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Abstract

Contingent workers—those employed by staffing firms and contracting firms but often subject to the supervision and control of a firm’s client—are a particularly vulnerable class of employees, less likely to be treated by their employers with the same degree of protection against workplace discrimination as workers in traditional employment arrangements. The Tenth circuit case of Armstrong v. Arcanum Grp. Inc. magnified yet another disadvantage that contingent workers run up against when attempting to challenge an alleged discriminatory decision. Following Armstrong, contingent workers who premise their retaliatory or discriminatory discharge claims on the acts of biased employees who influence employment decisions cannot succeed unless the biased employee and the injured worker share a common employer. This rule, justified by the Tenth Circuit as an extension of agency law, confounds the ability of contingent workers to hold staffing agencies liable when their decisions to suspend or terminate an employee’s position are influenced by the biased actions of client employees. In Title VII vernacular, these employees would not have a viable cat’s paw claim. Such a predicament is exactly of the kind that the plaintiff in Armstrong found herself in when federal agency officials spurned by Armstrong’s allegations of fraudulent financial reporting convinced her staffing agency employer to remove her from her federal position. This note exposes the effective Title VII coverage gap created by cases like Armstrong and leans on EEOC guidance tailored to the needs and interests of contingent workers in its proposal of a solution to bridge the gap.

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Creative Commons Attribution-Noncommercial-No Derivative Works 4.0 License
This work is licensed under a Creative Commons Attribution-Noncommercial-No Derivative Works 4.0 License.

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