Enforcement Guidance: Application of EEO Laws to Contingent Workers Placed by Temporary Employment Agencies and Other Staffing Firms

EEOC NOTICE
Number 915.002 

Date 12/03/97
                                
                                
1.   SUBJECT:  Enforcement Guidance:  Application of EEO
     Laws to Contingent Workers Placed by Temporary
     Employment Agencies and Other Staffing Firms.
                             
                           
2.   PURPOSE:  This document provides guidance regarding the
     application of the anti-discrimination statutes to
     temporary, contract, and other contingent employees.
                             
                           
3.   EFFECTIVE DATE:  Upon receipt.
                             
                           
4.   EXPIRATION DATE:  As an exception to EEOC Order
     205.001, Appendix B, Attachment 4, § a(5),
     this Notice will remain in effect until rescinded or 
     superseded.
                             
                           
5.   ORIGINATOR:  Title VII/EPA/ADEA Division, Office of
     Legal Counsel. 
                             
                           
6.   INSTRUCTIONS:  File after Section 605 of Volume II of
     the Compliance Manual.
                             
                           
                           
                           
                           
      12/3/97                         \s\             
________________________     ______________________________     
Date                         Gilbert F. Casellas
                             Chairman
                           



                  EXECUTIVE SUMMARY


This Guidance addresses the application of the federal
employment discrimination statutes to individuals placed
in job assignments by temporary employment agencies,
contract firms, and other firms that hire workers and
place them in job assignments with the firms' clients. 
The term "staffing firm" is used in this document to
refer to these types of firms.

Staffing firm workers are generally covered under the
anti- discrimination statutes.  This is because they
typically qualify as "employees" of the staffing firm,
the client to whom they are assigned, or both.   Thus,
staffing firms and the clients to whom they assign
workers may not discriminate against the workers on the
basis of race, color, religion, sex, national origin,
age, or disability.  

The guidance makes clear that a staffing firm must hire
and make job assignments in a non-discriminatory manner. 
It also makes clear that the client must treat the
staffing firm worker assigned to it in a non-
discriminatory manner, and that the staffing firm must
take immediate and appropriate corrective action if it
learns that the client has discriminated against one of
the staffing firm workers.  The document also explains
that staffing firms and their clients are responsible for
ensuring that the staffing firm workers are paid wages on
a non-discriminatory basis.  Finally, the guidance
describes how remedies are allocated between a staffing
firm and its client when the EEOC finds that both have
engaged in unlawful discrimination.



                  TABLE OF CONTENTS

[NOTE: Page numbers removed in electronic version]


INTRODUCTION     

STAFFING SERVICE WORK ARRANGEMENTS   

COVERAGE ISSUES  

DISCRIMINATORY ASSIGNMENT PRACTICES  

DISCRIMINATION AT WORK SITE      

DISCRIMINATORY WAGE PRACTICES    

ALLOCATION OF REMEDIES     

CHARGE PROCESSING INSTRUCTIONS   




      Enforcement Guidance:  Application of EEO
                      Laws  to 
        Contingent Workers Placed by Temporary
                     Employment 
          Agencies and Other Staffing Firms


                     INTRODUCTION

This Guidance addresses the application of Title VII of
the Civil Rights Act of 1964 (Title VII), the Age
Discrimination in Employment Act (ADEA), the Americans
with Disabilities Act (ADA), and the Equal Pay Act (EPA)
to individuals placed in job assignments by temporary
employment agencies and other staffing firms, i.e.,
"contingent workers."  The term "contingent workers"
generally refers to workers who are outside an employer's
"core" work force, such as those whose jobs are
structured to last only a limited period of time, are
sporadic, or differ in any way from the norm of full-time, 
long-term employment.

This guidance focuses on a large subgroup of the
contingent work force -- those who are hired and paid by
a "staffing firm," such as a temporary employment agency
or contract firm, but whose working conditions are
controlled in whole or in part by the clients to whom
they are assigned. 

Recent statistics compiled by the National Association of
Temporary and Staffing Services (NATSS) show that the
temporary help industry currently employs more than 2.3
million individuals.1  That number represents  a 100%
increase since 1991, when 1.15 million individuals were
employed in temporary help jobs.  NATSS statistics also
show that the professional segment of the temporary help
industry (including occupations in accounting, law,
sales, and management) has risen significantly.

A 1995 survey by the Bureau of Labor Statistics (BLS)
showed that workers paid by temporary employment agencies
were more likely to be female and African American than
workers in traditional job arrangements,2 while workers
provided by contract firms were disproportionately male.3 
BLS found that workers paid by temporary help agencies
were heavily concentrated in administrative support and
laborer occupations and earned 60 percent of the
traditional worker wage.4  The largest proportion of
contract workers was employed in the services industry,
and  female contract workers earned slightly less than
traditional workers while male contract workers earned
more.   BLS also found that contract and temporary
workers had lower rates of health insurance and pension
coverage than traditional workers, and that the majority
of temporary workers would have preferred traditional
work arrangements.

Staffing firms may assume that they are not responsible
for any discrimination or harassment that their workers
confront at the clients' work sites.  Similarly, some
clients of staffing firms may  assume that they are not
the employers of temporary or contract workers assigned
to them, and that they therefore have no EEO obligations
toward these workers.  However, as this guidance
explains, both staffing firms and their clients share EEO
responsibilities toward these workers.

The Commission has addressed in previous guidance several
of the coverage issues discussed in this document.5 
However, because use of contingent workers is increasing,
it is important to set out an updated and unified policy
that more specifically explains how the anti-
discrimination laws apply to this segment of the
workforce.

This document provides guidance concerning the following
issues:

  coverage under the EEO laws, including coverage of
     workers assigned to federal agencies;
     
  liability of staffing firms and/or clients for
     discriminatory hiring, assignment, or wage
     practices;
     
  liability of staffing firms and/or clients for unlawful
     discrimination or harassment at the assigned work
     site; and
     
  allocation of damages where both the staffing firm and
     its client violate EEO laws.
     

          STAFFING SERVICE WORK ARRANGEMENTS

The activities of the following types of staffing firms
are addressed in this guidance6:

  Temporary Employment Agencies
     
     Unlike a standard employment agency, a temporary
     employment agency employs the individuals that it
     places in temporary jobs at its clients' work
     sites.  The agency recruits, screens, hires, and
     sometimes trains its employees.  It sets and pays
     the wages when the worker is placed in a job
     assignment, withholds taxes and social security,
     and provides workers' compensation coverage.  The
     agency bills the client for the services performed.
     
     While the worker is on a temporary job assignment,
     the client typically controls the individual's
     working conditions, supervises the individual, and
     determines the length of the assignment.  
     
  Contract Firms
     
     Under a variety of arrangements, a firm may
     contract with a client to perform a certain service
     on a long-term basis and place its own employees,
     including supervisors, at the client's work site to
     carry out the service.  Examples of contract firm
     services include security, landscaping, janitorial,
     data processing, and cafeteria services.  
     
     Like a temporary employment agency, a contract firm
     typically recruits, screens, hires, and sometimes
     trains its workers.  It sets and pays the wages
     when the worker is placed in a job assignment,
     withholds taxes and social security, and provides
     workers' compensation coverage. 
     
     The primary difference between a temporary agency
     and a contract firm is that a contract firm takes
     on full operational responsibility for performing
     an ongoing service and supervises its workers at
     the client's work site.
     
  Other Types of Staffing Firms
     
     There are many variants on the staffing firm/
     client model. For example, "facilities staffing" is
     an arrangement in which a staffing firm provides
     one or more workers to staff a particular client
     operation on an ongoing basis, but does not manage
     the operation.
     
     Under another model, a client of a staffing firm
     puts its workers on the firm's payroll, and the
     firm leases the workers back to the client.  The
     purpose of this arrangement is to transfer
     responsibility for administering payroll and
     benefits from the client to the staffing firm.  A
     staffing firm that offers this service does not
     recruit, screen, or train the workers.
     
The term "staffing firm" is used in this document to
describe generically these types of firms, although more
specific terms are used where necessary for purposes of
clarity.  


                   COVERAGE ISSUES

This section sets forth criteria for determining whether
a staffing firm worker qualifies as an "employee" within
the meaning of the anti-discrimination statutes or an
independent contractor; whether the staffing firm and/or
its client qualifies as the worker's  employer(s); and
whether the staffing firm or its client can be liable for
discriminating against the worker even if it does not
qualify as the worker's employer.  This section also
discusses coverage of staffing firm workers assigned to
jobs in the Federal Government and coverage of workers
assigned to jobs in connection with welfare programs. 
Finally, this section explains the method for counting
workers of a staffing firm or its client to determine
whether either entity has the minimum number of employees
to be covered under the applicable anti-discrimination
statute. 

