• EEOC Fails To Prove Discrimination Against Temporary Service Agency
  • May 3, 2010
  • Law Firm: Thorp Reed & Armstrong, LLP - Princeton Office
  • On March 25, 2010, the Eighth Circuit Court of Appeals issued an important opinion for temporary employee businesses facing certain discrimination claims. Specifically, Asthmar Suliman (“Suliman”), a Muslim, alleged that Kelly Services, Inc. (“Kelly”) discriminated against her by failing to refer her to Kelly’s client Nahan Printing Inc. (“Nahan”) due to Ms. Suliman’s refusal to remove her Khimar.[1} The Eighth Circuit in EEOC v. Kelly Services, Inc., F.3d (8th Cir. 2010) affirmed the District Court Judge’s grant of summary judgment in favor of Kelly.

    Typical in its industry, Kelly places workers in temporary positions with its clients based on specific requirements from the client. Due to the nature of Nahan’s printing presses, binding and packaging machines, Nahan does not permit workers to wear loose-fitting clothing or headwear because of the risk that such could become entangled in machinery. Nahan enforces its written dress policy on all of its employees.

    In July 2004, Suliman interviewed with Kelly for temporary employment and during the meeting there was a discussion about possible work at Nahan. Kelly’s supervisor reviewed Nahan’s brochure, including its dress policy with Suliman. As a result, Kelly’s supervisor informed Suliman that she would have to remove her religious garment in order to work at Nahan. Kelly never contacted Nahan to see if it could accommodate Suliman. Kelly’s supervisor concluded that Suliman did not meet the safety requirements to work at Nahan.[2]

    Subsequently, Suliman filed a charge of discrimination with Equal Employment Opportunity Commission (“EEOC”) against Kelly, and the EEOC later filed suit against Kelly. The District Court granted Kelly Summary Judgment because the EEOC failed to establish a prima facie case of religious discrimination. Specifically, the trial court found that due to the nature of Kelly’s business, “Suliman did not have a guarantee or reasonable expectation of being placed with any particular employer.” Since Suliman refused other jobs offered by Kelly, such cannot be seen as an adverse employment action.

    Even if the EEOC made out a prima facie case of religious discrimination, the Court concluded that Kelly accommodated Suliman by offering her several other jobs. Equally important, since Nahan’s dress policy was based on safety issues and strictly enforced, Nahan could not have accommodated Suliman without undue hardship.

    On appeal, the EEOC argued that as an employment agency under Title VII, Kelly had a duty to investigate Nahan’s generalized rules to determine if they could have been safely modified. 42 U.S.C. § 2000e-2(b) prohibits an “employment agency to fail or refuse to refer for employment, or otherwise to discriminate against, any individual because of his ... religion ...”

    Since neither party disputed the sincerity of Suliman’s religious beliefs, the only question on appeal was whether an employment agency’s failure to refer an applicant constituted an “adverse employment action.”

    The EEOC claimed that by refusing to refer Suliman to Nahan due to her refusal to remove her Khimar, such constituted an adverse employment action. Yet, it was not clear that there actually was an actual position available for Suliman (or anyone) at the particular time in question. Even if an available position could be proven, Kelly maintained a legitimate, non-discriminatory reason (i.e., safety) for refusing to refer Suliman to Nahan; and the EEOC had no evidence that the given reason was pretextual.

    [1] A traditional garment often worn by Muslim women which covers certain body parts.

    [2} Kelly, however, did offer Suliman seven different jobs, albeit not at Nahan, which could all be performed while wearing a Khimar. Suliman turned down all other temporary positions offered by Kelly.