Employment Agencies Can Illegally Discriminate Too
Many workers find jobs through employment agencies. They may act as an outsourced human resources department to fill jobs. That critical role in the hiring process is covered by state and federal anti-discrimination laws, so a business need not employ someone to be liable under the law. They can be an employment agency helping select employees.
If you believe you’ve been discriminated against by an employment agency, the MBJ Law Group is here to help. We represent job applicants and employees who are the victims of illegal employment discrimination, no matter who’s responsible. Call our team of employment discrimination attorneys in Tustin today at (949) 266-0880 or fill out our confidential contact form to learn more.
State and Federal Laws Cover Acts by Employment Agencies
These laws prohibit employment discrimination, including the refusal to hire, because of an applicant’s protected basis. That can be their race, color, religion, sex, sexual orientation, disability, and other bases.
Under California’s Fair Employment and Housing Act, an “employment agency” is defined as “any person undertaking for compensation to procure employees or opportunities to work,” and a “person” is “one or more individuals, partnerships, associations, corporations, limited liability companies, legal representatives, trustees, trustees in bankruptcy, and receivers or other fiduciaries.”
Several federal laws concern employment discrimination issues. One of the most used is Title VII of the Civil Rights Act of 1964. It states that an “employment agency” is “any person regularly undertaking with or without compensation to procure employees for an employer or to procure for employees opportunities to work for an employer and includes an agent of such a person.”
Title VII’s definition of “person” includes the following:
“…one or more individuals, governments, governmental agencies, political subdivisions, labor unions, partnerships, associations, corporations, legal representatives, mutual companies, joint-stock companies, trusts, unincorporated organizations, trustees, trustees in cases under Title 11 [originally, bankruptcy ], or receivers.”
Title VII states this about employment agencies:
“It shall be an unlawful employment practice for an employment agency to fail or refuse to refer for employment, or otherwise to discriminate against, any individual because of his race, color, religion, sex, or national origin, or to classify or refer for employment any individual on the basis of his race, color, religion, sex, or national origin.”
State law covers employers with five or more employees, while Title VII applies to those with 15 or more.
How Could an Employment Agency Discriminate in Hiring an Employee?
The agency could be biased, follow the hiring organization’s discriminatory preferences, or both. An agency may prefer a certain group of people or not discriminate against a group of applicants in general but will follow a client’s illegal preference for or bias against certain people.
This bias may appear through the screening process when candidates whose names are stereotypically associated with particular ethnic or racial groups aren’t considered. A person’s background or race may not be discovered until the applicant is interviewed when they’re disqualified or put low on the list of potential hires.
An employer may not explicitly tell an agency of their illegal preferences. Over time, they may only hire a group of people while repeatedly turning down candidates from different groups. If an agency believes a client illegally discriminates against applicants, it shouldn’t work with them. If, instead, it starts funneling candidates to the client to match their illegal bias, it’s discriminating, too.
If they’re questioned about it after making a decision, the employment agency may invent an excuse (known as a pretext) to hide the actual reasons behind their actions. In such situations, seeking the assistance of an employment discrimination attorney can help hold both the agency and the employer accountable for their unlawful practices.
How Can You Prove an Employment Agency is Illegally Discriminating Against You?
The plaintiff, the person filing the lawsuit, has the burden of proving that the protected basis was more likely than not a reason that they weren’t submitted to an employer as a job candidate.
Evidence is needed to win these cases. Your case won’t succeed if it’s based on opinions and hunches. If there are enough facts to file a lawsuit, the discovery process (where the parties exchange information and documents and witnesses are asked questions under oath in depositions) may or may not provide the evidence necessary for success.
A case filed by a Michigan woman, Brenda Sanders, against an employment agency, Robert Half International (the defendant), in federal court is an example of why these types of cases may fail. Sanders applied for about 73 openings and was never successful. She claimed it was because of her color, age, sex, and retaliation for complaining about discrimination.
The judge dismissed the case for several reasons, including:
- She wasn’t qualified for many of the positions. Clients sought specific experience to fill jobs, and Sanders didn’t have it
- Sanders had some related experience, but it was in jobs about twenty years prior
- At least three times, the defendant tried to contact Sanders to submit her applications to clients, but she didn’t respond to them or within a reasonable time
- She had no proof less qualified candidates not of her protected bases got Robert Half’s approval
- Other candidates who shared Sanders’ protected bases were hired
- Clients canceled some job openings, so Robert Half never selected anyone for the roles, or they weren’t hired
- Sanders didn’t complain of discrimination to the agency, so she couldn’t have been subjected to illegal retaliation
It’s very frustrating to act in good faith and apply for work only to be repeatedly turned down. But that’s not enough to win a case against an employment agency. The evidence must support your claims.
Contact a Tustin Employment Discrimination Attorney
If you have questions about employment agencies or think one may have illegally discriminated against you, speak with an experienced MJB Law Group Tustin employment discrimination lawyer. We will explain your legal rights, assess your situation, and fight for your future. Call us today at (949) 266-0880 or fill out our confidential contact form for a FREE case evaluation and consultation to discuss your situation and options.
Michael J. Berry is the founder and principal attorney of MJB Law Group. His complete focus within the legal field revolves around litigation, as he solely champions the causes of employees whose labor rights have been transgressed, as well as regular individuals who have suffered an injury due to another person’s carelessness. Mr. Berry is Board Member for the Orange County Trial Lawyers Association and also a member of the California Employment Lawyers Association, Consumer Attorneys Association of Los Angeles, and Consumer Attorneys of California. Learn more about Michael here.