1.     Are staffing firm workers "employees" within the meaning
     of the federal employment discrimination laws?
     
     Yes, in the great majority of circumstances.7  The
     threshold question is whether a staffing firm
     worker is an "employee" or an "independent
     contractor."  The worker is a covered employee
     under the anti-discrimination statutes if the right
     to control the means and manner of her work
     performance rests with the firm and/or its client
     rather than with the worker herself.  The label
     used to describe the worker in the employment
     contract is not determinative.  One must consider
     all aspects of the worker's relationship with the
     firm and the firm's client.8  As the Supreme Court
     has emphasized, there is " no shorthand formula or
     magic phrase that can be applied to find the
     answer, . . . all incidents of the relationship
     must be assessed with no one factor being
     decisive.'"9  Factors that indicate that the worker
     is a covered employee include:10
     a)     the firm or the client has the right to control
          when, where, and how the worker performs the
          job;
          
     b)     the work does not require a high level of skill or
          expertise;
          
     c)     the firm or the client rather than the worker
          furnishes the tools, materials, and equipment;
          
     d)     the work is performed on the premises of the firm
          or the client;
          
     e)     there is a continuing relationship between the
          worker and the firm or the client;
          
     f)     the firm or the client has the right to assign
          additional projects to the worker;
          
     g)     the firm or the client sets the hours of work and
          the duration of the job;
          
     h)     the worker is paid by the hour, week, or month
          rather than for the agreed cost of performing
          a particular job;
          
     I)     the worker has no role in hiring and paying
          assistants;
          
     j)     the work performed by the worker is part of the
          regular business of the firm or the client;
          
     k)     the firm or the client is itself in business;
          
     l)     the worker is not engaged in his or her own
          distinct occupation or business;
          m)     the firm or the client provides the worker with
          benefits such as insurance, leave, or workers'
          compensation;
          
     n)     the worker is considered an employee of the firm or
          the client for tax purposes (i.e., the entity
          withholds federal, state, and Social Security
          taxes);
          
     o)     the firm or the client can discharge the worker;
          and
          
     p)     the worker and the firm or client believe that they
          are creating an employer-employee
          relationship.
          
     This list is not exhaustive.  Other aspects of the
     relationship between the parties may affect the
     determination of whether an employer-employee
     relationship exists.  Furthermore, not all or even
     a majority of the listed criteria need be met. 
     Rather, the fact-finder must make an assessment
     based on all of the circumstances in the
     relationship between the parties.
     
          Example 1: A temporary employment
          agency hires a worker and assigns
          him to serve as a computer
          programmer for one of the agency's
          clients.  The agency pays the worker
          a salary based on the number of
          hours worked as reported by the
          client.  The agency also withholds
          social security and taxes and
          provides workers' compensation
          coverage.  The client establishes
          the hours of work and oversees the
          individual's work. The individual
          uses the client's equipment and
          supplies and works on the client's
          premises.  The agency reviews the
          individual's work based on reports
          by the client.  The agency can
          terminate the worker if his or her
          services are unacceptable to the
          client.  Moreover, the worker can
          terminate the relationship without
          incurring a penalty.  In these
          circumstances, the worker is an
          "employee." 
          


2.     Is a staffing firm worker who is assigned to a client an
     employee of the firm, its client, or both?
     
     Once it is determined that a staffing firm worker
     is an "employee," the second question is who is the
     worker's employer.  The staffing firm and/or its
     client will qualify as the worker's employer(s) if,
     under the factors described in Question 1, one or
     both businesses have the right to exercise control
     over the worker's employment.  As noted above, no
     one factor is decisive, and it is not necessary
     even to satisfy a majority of factors.  The
     determination of who qualifies as an employer of
     the worker cannot be based on simply counting the
     number of factors.  Many factors may be wholly
     irrelevant to particular facts.  Rather, all of the
     circumstances in the worker's relationship with
     each of the businesses should be considered to
     determine if either or both should be deemed his or
     her employer.  If either entity qualifies as the
     worker's employer, and if that entity has the
     statutory minimum number of employees (see Question
     6), then it can be held liable for unlawful
     discriminatory conduct against the worker.  If both
     the staffing firm and its client have the right to
     control the worker, and each has the statutory
     minimum number of employees, they are covered as
     "joint employers."11 
     
     a.     Staffing Firm: 
          
     The relationship between a staffing firm and each
     of its workers generally qualifies as an employer-
     employee relationship because the firm typically
     hires the worker, determines when and where the
     worker should report to work, pays the wages, is
     itself in business, withholds taxes and social
     security, provides workers' compensation coverage,
     and has the right to discharge the worker.  The
     worker generally receives wages by the hour or week
     rather than by the job and often has a continuing
     relationship with the staffing firm.  Furthermore,
     the intent of the parties typically is to establish
     an employer-employee relationship.12
     In limited circumstances, a staffing firm might not
     qualify as an employer of the workers that it
     assigns to a client.  For example, in some
     circumstances, a client puts its employees on the
     staffing firm's payroll solely in order to transfer
     the responsibility of administering wages and
     insurance benefits.  This is often referred to as
     employee leasing.  If the firm does not have the
     right to exercise any control over these workers,
     it would not be considered their "employer."13 
     
     b.     Client:
          
     A client of a temporary employment agency typically
     qualifies as an employer of the temporary worker
     during the job assignment, along with the agency. 
     This is because the client usually exercises
     significant supervisory control over the worker.14 
     
     
          Example 2: Under the facts of
          Example 1, above, the temporary
          employment agency and its client
          qualify as joint employers of the
          worker because both have the right
          to exercise control over the
          worker's employment.
          
          Example 3: A staffing firm hires
          charging party (CP) and sends her to
          perform a long term accounting
          project for a client.  Her contract
          with the staffing firm states that
          she is an independent contractor. 
          CP retains the right to work for
          others, but spends substantially all
          of her work time performing services
          for the client, on the client's
          premises. The client supervises CP,
          sets her work schedule, provides the
          necessary equipment and supplies,
          and specifies how the work is to be
          accomplished.  CP reports the number
          of hours she has worked to the
          staffing firm.  The firm pays her
          and bills the client for the time
          worked.  It reviews her work based
          on reports by the client and has the
          right to terminate her if she is
          failing to perform the requested
          services.  The staffing firm will
          replace her with another worker if
          her work is unacceptable to the
          client. 
          
          In these circumstances, despite the
          statement in the contract that she
          is an independent contractor, both
          the staffing firm and the client are
          joint employers of CP.15
          
     Clients of contract firms and other types of
     staffing firms also qualify as employers of the
     workers assigned to them if the clients have
     sufficient control over the workers, under the
     standards set forth in Question 1, above.16  For
     example, the client is an employer of the worker if
     it supplies the work space, equipment, and
     supplies, and if it has the right to control the
     details of the work to be performed, to make or
     change assignments, and to terminate the
     relationship.  On the other hand, the client would
     not qualify as an employer if the staffing firm
     furnishes the job equipment and has the exclusive
     right, through on-site managers, to control the
     details of the work, to make or change assignments,
     and to terminate the workers.  
     
          Example 4: A staffing firm provides
          janitorial services for its clients. 
          It hires the workers and places them
          on each client's premises under the
          supervision of the contract firm's
          own managerial employees.  The
          firm's manager sets the work
          schedules, assigns tasks to the
          janitors, provides the equipment
          they need to do the job, and
          supervises their work performance. 
          The client has no role in
          controlling the details of the work,
          making assignments, or setting the
          hours or duration of the work.  Nor
          does the client have authority to
          discharge the worker.  In these
          circumstances, the staffing firm is
          the worker's exclusive employer; its
          client is not a joint employer.
          
          Example 5: A staffing firm provides
          landscaping services for clients on
          an ongoing basis.  The staffing firm
          selects and pays the workers,
          provides health insurance and
          withholds taxes.  The firm provides 
          the equipment and supplies necessary
          to do the work.  It also supervises
          the workers on the clients'
          premises.  Client A reserves the
          right to direct the staffing firm
          workers to perform particular tasks
          at particular times or in a
          specified manner, although it does
          not generally exercise that
          authority.  Client A evaluates the
          quality of the workers' performance
          and regularly reports its findings
          to the firm.  It can require the
          firm to remove the worker from the
          job assignment if it is
          dissatisfied.  The firm and the
          Client A are joint employers. 
          
3.     Can a staffing firm or its client be liable for
     unlawfully discriminating against a staffing firm
     worker even if it does not qualify as the worker's
     employer?
     
     An entity that has enough employees to qualify as
     an employer under the applicable EEO statute can be
     held liable for discriminating against an
     individual who is not its employee.  The anti-
     discrimination statutes not only prohibit an
     employer from discriminating against its own
     employees, but also prohibit an employer from
     interfering with an individual's employment
     opportunities with another employer.17  Thus, a
     staffing firm that discriminates against its
     client's employee or a client that discriminates
     against a staffing firm's employee is liable for
     unlawfully interfering in the individual's
     employment opportunities.18  
     
     Example 6:  A staffing firm assigned
          one of its employees to maintain and
          repair a client's computers.  The
          firm supplied all the tools and
          direction for the repairs.  The
          technician was on the client's
          premises only sporadically over a
          three to four week period and worked
          independently while there.  The
          client did not report to the firm
          about the number of hours worked or
          about the quality of the work.  The
          client had no authority to make
          assignments or require work to be
          done at particular times.  After a
          few visits, the client asked the
          contract firm to assign someone
          else, stating that it was not
          satisfied with the worker's computer
          repair skills.  However, the worker
          believes that the true reason for
          the client's action was racial bias.
          
          The client does not qualify as a
          joint employer of the worker because
          it had no ongoing relationship with
          the worker, did not pay the worker
          or firm based on the hours worked,
          and had no authority over hours,
          assignments, or other aspects of the
          means or manner by which the work
          was achieved.  However, if the
          client's request to replace the
          worker was due to racial bias, and
          if the client had fifteen or more
          employees, it would be liable for
          interfering in the worker's
          employment opportunities with the
          staffing firm.
               
          Example 7:   A company puts its
          employees on the payroll of a
          staffing firm solely in order to
          transfer the responsibility of
          administering wages and insurance
          benefits for the company's workers. 
          The staffing firm administers a
          health insurance policy for its
          client's workers that does not cover
          AIDS-related illness.  Two workers
          file ADA charges against the
          staffing firm and the client.  The
          staffing firm claims that it is not
          an employer of the workers and
          therefore falls outside ADA
          coverage.  
          
