Seyfarth Synopsis: In a case filed May 8 in federal court in New Jersey, the EEOC sued an IT staffing firm for age discrimination on behalf of a candidate seeking placement into an position with one of the firm's clients. If the startling allegations are true, the case may be a lay-up for the EEOC, but even if the allegations are inaccurate, staffing firms and companies that utilize staffing resources should view this as a reminder about the process by which they evaluate candidates, and what NOT to do with potentially unlawful instructions from clients.
In EEOC v. Diverse Lynx, Inc., 3:17-CV-03220 (D.N.J), the EEOC alleges that Kadami Vijaisimh posted his resume on the website Diverse Lynx (DL) maintains for job applicants. The EEOC alleges that at around the same time Vijaisimh posted his resume, DL was sourcing candidates for an IT project management opportunity available at one of its clients.
According to the complaint, Vijaisimh had substantial IT project management experience and was contacted by DL regarding the position. After several discussions with Vijaisimh regarding the details of the position at issue, DL allegedly wrote Vijaisimh this e-mail:
Thanks for your reply. I check the details of [sic] you. And you [sic] born in 1945. So I discussed with the client side. Age will matter. That why I can't [sic] be able to submit your profile to client side.
Predictably, DL did not refer Vijaisimh to its client for the IT project management spot and the EEOC alleges it did not do so because of his age.
Taking these facts as true, it is hard to imagine a better case for the EEOC, and it is easy to see why the agency brought it. But, putting that aside, the alleged actions of the staffing firm in this case serve as a stark reminder of the obligations of staffing firms to comply with employment laws as they work with their clients and candidates to fill open positions.
Here are the top takeaways from the case and some suggested strategies:
Takeaway 1: In evaluating a candidate, a staffing firm's recruiters cannot use candidates' profiles for the purposes of excluding candidates based upon protected statuses. It is not clear from the complaint what information led DL's recruiter to conclude that Vijaisimh was born in 1945. One reasonable presumption is that it was the result of a search of social media sources, such as Facebook, LinkedIn, or Twitter, all of which harbor dangers as a screening tool. Another reasonable presumption is that it was the result of online searches of publicly available information, which can often be unreliable.
Takeaway 2: Beware about making assumptions about a client's wishes. In this case, if the DL recruiter initiated a conversation with the client about whether age would "matter" for this IT project management job, the staffing firm has not only placed itself in potential trouble, it has also set its client up for a possible legal disaster. It is not clear in this case whether the client actually cared about age, or if that was simply the recruiter's intuition, but either way, the candidate's age (specifically or in general) should never have been raised or discussed with the client.
Takeaway 3: A client's wish is not a staffing firm's command. Sometimes a client may make an up-front request for candidates who fit a particular paradigm without considering how the EEOC or plaintiff's lawyers might construe the language. Requests like "seeking recent college grads", "need someone who fits in with our youthful culture", "inexperienced candidates have been the most successful", or "fresh blood is needed to replace our aging workforce" are not necessarily intended to be age-based – a recent college grad could be over 40, for example – but they are the sort of quotes that raise the eyebrow of enforcement agencies and may not play well with a jury.
Remedy 1: Publish a written policy.
Staffing firms should memorialize their policies prohibiting employment discrimination against those placed to work with clients, and make the policy available to applicants, employees, and clients.
Remedy 2: Train, train, and train.
Training employees on how and whether to use social media or other online searches is essential for every employer and staffing firm. Too much can be learned (and put to bad use), and too much of what is learned may be inaccurate.
Staffing firm employees would benefit from training to recognize the types of job "requirements" and messages that could be perceived – rightly or wrongly – as potential problems.
In addition to training to identify potential pitfalls in requests, staffing firm employees would benefit from training on the tools to correct an issue before it becomes a problem. At a minimum, staffing firm employees should be trained to eliminate questionable phrasing from any job posting or search materials and to fill the position with the most qualified candidate. Even better, train and empower employees to appropriately counsel (and, where needed, correct) the client who presents a job requisition in less-than-ideal fashion.
Remedy 3: Management support.
Front line staffing employees will be better able to fulfill their duties with management support. Staffing firm managers should remind their employees to take the extra time to look at how job requirements have been documented to ensure compliance with the letter and spirit of EEO laws. Staffing firm managers also should lead by example,
Remedy 4: Staffing agency / client partnership.
In addition to having and sharing a written policy, staffing firms should consider making an explicit statement about the important of equal employment opportunity in its contractual arrangements with clients, ensuring that jobs are filled by the best candidates, without regard to protected characteristics. Periodic reminders to clients will help reinforce this message.
Finally, staffing firms should approach equal employment opportunity matters as an area where their expertise can serve their own and their clients' interests. Avoiding potentially problematic requests, and addressing them with clients when questions arise, set up all concerned for future success when staffing.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.