By March 2015, an unnamed job seeker we’ll call “Mary” had grown frustrated. She had been trying in vain for almost two years to get work through staffing agency BaronHR, which places applicants in security, hospitality, transportation, and technical roles. Mary decided to visit BaronHR’s office in Carson, California, to inquire about a position in-person.
At the office, Mary, who is Black, saw a “group of workers training for assignment,” according to a 2022 lawsuit brought by the Equal Employment Opportunity Commission against BaronHR. She asked the receptionist what client these workers were training for, and if she might be eligible for that same placement.
They were prepping for work with BaronHR’s client, laundry services company Radiant, the receptionist replied, going on to explain that Radiant didn’t hire Black workers. Mary never got a placement through BaronHR, which had, according to the EEOC’s lawsuit, been continuously “screening out non-Hispanic applicants” to fill what it called Radiant’s “largely homogenous Hispanic/Latino(a) workforce.”
In April 2024, the EEOC announced that BaronHR would pay out $2.2 million to settle its hiring discrimination lawsuit. Turns out, BaronHR had, per the suit, engaged in other discriminatory hiring practices for Radiant for roughly the past decade. It abided by Radiant’s requests to find only male workers for certain posts, like “transporting heavy loads,” and fill roles that involved lighter lifts like folding and ironing with women. The staffing agency also screened out candidates with history of injury—a violation of the Americans with Disabilities Act. (BaronHR did not respond to a request for comment. Per a statement from the time of the lawsuit, the company denied “all allegations of wrongdoing in connection with the EEOC complaint.” As of April 2024, the EEOC reported that BaronHR was “winding down its business operations.”)
Qualities like these fall under the EEOC’s list of “protected characteristics,” says Joy Einstein, a partner in the Labor and Employment Law Group at the Maryland legal firm Shulman Rogers. “You can’t discriminate against an applicant on the basis of race, color, religion, sex, national origin . . . [or] stereotypes based on the same characteristics.” Age, disability status, sexual orientation, pregnancy status, and national origin also make the list.
Still, according to some HR experts, the practice of staffing agencies placing workers based on those characteristics, at the either explicit or indirect request of their clients, is prevalent. Per Shulman Rogers, the EEOC filed “at least ten lawsuits” against staffing agencies for hiring discrimination in 2021. The same month BaronHR’s settlement was announced in 2024, the Justice Department also publicized a settlement with staffing company Infinity Employment Solutions Inc. for discriminating against a worker based on their citizenship status.
Two months later, the JD announced a settlement with online staffing agency eTeam for similar reasons. The staffing agency was fined $232,500 in civil penalties and $325,000 in compensation for affected workers. Hiring discrimination via staffing agencies, says Einstein, “happens more often than you think.”
Staffing agencies are one of the more common ways that workers get placed in jobs, especially in temporary roles and in industries including hospitality, healthcare, customer service, and construction. As of 2023, there were more than 23,000 employment and recruiting agencies operating in the U.S., according to the research firm IBIS World. These firms place millions of job applicants a year. The American Staffing Agency, a research and advocacy group focused on workforce solutions, reports staffing companies in the US hired 12.7 million temporary and contract employees in 2023.
Because of the ubiquity of these agencies, and the frequency of employers making illegal asks (either out of ignorance, or in spite of hiring antidiscrimination laws), it’s important that workers at these agencies learn how to tread carefully when filling roles for their clients.
After all, there are ways staffing agencies can help employers turn discriminatory asks into lawful hiring requests. It starts with knowing what hiring discrimination looks like at the staffing agency level.
Decoding clients’ discriminatory requirements
Hiring discrimination that plays out between staffing agencies and their clients isn’t always as straightforward as in BaronHR’s case. Often, employer requests are more “coded,” says Brooke Salazar, owner of employment-focused law firm KB Salazar Legal. For instance, they might ask a staffing agency for “energetic” workers, “somebody right out of college,” or a person looking for an “entry point into this career,” she says—all code for someone young, which constitutes age discrimination.
Other staffing “dog whistles” include phrases like “culture fit,” says Salazar, who worked in human resources for a staffing and consulting firm for more than a decade before transitioning to practice law. That can mean someone with similar demographics to the rest of the team—“somebody that looks like us or practices religion like us,” she says.