          The staffing firm does not qualify
          as a joint employer of the workers
          because it does not have the
          requisite degree of control -- it
          did not hire the workers; establish
          their wage rates or hours; control
          the conditions of work; manage
          personnel disputes; or have the
          right to fire the workers. 
          Nevertheless, the firm shares
          liability with its client for the
          discriminatory health insurance plan
          if it has fifteen or more employees
          of its own to fall under the
          coverage of the ADA.19  This is
          because the firm's administration of
          the insurance plan interferes in the
          workers' access to employment
          opportunities or benefits.20
          
4.     Do the same coverage principles apply when a staffing
     firm assigns a worker to a federal agency?
     
     The principles regarding joint employer coverage
     are the same.  Thus, a federal agency qualifies as
     a joint employer of an individual assigned to it if
     it has the requisite control over that worker, as
     discussed in Questions 1 and 2.  If so, and if the
     agency discriminates against the individual, it is
     liable whether or not the individual is on the
     federal payroll.21 
     
     In contrast to private employers, a federal agency
     that does not qualify as a joint employer of the
     worker assigned to it cannot be found liable for 
     discrimination under a "third party interference"
     theory.  This is because Title VII, the ADEA, and
     Section 501 of the Rehabilitation Act only permit
     claims against the federal government by "employees
     or applicants for employment."22
     

5.     Are workers participating in work-related activities in
     connection with welfare programs protected by the
     federal employment discrimination laws?  If so, who
     is the employer of such a worker?  What types of
     claims might arise?
     
     a.     Employee Status
          
     Welfare recipients participating in work-related
     activities23  are protected by the federal anti-
     discrimination statutes if they are "employees"
     within the meaning of the federal employment
     discrimination laws.24  See Question 1.  The simple
     fact of participation in one of these activities is
     not dispositive of the question of whether the
     federal employment discrimination laws apply. 
     Rather, the same analysis applies which is used to
     determine whether any other worker is covered by
     the federal employment discrimination laws.  Under
     the criteria that have been set out, welfare
     recipients would likely be considered employees in
     most of the work activities described in the new
     welfare law, including unsubsidized and subsidized
     public and private sector employment, work
     experience, and on-the-job training programs.25  On
     the other hand, individuals engaged in activities
     such as vocational education, job search
     assistance, and secondary school attendance would
     probably not be covered.26 
     
     b.     Employer Status
          
     While some workers participating in these programs
     will have a single employer, others may have joint
     employers.  For example, a state or local welfare
     agency may function as a staffing firm and the
     "direct" employer may function as the client.  In
     some cases, a state or local welfare agency may
     contract with a temporary employment agency to
     place the welfare recipients in job assignments. 
     The determination of whether any or all of these
     entities are employers of the worker is based on
     the same criteria set forth in answer to Questions
     1 and 2 that apply to any other employment
     situation.  The fact that an entity does not pay
     the worker a salary does not, by itself, defeat a
     finding of an employment relationship.  Moreover,
     even if an entity is not the worker's employer, it
     can be found liable under the employment
     discrimination laws based on the interference
     theory explained in the answer to Question 3.
     
     c.     Types of Claims
          
     Types of claims which may arise include, for
     example,  harassment, discriminatory assignments,
     discriminatory termination, failure to provide
     reasonable accommodation to persons covered under
     the Americans with Disabilities Act, and
     retaliation. 
     
6.     Which workers are counted when determining whether a
     staffing firm or its client is covered under Title
     VII, the ADEA, or the ADA?
     
     The staffing firm and the client each must count
     every worker with whom it has an employment
     relationship.27   Although a worker assigned by a
     staffing firm to a client may not appear on the
     client's payroll, (s)he must be counted as an
     employee of both entities if they qualify as joint
     employers.28   Questions 1 and 2, above, set forth
     the legal standards for determining whether a
     worker has an employment relationship with either
     the staffing firm or its client, or both.
     
     The Supreme Court has made clear that a respondent
     must count each employee from the day that the
     employment relationship begins until the day that
     it ends, regardless of whether the employee is
     present at work or on leave on each working day
     during that period.29  Thus, a client of a staffing
     firm must count each worker assigned to it from the
     first day of the job assignment until the last day. 
     The staffing firm also must count the worker as its
     employee during every period in which the worker is
     sent on a job assignment.
     
     Staffing firms are typically covered under the
     anti- discrimination statutes, because  their
     permanent staff plus the workers that they send to
     clients generally exceeds the minimum statutory
     threshold.  Clients may or may not be covered,
     depending on their size.
     In cases where questions are raised regarding
     coverage, the investigator should ask the
     respondent to name and provide records regarding
     every individual who performed work for it,
     including all individuals assigned by staffing
     firms and any temporary, seasonal, or other
     contingent workers hired directly by the
     respondent.  If the investigator has questions
     about the documents produced and cannot otherwise
     obtain the necessary information, he or she may
     consider deposing the respondent.  The investigator
     should then determine which of the named
     individuals qualified as employees of the
     respondent rather than independent contractors,
     according to the standards set forth in Questions
     1 and 2, above. 
     

         DISCRIMINATORY ASSIGNMENT PRACTICES

A staffing firm is obligated, as an employer, to make job
assignments in a nondiscriminatory manner.30  It also is
obligated as an employment agency to make job referrals
in a nondiscriminatory manner.  The staffing firm's
client is liable if it sets discriminatory criteria for
the assignment of workers.  The following question and
answer explore these issues in detail.  

7.     If a worker is denied a job assignment by a staffing
     firm because its client refuses to accept the
     worker for discriminatory reasons, is the staffing
     firm liable?  Is the client? 
     
     a.  Staffing Firm
     
     The staffing firm is liable for its discriminatory
     assignment decisions.  Liability can be found on
     any of the following bases: 1) as an employer of
     the workers assigned to clients (for discriminatory
     job assignments); 2) as a third party interferer
     (for discriminatory interference in the workers'
     employment opportunities with the firm's client);
     and/or 3) as an employment agency for
     (discriminatory job referrals).31
     
     The fact that a staffing firm's discriminatory
     assignment practice is based on its client's
     requirement is no defense.  Thus, a staffing firm
     is liable if it honors a client's discriminatory
     assignment request or if it knows that its client
     has rejected workers in a protected class for
     discriminatory reasons and for that reason refuses
     to assign individuals in that protected class to
     that client.  Furthermore, the staffing firm is
     liable if it administers on behalf of its client a
     test or other selection requirement that has an
     adverse impact on a protected class and is not job-
     related for the position in question and consistent
     with business necessity.  42 U.S.C. § 2000e-2(k).
     
          b.  Client   
     
     A client that rejects workers for discriminatory
     reasons is liable either as a joint employer or
     third party interferer if it has the requisite
     number of employees to be covered under the
     applicable anti-discrimination statute.
     
          Example 8:  A staffing firm that
          provides job placements for nurses
          receives a job order from an
          individual client for a white nurse
          to provide her with home-based
          nursing care.  The firm agrees to
          refer only white nurses for the job. 
          The firm is violating Title VII,
          both as an employment agency for its
          discriminatory referral practice and
          as an employer for the
          discriminatory job assignment.  The
          client is not covered by Title VII
          because she does not have fifteen or
          more employees.
          
          Example 9:  A temporary employment
          agency receives a job order for a
          temporary receptionist.  The client
          requires that the individual
          assigned to it speak English
          fluently because a large part of the
          job entails communication with
          English-speaking persons who call
          the client or who come to the
          client's work place.  The agency
          assigns an Asian American individual
          who speaks English fluently, but
          with an accent.  The client insists
          that the agency replace her with
          someone who can speak unaccented
          English.  The agency complies with
          that request and sends an individual
          who speaks English fluently with no
          accent.
          
     The Asian American individual files
          a charge with the EEOC.  The
          investigator determines that English
          fluency was necessary for the job. 
          However, he further determines that
          CP's accent does not interfere with
          her ability to communicate and that
          she has effectively performed
          similar jobs.  The investigator
          properly concludes that both the
          client and the staffing firm are
          liable for terminating CP on the
          basis of her national origin.
          
          Example 10: A staffing firm provides
          machine operators to its clients. 
          One of its clients requires that all
          workers assigned to it pass a
          certain paper and pencil test.  The
          firm administers the test to its
          available workers and refers only
          those who pass the test.  An African
          American individual who is denied an
          assignment with the client files
          charges against both the staffing
          firm and its client, alleging that
          administration of the test results
          in the disproportionate exclusion of
          African Americans.  An investigation
          shows that the test does have an
          adverse impact on African Americans
          and does not accurately measure the
          skills that are necessary for job
          performance.  Therefore, both the
          staffing firm and its client are in
          violation of Title VII.
          

             DISCRIMINATION AT WORK SITE

A client of a staffing firm is obligated to treat the
workers assigned to it in a nondiscriminatory manner. 
Where the client fails to fulfill this obligation, and
the staffing firm knows or should know of the client's
discrimination, the firm must take corrective action
within its control.32  The following questions and
answers explore these issues in detail.

8.     If a client discriminates against a worker assigned by a
     staffing firm, who is liable?
     
     Client:  If the client qualifies as an employer of
     the worker (see Questions 1 and 2), it is liable
     for discriminating against the worker on the same
     basis that it would be liable for discriminating
     against any of its other employees.
     
     Even if the client does not qualify as an employer
     of the worker, it is liable for discriminating
     against that individual if the client's misconduct
     interferes with the worker's employment
     opportunities with the staffing firm, and if the
     client has the minimum number of employees to be
     covered under the applicable discrimination
     statute.  See Question 3.  
     
