83-Year-Old Staffing Agency Worker Has Age Bias Claim

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By Jay-Anne B. Casuga

July 19 — A security staffing company may be liable for age discrimination after removing an 83-year-old receptionist from a work site at the client's request without investigation, a federal appeals court ruled ( Nicholson v. Securitas Sec. Servs. USA, Inc. , 2016 BL 230135, 5th Cir., No. 15-10582, 7/18/16 ).

A jury must decide whether Securitas Security Services USA Inc. should have known of its joint-employer client's alleged age bias against Helen Nicholson, who was replaced by a 29-year-old worker, the U.S. Court of Appeals for the Fifth Circuit said.

A jury also must determine whether Securitas failed to take corrective action, the court said, reversing summary judgment to Securitas on Nicholson's Age Discrimination in Employment Act claim.

In recent years, the Equal Employment Opportunity Commission, which enforces the ADEA, has explored the issue of staffing agencies potentially trying to fulfill their clients' allegedly discriminatory hiring and placement practices. Additionally, a growing number of appeals courts, most recently the Third and Fourth circuits, have found that staffing firms and their clients can be held liable as joint employers under federal anti-bias laws.

Judge Leslie H. Southwick wrote the July 18 opinion, joined by Judges Fortunato P. Benavides and James L. Dennis.

Court Sends Case to Trial

According to the court, Securitas had a staffing agreement with FMR Co., also known as Fidelity. Nicholson, who was employed by Securitas, worked as a receptionist at a Fidelity office in Westlake, Texas.

Fidelity later requested that Nicholson be removed from its work site because she was “unable to perform new technology-related tasks,” the court said. Without investigation, Securitas removed Nicholson, who was replaced with a younger employee.

The Fifth Circuit explained that one way a staffing company can be held liable for the alleged discriminatory conduct of a joint-employer client is if it should have known about the client's bias and failed to correct it.

Here, the court said, Securitas had a standard company practice of investigating a client's reassignment requests.

But the company didn't conduct an investigation into Fidelity's request for it to reassign Nicholson, nor did it ask for an explanation before removing Nicholson from the Fidelity work site, the court said.

“If Securitas failed to follow its usual practices in responding to a client’s desire to have an employee removed, such a deviation can support Nicholson’s claim that the company should have known of the alleged discrimination,” the court said.

The Sanford Firm represented Nicholson. Thompson, Coe, Cousins & Irons represented Securitas.

To contact the reporter on this story: Jay-Anne B. Casuga in Washington at jcasuga@bna.com

To contact the editor responsible for this story: Susan J. McGolrick at smcgolrick@bna.com

Copyright © 2016 The Bureau of National Affairs, Inc. All Rights Reserved.

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