By Peter G. Christian |
Toni Halleen and I recently presented at the annual Minnesota Contingent Staffing Conference on the topic of sexual harassment prevention. We appreciated the opportunity to discuss with staffing agencies and service providers how the anti-discrimination laws protect the contingent workforce (i.e. non-permanent workers hired by organizations on an on-demand basis).
Here’s the main takeaway: while the major employment laws that prohibit sexual harassment and discrimination in the workplace – such as Title VII of the Civil Rights Act, the Equal Pay Act, and the Americans with Disabilities Act – use language that specifically protect “employees” and exclude “independent contractors,” these laws have largely been interpreted by courts to apply to any worker over whom an employer has some level of control.
Put simply, contingent workers have a right to a workplace free from sexual (and racial) harassment too. Both the staffing agency and/or the host employer are likely liable for illegal harassment if they knew of it and failed to take remedial action within their control.
Many are surprised to hear that the staffing agency itself can be held liable for harassment that occurs at a host employer’s worksite. However, the guidelines provided by the Equal Employment Opportunity Commission are clear that a staffing agency has several obligations that, if not met, will result in liability. For example, once a staffing agency becomes aware that its worker believes she/he has been sexually harassed, the agency must take action within its control to stop the harassment, assert the worker’s right to be free from discrimination, give the worker the opportunity to take a different job at the same rate of pay, and refuse to assign other workers at the host employer until the host employer undertakes necessary corrective and preventive measures. Similarly, a host employer must also take reasonable steps to prevent harassment and immediately remedy it or else the host employer can also be held liable. Such steps include promptly and substantively investigating and responding to reports of harassment, communicating policies that provide clear and effective reporting mechanisms for contract workers, and committing to maintaining a workplace free from illegal harassment.
Peter G. Christian is an employment litigator who is committed to protecting the rights of individuals in the workplace. As an advocate who takes pride in representing a wide range of employees – from top level executives to blue collar laborers – Peter has secured significant victories for an array of clients in many areas of employment related litigation, and against some of the biggest corporations in the world.