agency had complete control over how Complainant performed her job. The OFO held that the Agency had the requisite right to control the means and manner of Complainant’s work regardless of the fact that the paycheck came from an outside organization, and was therefore a joint employer of Complainant. The OFO reversed the dismissal and remanded the case for further processing.

Serita B. v. Dep’t of the Army, EEOC Appeal No. 0120150846 (Nov. 10, 2016) https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120150846.txt

Attorney Kirk J Angel represents federal employees and EEO investigations and hearings before the EEOC and MSPB. You can set a free 15 minute consultation with him right on the website.