     Staffing Firm:  The firm is liable if it
     participates in the client's discrimination.  For
     example, if the firm honors its client's request to
     remove a worker from a job assignment for a
     discriminatory reason and replace him or her with
     an individual outside the worker's protected class,
     the firm is liable for the discriminatory
     discharge.  The firm also is liable if it knew or
     should have known about the client's discrimination
     and failed to undertake prompt corrective measures
     within its control.33 
     
     The adequacy of corrective measures taken by a
     staffing firm depends on the particular facts. 
     Corrective measures may include, but are not
     limited to: 1) ensuring that the client is aware of
     the alleged misconduct; 2) asserting the firm's
     commitment to protect its workers from unlawful
     harassment and other forms of prohibited
     discrimination; 3) insisting that prompt
     investigative and corrective measures be
     undertaken; and 4) affording the worker an
     opportunity, if (s)he so desires, to take a
     different job assignment at the same rate of pay. 
     The staffing firm should not assign other workers
     to that work site unless the client has undertaken
     the necessary corrective and preventive measures to
     ensure that the discrimination will not recur. 
     Otherwise, the staffing firm will be liable along
     with the client if a worker later assigned to that
     client is subjected to similar misconduct.34
     

          Example 11:  A temporary
          receptionist placed by a temporary
          employment agency is subjected to
          severe and pervasive unwelcome
          sexual comments and advances by her
          supervisor at the assigned work
          site.  She complains to the agency,
          and the agency informs its client of
          the allegation.  The client refuses
          to investigate the matter, and
          instead asks the agency to replace
          the worker with one who is not a
          "troublemaker."  The agency tells
          the worker that it cannot force the
          client to take corrective action,
          finds the worker a different job
          assignment, and sends another worker
          to complete the original job
          assignment.  
          
          The client is liable as an employer
          of the worker for harassment and for
          retaliatory discharge.  
          
          The temporary employment agency also
          is liable for the harassment and
          retaliatory discharge because it
          knew of the misconduct and failed to
          undertake adequate corrective
          action.  Informing the client of the
          harassment complaint was not
          sufficient -- the agency should have
          insisted that the client investigate
          the allegation of harassment  and
          take immediate and appropriate
          corrective action.  The agency
          should also have asserted the right
          of its workers to be free from
          unlawful discrimination and
          harassment, and declined to assign
          any other workers until the client
          undertook the necessary corrective
          and preventive measures.  The agency
          unlawfully participated in its
          client's discriminatory misconduct
          when it acceded to the client's
          request to replace the worker with
          one who was not a "troublemaker." 
          If the replacement worker is
          subjected to similar harassment, the
          agency and the client will be
          subject to additional liability.
          
          Example 12:  A staffing firm
          provides computer services for a
          company that has more than 15
          employees.  The staffing firm
          assigns an individual to work on-site 
          for that client.  When the
          client discovers that the worker has
          AIDS, it tells the staffing firm to
          replace him because the client's
          employees fear infection.  The
          staffing firm alerts the client that
          they are both prohibited from
          discriminating against the worker,
          and that such a discharge would
          violate the ADA.  The client
          nevertheless continues to insist
          that the firm remove the worker from
          the work assignment and replace him
          with someone else.  The staffing
          firm has no choice but to remove the
          worker.  However, it declines to
          replace him with another worker to
          complete the assignment because to
          do so would constitute acquiescence
          in the discrimination.  Furthermore,
          the firm offers the worker a
          different job assignment at the same
          rate of pay.  The client is liable
          for the discriminatory discharge,
          either as an employer or third party
          interferer.  The staffing firm is
          not liable because it took immediate
          and appropriate corrective action
          within its control.
          
9.     If a staffing firm sends its employee on a job
     assignment with a federal agency and the individual
     is subjected to discrimination while on the
     assignment, is the federal agency liable?  Is the
     staffing firm?  What procedures should the
     individual follow in filing a complaint?
     
     The federal agency is liable for discriminating
     against the worker if it qualifies as an employer
     of the worker.  If the federal agency does not
     qualify as an employer of the staffing firm worker
     under the criteria in Questions 1 and 2, it will
     not be liable for discriminating against that
     worker under the statutes enforced by the EEOC.  A
     federal agency is liable for employment
     discrimination under these statutes only where it
     has sufficient control to be deemed an employer of
     the worker.  See Question 4.
     
     The staffing firm is liable if it participated in
     the federal agency's discrimination or if it knew
     or should have known of the discrimination and
     failed to intervene, under the principles discussed
     in Question 8, above. 
     
     If the staffing firm worker seeks to pursue a
     complaint against the federal agency as his or her
     employer, (s)he should contact an EEO Counselor at
     the federal agency within 45 days of the date of
     the alleged discrimination.  If the individual also
     seeks to pursue a claim against the staffing firm,
     (s)he should file a separate charge with an EEOC
     field office.  In such circumstances, the EEOC
     investigator should alert the individual as to the
     different time frames and procedures in the federal
     and private sectors.35  The investigator should
     also contact the EEO office of the federal agency
     once the individual files the federal sector
     complaint in order to coordinate the federal and
     private sector investigations.36 
     


            DISCRIMINATORY WAGE PRACTICES

A staffing firm may not discriminate in the payment of
wages on the basis of race, sex, religion, national
origin, age, or disability.  Its clients share that
obligation.

10.    If a staffing firm assigns a male and female to a client
     to perform substantially equal work, and the female
     is paid a lower wage than the male, would the firm
     and/or the client be subject to Equal Pay Act or
     Title VII liability?
     
     Under the EPA, men and women must receive equal pay
     for equal work.37  The jobs need not be identical,
     but they must be substantially equal.  It is job
     content, not job titles, that determines whether
     jobs are substantially equal.  Specifically, a sex-
     based wage disparity violates the EPA if the jobs
     are in the same establishment, require
     substantially equal skill, effort, and
     responsibility, are performed under similar working
     conditions, and if no statutory defense applies. 
     Wage differences that are not based on sex, but on
     bona fide distinctions between temporary and
     permanent workers, can be justified under the EPA
     as based on a "factor other than sex."38   Both the
     staffing firm and its client are liable for a
     violation of the Equal Pay Act if they both qualify
     as "employers" of the worker bringing the
     complaint.39 
     

     A violation of the EPA also constitutes a violation
     of Title VII as long as there is Title VII
     coverage.40  Furthermore, a sex-based wage
     disparity violates Title VII even if the jobs are
     not substantially equal under EPA standards, if
     there is other evidence of wage discrimination.41 
     Moreover, an entity with fifteen or more employees
     is liable under Title VII for wage discrimination
     even if it does not qualify as an employer of the
     worker assigned to it, if the wage discrimination
     interferes in the worker's employment
     opportunities.
     
          Example 13:  A temporary employment
          agency assigned CP (female) to a
          temporary job as a hospital aide. 
          CP discovered that the agency had
          also assigned a male to a temporary
          job as an "orderly" at the same
          hospital at a higher wage.  CP files
          charges against the agency and the
          hospital, alleging that her job and
          that of the male orderly were
          substantially equal, and that the
          wage disparity violated the Equal
          Pay Act and Title VII.  CP's charge
          against the hospital also challenges
          a disparity between her wages and
          those of permanent male aides and
          orderlies at the hospital.
          
          The investigator determines that the
          temporary employment agency and the
          hospital were joint employers of CP
          and that both entities had control
          over the rates of pay for the
          hospital aide and orderly jobs.  The
          investigator also determines that
          the temporary aide and orderly jobs
          were substantially equal under EPA
          standards, and that no defense
          applies.  Therefore, he finds that
          the agency and the hospital are both
          liable under the EPA and Title VII
          on the claim that the temporary aide
          and orderly should have received the
          same wage.  The investigator further
          determines that the wage
          differential between the temporary
          and  permanent aide and orderly jobs
          was based on a factor other than
          sex, since the hospital paid all its
          temporary workers less than
          permanent workers filling the same
          jobs, regardless of sex.  Therefore,
          "no cause" is found on this latter
          claim.
          


                ALLOCATION OF REMEDIES

11.    If the Commission finds reasonable cause to believe that
     both a staffing firm and its client have engaged in
     unlawful discrimination, how are back wages and
     damages allocated between the respondents?
     
     Where the combined discriminatory actions of a
     staffing firm and its client result in harm to the
     worker, the two respondents are jointly and
     severally liable for back pay, front pay, and
     compensatory damages.  This means that the
     complainant can obtain the full amount of back pay,
     front pay, and compensatory damages from either one
     of the respondents alone or from both respondents
     combined.42  Punitive damages under Title VII and
     the ADA,43 and liquidated damages under the ADEA,44
     are individually assessed against and borne by each
     respondent in accordance with its respective degree
     of malicious or reckless misconduct.45  This is
     because punitive damages are designed not to
     compensate the victim for his or her harm, but to
     punish the respondent.46  Of course, no respondent
     can be required to pay a sum of future pecuniary
     damages, damages for emotional distress, and
     punitive damages, in excess of its applicable
     statutory cap.  The investigator should contact the
     legal unit in his or her office for advice in
     determining how to allocate damages between the
     parties.    

     Computation of Monetary Relief
     
     The first step is to compute lost wages (including
     back and front pay);  compensatory damages for both
     pecuniary loss and emotional distress; and punitive
     damages.47  This computation should be made without
     regard to the statutory caps on damages,48 and,
     except for punitive damages, without regard to
     either respondent's ability to pay.49  This initial
     computation will establish the charging party's
     total wage and other compensable losses, as well as
     the full calculation of punitive damages.         
                    
