Temporary, or contingent, workers have the same right as permanent employees to be free from discrimination in the workplace. The temporary agency that places you, and the actual company where you work, may not discriminate against you because of your race, sex, religion, color, national origin, age or disability. The agency and the company share responsibility for ensuring that you are not discriminated against.

Discrimination against temporary workers can occur in many ways. This information will help you to decide if you are being discriminated against and what to do about it if you are.

WHO IS A TEMPORARY EMPLOYEE?

There are a variety of situations where you may be considered a temporary employee under the discrimination laws. Here are some examples:

• You are considered a temporary employee if you are employed by a temporary employment agency and are placed in a temporary job at another company’s work site. Your work may be overseen by either a supervisor at the job site or by a supervisor from the temporary agency. This often occurs when a firm contracts out services to another company.

• You may also be a temporary employee, as opposed to an independent contractor, and protected from discrimination if:
  
• The agency or the company where you work tells you when, where and how to do your job.

• Your work does not involve a high level of skill or expertise.

• You work at the agency or the company’s workplace.

• The company or agency supplies the tools, materials or equipment.

• You are not working in your own business.

• You are paid by the hour, week or month instead of a set amount for completing a specific job.

• You receive benefits.
  
• You are a temporary employee in a welfare-to-work program. Your caseworker can tell you if you are part of a welfare-to-work program. Welfare-to-work programs include jobs at private companies or public agencies such as the public library or a county office, on-the-job training programs, and work experience. The same factors which determine whether you are a temporary employee as opposed to an independent contractor should determine whether you are a temporary employee in a welfare-to-work program.

There may be other factors that can make you a temporary employee. Call ERA or other organizations listed in the Resources Section to find out more information about whether you are a temporary employee.

WHAT IS DISCRIMINATION?

Job Placement

• You are an African American woman with experience as a security guard. Your agency received a job order for security guards, but only white security guards were given assignments.

• You are an Asian American woman who speaks English fluently, but with an accent. Your agency received a job order for a temporary receptionist who speaks English fluently because a large part of the job includes talking to English-speaking people. Your agency sends you, but the company insists that the agency replace you with someone who speaks English without an accent.

Working Conditions

• Your agency places you as a temporary data processor. A male co-worker makes rude comments about women and tells “dirty” jokes that make you feel uncomfortable and embarrassed. You complain to the company’s supervisor and the temporary agency, but they tell you to “ignore it.” The male co-worker touches you without your permission, and you complain again. This time, the agency and the company decide to move you to another department, but blame you for not being able to deal with the co-worker on your own.

Pay

• You are a woman with excellent qualifications and experience as a hospital aide. Your agency sends you to work at a hospital. Your agency also assigns a male temporary employee to work as an orderly. Although you both do almost the same work, the male orderly makes more money than you do.

WHO IS RESPONSIBLE?

If you are experiencing discrimination, either the temporary agency or the company where you work or both may be required to take proper steps to end it. Who is responsible depends upon who has the right to exercise control over your employment and whether they employ a certain number of employees. For example:

• The agency (either a temporary employment agency, contract firm or welfare office) may be responsible for stopping the discrimination if it hires you, determines when and where you report to work, pays your wages or has the right to fire you.

• The company may be responsible if it exercises supervisory control over you during the job assignment.

• Both the agency and the company may be responsible if they share or split these duties. They also may be responsible if they interfere with your employment opportunities with another employer.

WHAT YOU CAN DO:

When you are deciding what to do, remember that every situation is different. There is no one best thing to do.

• You can go through your temporary agency’s and/or the company’s discrimination complaint process. Remember to complain in writing. When in doubt as to who is responsible, complain to both.

• You can file a charge against the temporary agency and/or the company where you work with a state or federal agency.

• You can also go to court. You should know that there could be some risks in pursuing your rights and filing a claim. It is always a good idea to talk with a lawyer or legal services organization like Equal Rights Advocates. They can help you to understand your choices, their benefits and risks, as well as the strengths and weaknesses of your case.

When fighting discrimination, keep in mind the following tips:

Document your case

As soon as you encounter any form of sex discrimination, begin keeping records. Write down dates, places, times, and possible witnesses. Make sure to keep a written record of any conversations you have with supervisors or any other superiors. If possible, ask co-workers who have suffered similar treatment to write statements supporting your allegations. Do not keep your notes at your workplace. 

Create a paper trail 

If you make a complaint to supervisors and administrators, do so in writing and keep a copy for yourself. Describe the problem and ways you’ve tried to resolve it. This creates a detailed written record of the incidents or conflicts which you’ve tried to settle informally. 

Use your company’s complaint or grievance procedure

If internal channels exist, you may be able to resolve the problem informally through grievance procedures at your workplace. Many employers have specific polices for handling discrimination problems. Find out what they are. A personnel or affirmative action officer should have this information available to all employees. 

Involve your union 

If you are a union member, file a formal grievance through the union and try to get a shop steward or other union official to help you work through the grievance process. 

File a discrimination complaint

File a formal charge of discrimination with the California Department of Fair Employment and Housing (DFEH), or the U.S. Equal Employment Opportunity Commission (EEOC) or your state or local anti-discrimination agency. If you are a federal employee, follow federal guidelines on how to lodge a discrimination complaint. Remember, federal employees have a limited time frame in which to file a complaint. Check with the EEO office at your worksite. 

Do not miss filing deadlines

In order to preserve the timeliness of your complaint, you must file a formal discrimination charge with either the EEOC or your state or local agency by the deadline. Filing on time is crucial. In most instances, the courts will not consider a discrimination case unless a charge was filed first with the appropriate agency and proper procedures were followed. Consult a community legal organization or an attorney to find out about specific filing requirements and deadlines. 

*You can call ERA’s Advice and Counseling Line at 1-800-839-4ERA if you have questions about your situation. 

OTHER RESOURCES THAT CAN HELP YOU: 

California

• California Equal Employment Opportunity Commission (EEOC)
  San Francisco
  901 Market St., Suite 500
  San Francisco, CA 94103
  (415) 356-5100

            Oakland
            1301 Clay St., Suite 1170 North
            Oakland, CA 94612
            (510) 637-3230

• California Department of Fair Employment and Housing (DFEH)
  30 Van Ness Ave., Suite 3000
  San Francisco, CA 94102
  (800) 884-1684

Other California cities and other states: Check the listings in the “federal government” and “state government” sections of your phone book.

• Employment Law Center
  Workers’ Rights Clinics
  East Bay, South Bay, San Francisco, Phone-In
  (415) 864-8208
  
  
• La Raza Centro Legal
  474 Valencia St., Suite 295
  San Francisco, CA 94103
  (415) 575-3500
  (Spanish Services Available)
  
  
• Chinese for Affirmative Action
  17 Walter U. Lum Place
  San Francisco, CA 94108
  (415) 274-6750
  (Chinese Services Available—Cantonese and Mandarin)

Outside California

• NOW Legal Defense and Education Fund
  99 Hudson St., 12^th Floor
  New York, NY 10013
  (212) 925-6635
  
  
• 9to5, National Association of Working Women
  231 West Wisconsin Ave., Suite 900
  Milwaukee, WI 53203
  (800) 522-0925

Disclaimer

The materials contained on this web site have been prepared by Equal Rights Advocates, Inc. for informational purposes only and are not legal advice. Transmission of the information is not intended to create, and receipt does not constitute, an attorney-client relationship. Internet subscribers and online readers should not act upon this information without seeking professional counsel.