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Staffing Agency Faces Federal Charges Under ADA Title I – Blog #69

Reasonable Accommodation for the Hiring Process

Perceived WORK-RELATED Disability

Regarded As

Agency Administered Employment Test

Deemed “Too Slow”

Unknown Physical Demands of the Essential Function in Question

Reasonable Accommodation for the Hiring Process

Staffing Agency is the agent of the Employer

The U.S. Equal Employment Opportunity Commission (EEOC) recently announced a lawsuit filed against Adecco USA, Inc. (Adecco), a staffing agency. The EEOC Newsroom press release indicated that Adecco violated federal law by refusing to offer a candidate for employment at a production facility based on his actual and perceived disability. To facilitate learning, I have re-organized the issues raised in the press release. The apparent non-compliance issues are listed above.

Core Issues

At the core of the suit are three ADA Title I issues: a request for reasonable accommodation during the hiring process (but not necessarily on-the-job), the administration of an employment test, and on-going responsibility for compliance by an employer’s agent (the staffing agency).

Employment Testing Without Knowledge of the Physical and Cognitive Demands of Essential Functions

According to the EEOC’s lawsuit, in April 2016, a worker with learning and other mental disabilities visited Adecco’s office in Corry, Pennsylvania, to apply for a food packaging and distribution position with an Adecco customer. The lawsuit further states that when the worker was told he would have to take an employment test, he informed Adecco officials of his difficulty with reading comprehension. At this point, the staffing agency is preparing to determine whether or not this worker does NOT have “qualified individual” status. This is an important point as the use of post-offer employment tests is to screen out those not able to safely perform the demands of the test with or without reasonable accommodation. A POET test must compare the individual to the actual demands of the job, not SWG demands. SWG stands for “Scientific Wild Guess.”

Reasonable Accommodation for the Hiring Process and Employment Testing

The request for accommodation was official when the applicant requested that the test be read to him. Adecco initially declined his request, causing him to fail the test. The lawsuit alleges that Adecco subsequently agreed to retest the disabled worker by reading the test to him and he passed. This initial interaction demonstrated the company’s disregard or knowledge of the third prong of ADA Title I. As a side note, the company would not have had to provide the accommodation because they had already violated one of the key tenets of the definition of disability.

Perceived WORK-RELATED Disability and Regarded As

The EEOC charged that an Adecco official then told the disabled worker that he was “too slow” for the production job and instead offered to place the worker in a car-washing position while other applicants were offered the job that the disabled worker sought. EEOC charges that Adecco violated the disabled worker’s rights under the Americans with Disabilities Act (ADA) by refusing to hire him for the type of work he desired because of actual and perceived disability.

The label of “too slow” reinforces the problem of making adverse employment decisions without knowledge of the demands of the job. It also raises the issue of regarding his reading ability being a work-related issue. This is another key mistake in both the reasonable accommodation and employment testing process.

The interactive reasonable accommodation process assumes that the disability in question is a work-related barrier. In this case, having the ability to read is the point of judgment. In fact, if there is no reading demand in the production job, then it is not a work-related issue. Further, if it is a working-related issue, then we move through the reasonable accommodation interactive process in good faith. Labels such as “too slow, too fat, too old, too weak, and too stiff” must give way to specific tests of the abilities behind speed, fitness, age, strength, and flexibility.

Staffing Agency as an Agent of the Employer

One of the good things to come out of this situation is that the hiring employer did not become involved in this action. In cases where a contingent worker agency (staffing agency) places workers in an employer’s facility, both the agency and the employer can become embroiled in errors made by either entity. Join my December 6th webinar for an hour of discussion on staffing agencies.

Summary

As I have paraphrased here, such alleged conduct violates the ADA, which prohibits discrimination based on actual and perceived disabilities. The EEOC filed suit (EEOC v. Adecco USA, Inc., Civil Action No.1:18-cv-00250-AJS) in the U.S. District Court for the Western District of Pennsylvania, Erie Division, after first attempting to reach a prelitigation settlement through its conciliation process.

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