     Back Pay, Front Pay, and Past Pecuniary Damages

     The next step is to determine the allocation
     between the respondents of back and front pay and
     past pecuniary damages.  The charging party can
     obtain the full amount of these remedies because
     they are not subject to the statutory caps.  The
     Commission can pursue the entire amount from either
     the staffing firm or the client, or from both
     combined.50  However,  the total amount actually
     paid cannot exceed the sum of back and front wages
     and past pecuniary damages owed to the worker.  
     
     Application of the Statutory Cap on Damages
     
     The final step is to determine each respondent's
     liability for compensatory and punitive damages
     subject to the statutory caps.  The total amount
     paid by a respondent for  compensatory damages for
     emotional distress and future pecuniary harm, and
     for punitive damages, cannot exceed its statutory
     cap.  Thus, while the initial determination of the
     appropriate amount of compensatory and/or punitive
     damages is made without regard to the caps, the
     caps may affect the allocation of damages between
     two respondents as well as the total damages paid
     to the charging party. In applying the caps to the
     actual allocation of damages, the following
     principles apply:
     
       For compensatory damages subject to the caps, each
          respondent is responsible for any portion of
          the total damages up to its cap.
          
       For punitive damages, each respondent is only
          responsible for the damages which have been
          assessed against it and only up to its
          applicable statutory cap.
          
       After the fact-finder has determined the amount of
          compensatory damages for emotional distress
          and future pecuniary harm, and the amount of
          punitive damages for which either or both
          respondents are liable, these amounts should
          be allocated between the two respondents in
          order to yield  the maximum payable relief for
          the charging party.
          
            If the total compensatory damages are within 
              the sum of the two respondents' caps, the 
              damages should be allocated to assure that
              the full amount is paid.   
                           
            If one or both respondents are liable for punitive
              damages as well as compensatory damages,
              and the total sum of damages is within
              the applicable caps, the damages should
              be allocated, both between the
              respondents, and between compensatory and
              punitive damages for each respondent, to
              assure full payment.  Thus, each
              respondent should pay the full amount of
              punitive damages for which it is liable,
              and any portion of the compensatory
              damages up to its statutory cap.
              
            If the sum of damages exceeds the sum of the applicable
              caps, the damages should be allocated,
              both between the respondents and between
              compensatory and punitive damages for
              each respondent, to maximize the payment
              to the charging party.      
              
          Example 14:  CP was assigned by
          Staff Serve to work as a security
          guard at a store called Value,
          U.S.A. ("Value").  CP was subjected
          to persistent and egregious racial
          epithets by two supervisory
          employees of the store.  CP
          complained several times to both a
          higher level manager at Value and to
          a supervisor at Staff Serve, but
          neither took any action to address
          the problem.  After being subjected
          to egregious racial epithets that
          involved his family, CP informed the
          manager at Value and the supervisor
          at Staff Serve that the situation
          was intolerable.  These individuals
          told CP to stop complaining and to
          live with these epithets as the
          price of holding the job.  CP
          stopped reporting to work and asked
          Staff Serve to assign him elsewhere,
          but the firm failed to do so.  CP
          was unable to find work for eight
          months.   
          
          CP files a charge against Staff
          Serve and Value.  The investigator
          determines that both are liable for
          the racial harassment and
          constructive discharge.  The
          investigator further determines that
          CP is due $40,000 in back pay and
          $60,000 in damages for emotional
          distress and that Staff Serve and
          Value are jointly and severally
          liable for these amounts. Although
          Value's conduct was at least as
          egregious as Staff Serve's, the
          investigator determines that Value's
          financial position is relatively
          weak, and that a punitive damage
          award of $30,000 against Value is
          appropriate, as compared to $50,000
          for Staff Serve.
             
          Staff Serve employs 137 employees
          (counting its regular staff people
          and the workers it has sent on
          assignment), and is subject to the
          $100,000 damages cap.  Value employs
          45 workers and is subject to the
          $50,000 cap on damages.
          
       In conciliation, the investigator determines
          that Staff Serve and Value should
          work out a division of the $40,000
          in back pay, for which they are
          jointly and severally liable.  The
          investigator further determines that
          the damages should be allocated as
          follows: Staff Serve should pay
          $40,000 and Value $20,000 in
          compensatory damages, and Staff
          Serve should pay $50,000 and Value
          $30,000 in punitive damages. CP can
          thus obtain the full amount of
          damages due him, with neither
          respondent's liability exceeding its
          cap. 
          
       Example 15:  Same facts as in Example 14, but
          CP only names Staff Serve as a
          respondent because Value has gone
          bankrupt.  The sum of compensatory
          and punitive damages assessed by the
          Commission is $110,000 ($60,000 for
          emotional distress and $50,000 in
          punitive damages assessed against
          Staff Serve).  The Commission
          pursues $100,000 in combined damages
          due to Staff Serve's statutory cap.
          The Commission and Staff Serve may
          agree to deduct the $l0,000 in
          excess of the caps from either the
          emotional distress or the punitive
          damages.   The Commission also
          pursues the full $40,000 in back pay
          from Staff Serve, which is not
          subject to the cap.
          
          Example 16:  Same facts as Example
          14, except that both Staff Serve and
          Value are subject to the $50,000
          cap.  CP could obtain only a total
          of $100,000 in damages, even though
          the sum of compensatory and punitive
          damages was $140,000.  The
          investigator works with CP and the
          respondents to determine how to
          allocate the damages between
          compensatory and punitive damages. 
          The full amount of back-pay remains
          payable since it is not subject to
          the caps.
                 CHARGE PROCESSING INSTRUCTIONS

When a charge is filed by a worker who was hired by a
temporary agency, contract firm, or other staffing firm
and who alleges discrimination by the staffing firm or
the firm's client, consider the following questions
(refer to the questions and answers in the guidance for
detailed information):

I.     Coverage
     
     1.     Is the charging party (CP) an employee or an
          independent contractor?  (Q&A 1)
          
          - Determine whether the right to control the
              means and manner of CP's work performance
              rested with the staffing firm and/or the
              client or with the worker herself. 
              Consider the factors listed in Question
              and Answer 1 of this guidance and all
              other aspects of CP's relationship to the
              firm and its client.
              
     If CP is an independent contractor, dismiss the
     charge for lack of jurisdiction.  If  CP is an
     employee, determine who qualifies as his or her
     employer.  It is possible that both the staffing
     firm and its client qualify as joint employers.  In
     that regard consider the following:
      
     2.     Is CP an employee of the staffing firm? (Q&A 2(a))
          
          - Consider the factors listed in Question 1 as
              they apply to the relationship between CP
              and the staffing firm.  
              
     3.     Is CP an employee of the firm's client?  (Q&A 2(b))
          
          - Consider the factors listed in Question 1 as
              they apply to the relationship between CP
              and the client.
              
     Even if the client does not qualify as CP's
     employer, it is still covered under the applicable
     anti-discrimination statute if it interfered on a
     discriminatory basis with CP's employment
     opportunities with the staffing firm and has the
     requisite number of employees. (Q&A 3)  The same is
     true if the staffing firm does not qualify as CP's
     employer.  However, a federal agency can only be
     held liable as an employer, not as a third-party
     interferer.  (Q&A 4)
     
     If CP is a welfare recipient alleging
     discrimination in a work-related activity connected
     with a welfare program, the above considerations
     apply to determine coverage.  (Q&A 5)  In such
     circumstances, the state or local welfare agency
     may function as a staffing firm and the employer
     for whom CP performed work as the client.
     
     4.     If there is a question about coverage, does the
          staffing firm and/or the client have the
          minimum number of employees to be covered
          under the applicable anti- discrimination
          statute?  (Q&A 6)
          
          - Ask the respondent to name and provide records
              regarding each individual who performed
              work for it during the applicable time
              period, including individuals assigned by
              staffing firms and any temporary,
              seasonal, or other contingent workers
              hired directly by the respondent. 
              Determine which of these individuals
              qualified as employees rather than
              independent contractors.
              
II.    Assignment Practices (Q&A 7)
       
     If CP alleges that a staffing firm declined to
     assign him or her to its client for discriminatory
     reasons, consider the following questions:
     
     1.     Does the evidence show that the staffing firm
          denied CP a job assignment for discriminatory
          reasons?
          
          - If so, the staffing firm is liable as an
              employer of CP for its discriminatory
              assignment practice, as a third party
              interferer, and/or as an employment
              agency for its discriminatory referral
              practice.
              
     2.     Does the evidence show that the client set
          discriminatory criteria for assignments by the
          staffing firm?
          
          - If so, the client is liable either as a joint
              employer of CP or a third party
              interferer.
              
III.   Discrimination at Work Site (Q&A 8, 9)
     
     If CP alleges that (s)he was subjected to
     discrimination while performing a job assignment
     for the staffing firm's client, consider the
     following questions:
     
     1.     Client: Does the evidence show that the client
          discriminated against CP?  
          
          - If so, the client is liable as CP's employer
              or as a third party interferer.  However,
              if the client is a federal agency it can
              only be held liable as an employer.
              
     2.     Staffing firm:
          
          a.     Does the evidence show that the staffing firm
              participated in its client's
              discrimination, e.g., by honoring the
              client's discriminatory request to
              replace CP with someone outside his or
              her protected class?
              
          b.     Does the evidence show that the staffing firm
              knew or should have known of its client's
              discrimination and failed to take
              immediate and appropriate corrective
              measures within its control?
              
