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Temporary Employee Unable to Establish Claim of Discrimination

By:  R. Eddie Wayland, TCA Legal Counsel

In a recent case before the United States Court of Appeals for the Tenth Circuit, the Court addressed whether an employer’s denial of a temporary employee’s request for an unspecified amount of time off, relating to a recently diagnosed medical condition, violated the Americans with Disabilities Act or the Genetic Information Act. Prior to the denial of leave the temporary employee missed multiple days of work, was often tardy or left work early. Based on these combined events, the employer chose to terminate the temporary employee. In response, the temporary employee brought suit against the employer alleging, among other claims, a failure to reasonably accommodate her disability.


The employer entered into an agreement with a staffing agency in which the staffing company would provide temporary employees to the employer on an as needed basis. Under the terms of the agreement, the employer had the right to terminate any temporary employee at will and the staffing agency likewise had the right to cancel any assigned employee’s assignment as needed. In line with this agreement, the temporary employee signed an employment agreement with the staffing agency acknowledging that her assignments may be cancelled at any time.

The temporary employee was assigned to work for the Company as a receptionist. Just before starting her new assignment the employee underwent a mammogram screen. Ultimately, further tests were ordered and it was revealed that the employee had breast cancer. The employee continued her assignment with the Company as a receptionist, but as described above had continuing problems with attendance which in part related to the employee’s ongoing medical testing and related appointments.

During the temporary employee’s short six-week tenure as a receptionist she failed to work a single full 40-hour work week as required by the contract, was absent from work on six separate occasions of which only three corresponded with documented medical appointments, often arrived late to work by several hours, and left work early on three separate occasions. The attendance event that ultimately led to the employee’s termination occurred when the employee abruptly informed her employer that she would not be at work for an entire week in order to undergo further medical testing. No formal request was made to the employer to have these days off; instead the employee simply notified the employer via email that she would not be at work for the entire week plus an unspecified amount of time beyond that week.

After further e-mail discussion with the employee, the employer decided to end the assignment. The stated reason given by the employer to the staffing agency was that they “needed an employee that’s going to be able to show up and fulfill the needs of the position.” According to the employee she was informed that the employer chose to terminate the assignment “because [she] would be very unreliable having cancer.” Whether this later statement was made is disputed.

Under the terms of the employee’s arrangement with the staffing agency, the temporary employee could request new work once a previous assignment ended or the staffing agency could contact her with new assignments. The staffing agency subsequently did contact the employee with additional opportunities; however, these requests were turned down by the employee. The employee did not reach out to the staffing agency for a new assignment.

The District Court

The temporary employee filed a lawsuit bringing claims against both the staffing agency and the employer. She alleged claims of disability discrimination and genetic information discrimination. After discovery, the defendants moved for summary judgment seeking to have the case dismissed. This motion was granted by the district court which found that the employee failed to provide direct evidence of any discriminatory motivation relating to her termination. The temporary employee appealed this ruling.

The U.S. Court of Appeals

On appeal, the appellate court noted that the lower court had misconstrued the standard for claims brought under the Americans with Disabilities Act and sought to clarify. The Court noted that in most instances, in order to bring a claim under the Act the employee must establish some relationship between the disability and the adverse employment action. It is not enough that the employee be disabled and subsequently terminated. There must be some further correlation between the two events. Further, it is the employee’s burden to provide evidence that the termination was because of the disability. This evidence can be either direct or circumstantial.

An exception to the above standard applies, however, if the employee alleges that the employer failed to reasonably accommodate the employee’s disability. Discrimination in this context does not require the employer to be motivated by discriminatory intent. Instead, any failure to provide a “reasonable” accommodation for the disability can be construed as discrimination. Under a reasonable accommodation claim, an employee must establish that the employer knew she was disabled, that she was otherwise qualified for the position she sought, and that the accommodation sought was reasonable.

After a review of the facts, the appellate court concluded that the employee failed to establish that she had requested a reasonable accommodation. Simply informing the employer that she was not coming into work for an undetermined amount of time due to “some appointments and tests” was not a request for a reasonable accommodation. The Court noted that an employee is required to inform the employer of the expected length of the impairment and not just the length of time the sought off from work. The temporary employee’s claim of genetic discrimination also failed because the employee was unable to establish that her termination was related to the genetic condition. As such, the Court upheld the ruling dismissing the litigation.


As this case demonstrates, employers can be sued not only by their own employees but also by temporary employees working in their workplace. Just because an individual is a temporary employee placed through a third-party staffing firm, does not mean that the applicable and appropriate step and should not be taken. When an employer is made aware that one of their employees potentially suffers from a disability it is important that an employer treat the matter in an appropriate fashion. Even if the individual is a temporary employee, due steps and considerations in dealing with the situation should be taken to protect the company’s interest. Before making any potential adverse employment decision in such a situation a thorough review of the overall facts and circumstances is warranted, including consulting with counsel knowledgeable with employment law, if necessary.

R. Eddie Wayland is a partner with the law firm of King & Ballow. You may reach Mr. Wayland at (615) 726-5430 or at The foregoing materials, discussion and comments have been abridged from laws, court decisions, and administrative rulings and should not be construed as legal advice on specific situations or subjects.

August 31, 2017