When employers ask for “strong workers,” says Einstein, they tend to mean “men,” and staffing agencies know how to interpret that accordingly. Folks who can work “extremely long hours” translate to younger people, or those without families or childcare responsibilities.
Even asking questions about prospective workers’ hobbies during the recruitment process can get dicey. “What if somebody responds and says, ‘My number one hobby is being a youth counselor through my church,’” says Einstein. That data point alone might facilitate religion-based discrimination.
Disappointing the ‘revenue source’
Companies may not always realize when they’re engaging in hiring discrimination through staffing agencies. “Employers using staffing agencies for some reason feel entitled to request whatever they want,” says Einstein. Because they’re paying for a service, they might assume it’s fully bespoke and end up making unlawful specifications.
“A lot of organizations don’t understand that when they use staffing agencies,” says Salazar. “It does not protect them from all kinds of employment laws.”
This ignorance may apply on both sides. Einstein represents both staffing agencies and the clients who hire them. She often finds that staffing agencies are “shocked” to have liability for carrying out clients’ demands. Aren’t they just doing their jobs by acting in their clients’ best interests? “I can’t tell you how many calls I’ve had where the staffing company is like, ‘I don’t understand—all I was doing was following what the customer asked for,’” Einstein says.
The pressure on these agencies to give clients what they want is largely financially motivated, as agencies only get paid for successful placements. Toni, a former staffing agency worker who asked to use her first name only to avoid jeopardizing her current business, says bringing employers potential hires who don’t fit their criteria would be like a car salesman taking a customer who’s looking for a Toyota over to the Jaguars. “The boss will probably fire you,” she says, for failing to meet a customer’s demands.
The head of the agency Toni previously worked for would give her employees blunt parameters, like, “[This client] is not going to hire a woman for that position.” Going against those directives meant losing out on commissions and potentially falling behind colleagues who were willing to discriminate. In other cases, staffing agencies might get comfortable with the HR contacts at the companies they’re hiring for, asking questions that could lead to employment law infringements to ensure they’re fulfilling the company’s desires.
Toni says she’s watched the staffing agency field grow more competitive in the years since she started there. “Now [companies] may give the job order to three or four employment agencies,” she says, giving those agencies even more incentive to cut to the chase with clients about their employment wishes.
Even when staffing agencies know their actions constitute hiring discrimination, “it can be hard,” says Salazar, “because they face that difficult conundrum of telling their client—their revenue source—that those types of decisions aren’t legal, and they’re not the best way to do business.”
Better ways to do business
What is a better way to do business in these tricky situations? Salazar suggests some methods for turning an employer’s discriminatory hiring requests into above board asks.
For example, an employer may say it’s looking for someone young because the available role is an ideal entry-level job. To help an employer remove ageism from this request, a staffing agency could point out that an entry-level role might apply to someone changing careers who’s older.
In her work at a staffing agency, Salazar would approach this by telling clients something like, “I’m sure you understand we can’t do that based on these laws, but help me understand what you’re trying to get to.”
Staffing agencies can help expose employers’ own misconceptions when it comes to what they’re seeking. When an employer asks for an “energetic” (aka, young) job candidate, staffing agency workers can challenge them about what “energetic” means. Salazar says she’s worked with hiring managers who, when pushed on why they want someone young to fill a role, will say it’s because they want them to be able to quickly adapt to technology—but the technology they’re using at work is mainly Excel spreadsheets and Microsoft Teams, widely used software that people of all ages can easily grasp.
Staffing agency employees have some possible recourse when they get a discriminatory hiring request. “You can always refuse and tell the [client] it’s against the law,” says Einstein. Or you can “report it up the chain,” she adds, and ideally your staffing agency will have a company policy against discriminatory requests to refer clients to. If staffing agency employees face pushback from their bosses, they can report complaints directly to the EEOC.
Education can help nip hiring discrimination in the bud. “It’s so important for both parties, the staffing agency and the client, to regularly engage in training so they do not fall afoul of these laws,” says Salazar, and for staffing agencies to train employees that “the customer is not always right.”
Abiding by hiring laws, after all, tends to boost companies’ productivity. A series of management consulting firm McKinsey reports from 2015 to 2023, for example, found that companies with more diverse executive teams performed better financially than those with less diversity. Hiring discrimination, at the end of the day, is “truly bad for a business and revenue,” says Salazar. “The more diverse [your employees are], the more profitable your business will be.”