              If the answer to (a) or (b) is "yes," the
          staffing firm is liable for its
          discrimination.
          
     IV.    Discriminatory Wage Practices (Q&A 10)
     If CP alleges that the staffing firm paid
     discriminatory wages for his or her work for the
     firm's client, consider the following:
     
     1.     Is there an Equal Pay Act violation?
          
          - Did the staffing firm assign a person of the
              opposite sex to the same client to
              perform substantially equal work and pay
              that individual a higher wage?
              
          If so, the staffing firm is liable for the EPA
          violation.  The client also can be found
          liable if it qualified as CP's joint employer.
          
     2.     Is there a violation of Title VII, the ADEA, or the
          ADA?
          
          - A violation of the EPA also constitutes a
              violation of Title VII as long as there
              is Title VII coverage.
              
          - A sex-based wage disparity violates Title VII
              even if the jobs are not substantially
              equal under EPA standards, if there is
              other evidence of wage discrimination. 
              Title VII also prohibits wage
              discrimination based on race, national
              origin, and religion.
              
          If  the respondent committed wage
          discrimination in violation of Title VII, the
          ADEA, or the ADA it is liable as CP's employer
          or as a third-party interferer.
          
V.     Allocation of Remedies (Q&A 11)
     
     If both the staffing firm and its client have
     unlawfully discriminated against CP, remedies can
     be allocated as follows:
     
     1.     CP can obtain the full amount of back pay, front
          pay, and compensatory damages from either
          respondent, or from both combined.
          
     2.     Punitive damages under Title VII and the ADA, and
          liquidated damages under the ADEA, are
          individually assessed against each respondent
          according to its degree of malicious or
          reckless misconduct.
          
     3.     The total amount paid by a respondent for future
          pecuniary damages, damages for emotional
          distress, and punitive damages cannot exceed
          its statutory cap.  
          
     Damages should be allocated between the respondents
     in a way that maximizes the payable relief to CP. 
     Contact the legal unit for advice in determining
     the allocation. 

1 June 18, 1997 News Release of the National Association of Temporary and
Staffing Services. 
     
2 Seasonal and temporary foreign employees performing work for companies
in this country form another category of the contingent workforce.  The
Commission intends to address at a future date particular issues regarding
coverage of these workers. 
     
3 Bureau of Labor Statistics, U.S. Dept. of Labor, Report 900, Contingent
and Alternative Employment Arrangements (August 1995). 
     
4 For a discussion of wage data for contingent workers, see Steven Hipple
and Jay Stewart, Earnings and benefits of workers in alternative work
arrangements, Monthly Labor Review 46 (October 1996). 
     
5 See Policy Statement on control by third parties over the employment
relationship between an individual and his/her direct employer, Compliance
Manual Section 605, Appendix F (BNA) 605:0087 (5/20/87); Policy Statement
on the concepts of integrated enterprise and joint employer, Compliance
Manual Section 605, Appendix G (BNA)  605:0095 (5/6/87); Policy Statement
on Title VII Coverage of Independent Contractors, Compliance Manual
Section 605, Appendix H (BNA) 605:0105 (9/4/87); and Policy Statement:
What constitutes an employment agency under Title VII, how should charges
against employment agencies be investigated, and what remedies can be
obtained for employment agency violations of the Act, Compliance Manual
(BNA) N:3935 (9/20/91). 

The above-referenced policy documents set forth some general principles
regarding coverage under the anti-discrimination statutes, and they remain
in effect.  The current guidance explains more specifically how the
coverage principles apply to workers who are hired by staffing firms and
placed in job assignments with the firms' clients. 
     
6 For a detailed explanation of the various types of staffing service work
arrangements, see Edward A. Lenz, Co-Employment - A Review of Customer
Liability Issues in the Staffing Services Industry, 10 The Labor Lawyer
195, 196-99 (1994). 
     
7 See, infra, cases cited in notes 12, 14, and 15.
     
8 The coverage principles set forth here apply not only to workers who are
hired by staffing firms and assigned to the firms' clients, but also to
temporary, seasonal, part-time, and other contingent workers who are hired
directly by employers. 
     
9 Nationwide Mutual Insurance Co. v. Darden, 503 U.S. 318, 324 (1992)
(quoting NLRB v. United Ins. Co. of America, 390 U.S. 254, 258 (1968))
(emphasis added). 
     
10 The listed factors are drawn from Darden, 503 U.S. at 323-324 (quoting
Community for Creative Non-Violence v. Reid, 490 U.S. 730, 751-752
(1989)); Rev Ruling 87-41, 1987-1 Cum. Bull. 296 (cited in Darden, 503
U.S. at 325); and Restatement (Second) of Agency § 220(2) (1958) (cited in
Darden, 503 U.S. at 325).  The Court in Darden held that the "common law"
test governs who qualifies as an "employee" under the Employee Retirement
Income Security Act of 1974 (ERISA). That test, as described by the Court,
is indistinguishable from the "hybrid test" for determining an employment
relationship adopted by the EEOC in the Policy Statement on Title VII
Coverage of Independent Contractors, Compliance Manual Section 605,
Appendix G (BNA) 605:0105 (9/4/87).  Although the Supreme Court has not
had occasion to address the standards that govern who is an "employee"
under Title VII, the ADEA, and the ADA, the rationale in Darden should
apply.  This is because the ERISA definition of "employee" that the Court
interpreted in Darden is identical to the definition of "employee" in
Title VII, the ADEA, and the ADA.

  Courts have stated that the definition of "employee" is broader under
the Fair Labor Standards Act (FLSA), of which the Equal Pay Act is a part,
than under the other EEO statutes.  However, there is no significant
functional difference between the tests.  Under the FLSA, employees are
those who, as a matter of economic reality, are dependent upon the
business to which they render service.  See 29 C.F.R. § 1620.8 (1996); 
Hodgson v. Griffin & Brand of McAllen, Inc., 471 F.2d 235 (5th Cir.)
(under FLSA's "economic realities" test, fruit and vegetable company
qualified as joint employer of harvest workers supplied by crew leaders),
reh'g denied, 472 F.2d 1405 (5th Cir.), cert.  denied, 414 U.S. 819
(1973).  All three tests (common law, hybrid, and economic realities)
consider similar factors and often result in the same conclusions as to
"employee" status. 
     
11 For additional guidance on criteria for determining whether two or more
entities are joint employers of a charging party, see EEOC's Policy
Statement on the concepts of integrated enterprise and joint employer,
Compliance Manual Section 605, Appendix G (BNA) 605:0095 (5/6/87). 
     
12 For cases holding that a staffing firm is an "employer" of the workers
it sends on job assignments, see Magnuson v. Peak Technical Services,
Inc., 808 F. Supp. 500, 508 (E.D. Va. 1992) (personnel firm that provided
employees to clients pursuant to service contracts and the worker that it
assigned to one of its clients "clearly had the type of direct
employer-employee relationship that is typically the subject of Title VII
lawsuits"), aff'd mem., 40 F.3d 1244 (4th Cir. 1994); Amarnare v. Merrill,
Lynch, Pierce, Fenner & Smith, 611 F. Supp. 344, 349 (D.C.N.Y. 1984)
(worker paid by "Mature Temps" employment agency and assigned to Merrill
Lynch for temporary job assignment was employee of both Mature Temps and
Merrill Lynch during period of assignment), aff'd mem., 770 F.2d 157 (2d
Cir. 1985).  Cf. NLRB v. Western Temporary Services, Inc., 821 F.2d 1258,
1266-67 (7th Cir. 1987) (NLRB correctly determined that temporary
employment service and its client were joint employers of temporary
worker);  Maynard v. Kenova Chemical Company, 626 F.2d 359, 362 (4th Cir.
1980) (temporary employee injured while working on defendant's premises
could not sue defendant in tort because he was employee of both defendant
and temp agency, and workers' compensation provided sole remedy). 
   
     The Commission disagrees with the rulings of the District Court of
Delaware in Williams v. Caruso, 966 F. Supp. 287 (D. Del. 1997), and
Kellam v. Snelling Personnel Services, 866 F. Supp. 812 (D. Del. 1994),
aff'd mem., 65 F.3d 162 (3d Cir. 1996).  In Williams, the court ruled that
a temporary employment agency was not a Title VII employer of a temporary
worker whom it hired and placed in a job assignment.  The court followed
its earlier reasoning in Kellam, in which it declined to count the workers
assigned by a temporary employment agency as its employees on the ground
that the agency did not supervise the workers on a day-to-day basis.  In
the Commission's view, the court in both cases placed undue emphasis on
daily supervision of job tasks and underestimated the significance of
other factors indicating an employment relationship. 
     
13 See, e.g., Astrowsky v. First Portland Mortgage Corp., 887 F. Supp. 332
(D.  Me. 1995) (holding that employee leasing firm was not a joint
employer of workers that it leased back to original employer; firm only
processed pay checks and made tax withholdings but did not exercise any
control over employees; original employer remained exclusive employer of
the workers for purposes of EEO coverage). 
     
14 See Reynolds v. CSX Transportation, Inc., 115 F.3d 860 (11th Cir. 1997) 
(finding that temporary employment agency's client qualified as employer
of worker assigned to it and upholding jury award for retaliation by
client); King v. Booz-Allen & Hamilton, Inc., No. 83 Civ. 7420 (MJL), 1987
WL 11546, n.3 (S.D.N.Y. May 21, 1987) (finding that plaintiff who was paid
by temporary employment agency and assigned to work at Booz-Allen was an
employee of Booz- Allen); Amarnare, 611 F.  Supp. at 349 (finding that
temporary employment agency's client qualified as joint employer of worker
assigned to it). 
     
