Employers who turn to temporary agencies to supply workers often mistakenly assume they aren’t responsible for harassment or bias problems because the agency is the workers’ employer. But a new case underscores that both you and the temp agency can be held liable for discrimination involving a temp.
Former Boyfriend Harasses Temp
Norrell Corp., a temporary agency, placed Laura Mathieu with its client, Gulfstream Aerospace Corp. in Long Beach, where Mathieu’s former boyfriend, Richard Fluck, was employed. Once Mathieu began working, Fluck taunted and harassed her and made it difficult for her to do her job.
Mathieu complained about Fluck’s behavior to her Gulfstream supervisor and to Gulfstream’s HR department. The only action Gulfstream allegedly took was to tell Mathieu and Fluck to stay away from each other.
Problems Reported to Temp Agency
Six months later, Mathieu told Norrell’s customer service manager, Susan Dunn, she was having problems with her former boyfriend, who was being rude and slandering her to others.
Dunn contacted Gulfstream HR representative Jody Cornelius to check on the situation. Cornelius said Fluck was told to stop the behavior and that Mathieu hadn’t complained since. Dunn called Mathieu to tell her that Fluck had already been admonished, and Mathieu confirmed to her there had been no further problems with Fluck.
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Temp Loses Assignment
A few weeks later, Mathieu was informed she was being released from her assignment in a reported cost-cutting move. Mathieu then told Dunn she believed she was being let go because she complained about Fluck. Dunn spoke to Rhonda London, another Gulfstream HR representative, who insisted the layoff was economic and that she hadn’t heard anything to indicate it was related to the Fluck situation. In fact, London claimed she was previously unaware of problems between the two. Mathieu’s termination from Gulfstream was finalized.
Lawsuit Follows
Mathieu sued Norrell and Gulfstream for harassment and retaliation. Gulfstream settled with Mathieu. But Norrell argued it wasn’t liable for harassment because it took appropriate corrective measures within its control once it learned of the situation. And, Norrell contended, it wasn’t liable for retaliation because it didn’t know or have reason to know Gulfstream’s layoff decision was discriminatory. A trial court sided with Norrell and dismissed the harassment and retaliation claims.
Temp Agency on the Hook
A California Court of Appeal has now ruled that although the harassment claim against Norrell was properly dismissed, the retaliation claim can go to a jury.
When a temporary employee working at a client site is harassed by an employee of the client, both the agency and client are considered to be employers. Both employers are liable only if they knew or should have known of the conduct and didn’t take immediate and appropriate corrective action. Under this standard, Norrell wasn’t liable for the harassment because Mathieu waited six months to complain, and once she did, the agency took appropriate measures by ensuring the conduct had stopped.
However, said the court, Norrell was potentially liable for retaliation. Once Mathieu told Dunn she believed the layoff was retaliatory, Dunn didn’t pursue the matter beyond a quick phone call with Gulfstream and didn’t recommend that Gulfstream retain Mathieu. There was also evidence that Norrell may have directly retaliated by not placing Mathieu in a comparable position with another client after the layoff.
Avoiding Claims
This ruling focuses on the temp agency’s liability for harassment and retaliation involving a temp at the client site, but it’s important to note the client-employer was also liable but settled the lawsuit. Thus, if you use temp agencies, you need to know how to protect your organization against claims of harassment or bias from temporary workers. Here are some tips:
- Review your policies. Make sure your sexual harassment and anti-discrimination policies clearly cover temps. Stress in your equal employment opportunity and harassment training sessions that the rules against harassment and discrimination extend to temps.
- Investigate all problems. If a temp reports harassment or other discrimination by one of your employees, investigate immediately. If the complaint is valid, take prompt measures to remedy the situation.
- Verify agency practices. Before using a temp agency, find out whether it has a strong program to respond to harassment complaints. Make sure you understand how the agencies’ practices will interface with yours if a temp employee complains.