15 See Rev. Rul. 87-41, 1987-1 Cum. Bull. 296, 298-99, cited in Nationwide
Mutual Insurance Company v. Darden, 503 U.S. 318, 324 (1992) (concluding
on above facts that the staffing firm was the individual's employer, but
not addressing the status of the client vis-a-vis the worker). 
     
16 For examples of cases finding that a client of a staffing firm can
qualify as a joint employer of the worker assigned to it, see Poff v.
Prudential Insurance Co. of America, 882 F. Supp. 1534 (E.D. Pa. 1995)
(where plaintiff was hired by computer services contractor and assigned to
work on-site at insurance company, issue of fact existed as to whether
insurance company exercised sufficient control over the manner and means
by which plaintiff's work was accomplished to qualify as employer);
Magnuson, 808 F.  Supp. at 508-10 (where car company contracted with
staffing firm for plaintiff's services and assigned her to work at its car
dealership, genuine issue of fact was raised as to whether car company,
dealership, and staffing firm all qualified as her joint employers); 
Guerra v. Tishman East Realty, 52 Fair Empl. Prac. Cas. (BNA) 286
(S.D.N.Y. 1989)  (security guard employed by management firm who worked in
building owned by insurance company could seek to prove that insurance
company exercised sufficient control over him to qualify as his
"employer"); EEOC v. Sage Realty, 507 F. Supp. 599 (S.D.N.Y. 1981)
(building management company that contracted with cleaning company for
services of building lobby attendant qualified as joint employer of lobby
attendant;  contractor carried lobby attendant on its payroll but
management company supervised her day-to-day work).

  For examples of cases finding that the client did not qualify as a joint
employer of the contract worker because the client did not have sufficient
control over the worker, see Rivas v. Federacion de Asociaciones
Pecuarias, 929 F.2d 814 (1st Cir. 1991) (client of shipping services
contractor was not a joint employer of workers who unloaded ships; 
although client set time for ship unloading, had some disciplinary
authority over foremen, and directed order of unloading, contractor
selected, scheduled, and supervised the workers and handled disciplinary
matters); King v. Dalton, 895 F. Supp. 831 (E.D.  Va. 1995) (Navy was not
joint employer of worker assigned by contract firm to work on project due
to insufficient direct supervisory control over the daily details of the
plaintiff's work). 
     
17 See 42 U.S.C. § 2000e-2(a) (Title VII), 29 U.S.C. § 623(a)  (ADEA), and
42 U.S.C. § 12112(a) (ADA), which do not limit their protections to a
covered employer's own employees, but rather protect an "individual" from
discrimination.  Section 503 of the ADA, 42 U.S.C. § 12203(b),
additionally makes it unlawful to "interfere with any individual in the
exercise or enjoyment of ... any right granted or protected by this
chapter."  The EPA, 29 U.S.C. § 206, limits its protections to an
employer's own employees, and therefore third party interference theory
does not apply.
  For cases allowing staffing firm workers to bring claims against the
firms' clients as third party interferers, see King v. Chrysler Corp., 812
F. Supp. 151 (E.D. Mo. 1993)  (cashier employed by company that operated
cafeteria on automobile company's premises could sue automobile company
for failing to take sufficient corrective action to remedy sexually
hostile work environment; Title VII does not specify that employer
committing an unlawful employment practice must employ the injured
individual); Fairman v. Saks Fifth Avenue, 1988 U.S. Dist. LEXIS 13087
(W.D. Mo. 1988)  (plaintiff who was employed by cleaning contractor to
perform cleaning duties at store and who was allegedly discharged due to
her race could proceed with Title VII action against store; store claimed
that it was not plaintiff's employer because it did not pay her wages,
supervise her or terminate her; however, even if the store was not
plaintiff's employer, it could be sued for improperly interfering with her
employment opportunities with the cleaning contractor); Amarnare, 611 F.
Supp. at 349 (temporary employee assigned by "Mature Temps" to work for
Merrill Lynch could challenge discrimination by Merrill Lynch either on
basis that Merrill Lynch was her joint employer or that Merrill Lynch
interfered with her employment opportunities with Mature Temps). 
     
18 See Policy Statement on control by third parties over the employment
relationship between an individual and his/her direct employer, Compliance
Manual Section 605, Appendix F (BNA) 605:0087 (5/20/87). 
     
19 While Title I of the ADA only applies to entities with fifteen or more
employees, the Commission has not yet addressed the scope of the
interference provision in Section 503, which applies to all titles of the
ADA and does not contain a specific coverage limitation.  See n.17. 
     
20 See Carparts Distribution. Ctr. v. Automotive Wholesalers, 37 F.3d 12,
17-18 (1st Cir. 1994) (trade association and its administering trust for
health benefit plan provided by plaintiff's employer was sued under Title
I for limiting coverage of AIDS;  court held that defendants were covered
under Title I if they functioned as plaintiff's employer with respect to
his health care coverage or if they affected plaintiff's access to
employment opportunities); Spirt v. Teachers Insurance and Annuity Ass'n,
691 F.2d 1054, 1063 (2d Cir. 1982) (association that managed retirement
plans for college and university employees could be found liable for using
sex-based mortality tables to calculate benefits; although association was
not plaintiff's "employer" in any commonly understood sense, the term
"employer" under Title VII encompasses any party who significantly affects
worker's access to employment opportunities), vacated and remanded sub nom
Long Island University v. Spirt, 463 U.S. 1223 (1983), reinstated on
remand, 735 F.2d 23 (2d Cir.), cert. denied, 469 U.S. 883 (1984). 
     
21 See Mares v. Marsh, 777 F.2d 1066 (5th Cir. 1985) (in determining
whether individual is a federal employee for purposes of Title VII
coverage, key issue is extent to which government exercises control over
that individual).  For guidance on procedures in handling joint federal
sector/private sector complaints, see Question 9.
     
22 42 U.S.C. § 20003-16(a) (Title VII); 29 U.S.C. § 633(a) (ADEA);  29
U.S.C. § 794a (Rehabilitation Act, incorporating remedies, procedures and
rights set forth in 42 U.S.C. § 2000e-16). See King v. Dalton, 895 F.
Supp. at 836 n.7 (plain terms of § 2000e-16 require a plaintiff to be an
employee of the defendant agency); Spirides v. Reinhardt, 613 F.2d 826,
829 (D.C. Cir. 1979) (§ 2000e-16 "cover[s] only those individuals in a
direct employment relationship with a government employer"). 
     
23 A variety of work and work-related activities may be required as a
condition of receipt of welfare, food stamps, or other benefits.  Under
the Personal Responsibility and Work Opportunity Reconciliation Act of
1996, P.L. 104-193, 110 Stat. 2105 (1996), for example, welfare recipients
may be required to perform work activities which are defined to include
unsubsidized employment, subsidized private or public sector employment,
work experience, on-the-job training, job search and job readiness
assistance, community service programs, vocational educational or job
skills training, educational activities, or child care services.  Section
103 of Welfare Reform Act, 110 Stat. 2133, amending Part A of Title IV of
Social Security Act, 42 U.S.C. § 601, et seq.  See also Section 824 of
Welfare Reform Act, 110 Stat. 2323, amending Section 6 of Food Stamp Act
of 1977, 7 U.S.C. § 2015. 
     
24 The Balanced Budget Act of 1997, P.L. 105-33, 111 Stat. 251 (1997),
requires each state that receives a grant from the Secretary of Labor as a
"welfare-to-work state"  to establish a procedure for handling complaints
by participants in work activities who allege certain violations,
including gender discrimination.  The Act does not preempt application of
Title VII, the ADEA, the ADA, or the EPA.  See Morton v. Mancari, 417,
U.S. 535, 550 (1973).  Therefore, welfare recipients who perform work
activities and qualify as "employees" are covered under the anti-
discrimination statutes enforced by the EEOC. 
     
25 Title VII specifically makes it unlawful to discriminate in admission
to or employment in any program established to provide apprenticeship or
other training.  42 U.S.C. § 2000e- 2(d).  The ADA and the ADEA also
prohibit discrimination in job training and apprenticeship programs.  42
U.S.C. § 12112(a); 29 C.F.R.  § 1625.21. 
     
26 The Commission notes that other federal statutes prohibit
discrimination in federally-assisted education and training programs. 
See, e.g., Title VI of the Civil Rights Act of 1964, 42 U.S.C.§ 2000d, et
seq.; Title IX of the Education Amendments of 1972, 42 U.S.C.§ 1681, et
seq., and Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794. 
Complaints about discrimination in education or other non-employment
programs should be referred to the Offices for Civil Rights in the federal
agencies that fund such programs. 
     
27 Title VII and the ADA apply to any employer who has fifteen or more
employees for each working day in each of twenty or more calendar weeks in
the current or preceding calendar year.  42 U.S.C. § 2000e(b).  The ADEA
applies to any employer who has twenty or more employees for each working
day in each of twenty or more calendar weeks in the current or preceding
calendar year.  29 U.S.C. § 630(b).  Counting issues do not arise in EPA
claims because that Act applies to any employer who has more than one
employee engaged in commerce or in the production of goods for commerce,
unless an exception applies.  29 C.F.R. § 1620.1 - 1620.7. 
     
28 Cf. 29 C.F.R. § 825.106(d) (1996) (under the Family and Medical Leave
Act, employees jointly employed by two employers must be counted by both
employers, whether or not they are maintained on both employers' payrolls,
in determining employer coverage and employee eligibility). 
     
29 EEOC & Walters v. Metropolitan Educ. Enterprises, 117 S. Ct. 660
(1997).  For guidance on how to count employees when determining whether a
respondent satisfies the jurisdictional prerequisite for coverage, see
Enforcement Guidance on Equal Employment Opportunity Commission & Walters
v. Metropolitan Educational Enterprises, 117 S. Ct. 660 (1997), Compliance
Manual (BNA) N:2351 (5/2/97). 
     
30 Staffing firms and their clients are subject to the same record
preservation requirements as other employers that are covered by the
anti-discrimination statutes. They therefore must preserve all personnel
records that they have made relating to job assignments or any other
aspect of a staffing firm worker's employment for a period of one year
from the date of the making of the record or the personnel action
involved, whichever occurs later.  Personnel records relevant to a
discrimination charge or an action brought by the EEOC or the U.S.
Attorney General must be preserved until final disposition of the charge
or action.  29 C.F.R. §§ 1602.14, 1627.3(b).  The Commission can pursue an
enforcement action where the respondent fails to keep records pertaining
to all its contingent and non-contingent employees and applicants for
employment. 
     
31 Section 701(c) of Title VII defines the term "employment agency" as
"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."  For further
guidance, see Policy Guidance: What constitutes an employment agency under
Title VII, how should charges against employment agencies be investigated,
and what remedies can be obtained for employment agency violations of the
Act?, Compliance Manual (BNA) N:3935 (9/29/91). 
     
32 The questions and answers in this section assume that the staffing firm
is an "employer" of the worker. 
     
33 See EEOC Guidelines on Sexual Harassment, 29 C.F.R. § 1604.11(3) 
(1996) (an employer is liable for harassment of its employee by a
non-employee if it knew or should have known of the misconduct and failed
to take immediate and appropriate corrective action within its control).
See also Caldwell v. ServiceMaster Corp. and Norrell Temporary Services,
966 F. Supp. 33 (D.D.C. 1997) (joint employer temporary agency is liable
for discrimination against temporary worker by agency's client if agency
knew or should have known of the discrimination and failed to take
corrective measures within its control);  Magnuson v. Peak Technical
Servs., 808 F. Supp. 500, 511-14 (E.D. Va. 1992) (where plaintiff was
subjected to sexual harassment by her supervisor during a job assignment,
three entities could be found liable: staffing firm that paid her salary
and benefits, automobile company that contracted for her services, and
retail car dealership to which she was assigned; staffing firm and
automobile company were held to standard for harassment by non-employees,
under which an entity is liable if it had actual or constructive knowledge
of the harassment and failed to take immediate and appropriate corrective
action within its control); EEOC v. Sage Realty, 507 F. Supp.  599,
612-613 (S.D.N.Y. 1981) (cleaning contractor and joint employer building
management company found jointly liable for sex discrimination against
lobby attendant on contractor's payroll where management company required
attendant to wear revealing costume that subjected her to harassment by
passersby, and where plaintiff was discharged for refusing to continue
wearing outfit; court rejected contractor's argument that management
company was exclusively liable because it had set the costume requirement; 
contractor knew of plaintiff's complaints of harassment and there was no
evidence that it was powerless to remedy the situation); cf. Capitol EMI
Music, Inc., 311 N.L.R.B. No. 103, 143 L.R.R.M. (BNA) 1331 (May 28, 1993)
(in joint employer relationships in which one employer supplies employees
to the other, National Labor Relations Board holds both joint employers
liable for unlawful employee termination or other discriminatory
discipline if the non- acting joint employer knew or should have known
that the other employer acted against the employee for unlawful reasons
and the former has acquiesced in the unlawful action by failing to protest
it or to exercise any contractual right it might possess to resist it). 
     
34 Cf. Paroline v. Unisys Corp., 879 F.2d 100, 107 (4th Cir. 1989)
(employer is liable where it anticipated or reasonably should have
anticipated that plaintiff would be subjected to sexual harassment yet
failed to take action reasonably calculated to prevent it; "[a]n
employer's knowledge that a male worker has previously harassed female
employees other than the plaintiff will often prove highly relevant in
deciding whether the employer should have anticipated that the plaintiff
too would become a victim of the male employee's harassing conduct"),
vacated in part on other grounds, 900 F.2d 27 (4th Cir. 1990). 
     
35 If the federal agency refuses to accept the complaint based on a belief
that the staffing firm worker is not its employee, the worker can file an
appeal with the Commission's Office of Federal Operations. 
     
36 If the federal agency does not wish to coordinate the investigations,
then the EEOC office should proceed independently.  If the federal agency
refuses to provide documents or testimony requested by the EEOC
investigator, the Commission can issue a subpoena to compel production of
the evidence. 
     
37 The EPA applies to any employer that has more than one employee engaged
in commerce or in the production of goods for commerce, unless a statutory
exception applies.  29 U.S.C. § 203(s). 
     
38 See Compliance Manual Section 708.5(3) (BNA) 708:0023.  As that
subsection explains, in determining whether a wage differential between
temporary and permanent employees is based on a factor other than sex, the
following issues should be considered: 1) whether the wage differential is
applied uniformly to males and females;  2) whether the differential
conforms with the nature and duration of the job; and 3) whether the
differential conforms with a nondiscriminatory customary practice within
the industry and establishment. 
     
39 See 29 C.F.R. § 1620.8 (1996) (two or more employers may be jointly or
severally responsible for compliance with EPA requirements applicable to
employment of a particular employee).  For guidance on elements of an EPA
claim, see Compliance Manual Sections 704 and 708 (BNA) 704:001 and
708:001, et seq.  Cf., 29 C.F.R. § 791.2 (1996) (regulations issued by
Wage and Hour Division, Department of Labor, on Joint Employment
Relationship under FLSA) (joint employers are individually and jointly
responsible for compliance with FLSA, including overtime requirements). 

  The EPA, unlike Title VII, the ADA, and the ADEA, only permits claims by
employees against their employers, not against third party interferers. 
     
40 If the EEOC determines that the client had no involvement in or control
over the wages paid to the worker, it may decline to pursue relief against
the client. 
     
41 For guidance on wage discrimination claims under Title VII, see
Compliance Manual Section 633 (BNA) 633:001, et seq.  Title VII prohibits
wage discrimination on the basis of race, national origin, and religion,
as well as sex. 
     
42 However, even where there is joint liability, neither a charging party
nor the Commission is obliged to pursue a claim against both entities; nor
does one party have a right to bring the other into the proceeding, or a
right of contribution from the other.  See Northwest Airlines, Inc. v.
Transport Workers Union of America, 451 U.S. 77, 91-95 (1981); EEOC v.
Gard Corp. v. Tall Services, Inc., 795 F. Supp. 1070, 1071-72 (D.  Kan.
1992). 
     
43 Punitive damages are not available against federal, state, and local
government agencies.
     
44 Liquidated damages under the ADEA are punitive in nature.  Trans World
Airlines v. Thurston, 469 U.S. 111, 125 (1985).  Therefore, each
respondent individually bears a liquidated damages award under the ADEA. 
     
45 See Hafner v. Brown, 983 F.2d 570, 573 (4th Cir. 1992) (holding under
42 U.S.C. § 1983 that compensatory damages are joint and several but
punitive damages are born by each defendant individually); Erwin v. County
of Manitowoc, 872 F.2d 1292, 1296 (7th Cir. 1989) (same); Bosco v.
Serhant, 836 F.2d 271, 280-81 (7th Cir. 1987) (tort principles require
joint and several liability for compensatory damages but not punitive
damages), cert. denied, 108 S. Ct. 2824 (1988); Hurley v. Atlantic City
Police Dept., 933 F. Supp. 396, 420-23 (D.N.J. 1996) (reaching same
conclusion in a Title VII case). 
     
46 The respondents are also jointly and severally liable for liquidated
damages in EPA claims because such damages are compensatory in nature. 
Laffey v. Northwest Airlines, 740 F.2d 1071, 1096 (D.C. Cir. 1984), cert.
denied, 469 U.S. 1181 (1985);  Marshall v. Bruner, 668 F.2d 748, 753 (3d
Cir. 1982). 
     
47 Compensatory and punitive damages are available in Title VII and ADA
cases, and in retaliation cases under the ADEA and the EPA.  The ADEA and
EPA damages, which are not subject to statutory caps, are available
pursuant to a 1977 amendment to the Fair Labor Standards Act that
authorizes both legal and equitable relief for retaliation claims.  29
U.S.C. § 216(b).  See Moskowitz v. Trustees of Purdue University, 5 F.3d
279, 283-84 (7th Cir. 1993) (FLSA amendment allows common law damages
where plaintiff is retaliated against for exercising his rights under
ADEA); Soto v. Adams Elevator Equip. Co., 941 F.2d 543, 551 (7th Cir.
1991) (FLSA amendment authorizes compensatory and punitive damages for
retaliation claims under EPA, in addition to lost wages and liquidated
damages). 
     
48 42 U.S.C. § 1981a(c)(2). 
     
49 The financial position of the respondent is a relevant factor in
assessing punitive damages.  City of Newport v. Fact Concerts, Inc., 453
U.S. 47, 270 (1981).

  For guidance on the various factors to consider in calculating
compensatory and punitive damages, see Enforcement Guidance:  Compensatory
and Punitive Damages Available under § 102 of the Civil Rights Act of
1991, Compliance Manual (BNA)  N:6071 (7/14/92).
     
50 See EEOC v. Sage Realty, 507 F. Supp. 599, 612-13 (finding two joint
employers responsible for harassment of worker and holding them jointly
and severally liable for back pay).