A federal judge in December 2018 held that an executive recruiter was not responsible for an employer’s decision to eliminate a female candidate from consideration — allegedly because of gender discrimination. Thus, the court ended a lawsuit against executive recruiting firm SSI Inc. and two of its former employees.
Ileana Simplicean was recruited by SSI to apply for a general counsel position with Visteon, an automotive parts supplier that was spun off from Ford Motor Co. According to the lawsuit, in addition to asking Simplicean to apply for the position, the recruiter conducted an initial screening and interview, and subsequently submitted her name along with the names of two male candidates.
Visteon, however, eliminated Simplicean from consideration, allegedly after hearing that she was better as a second-in-command than as a leader.
Simplicean sued SSI and the two ex-employees — not Visteon — for gender discrimination under Michigan’s Elliot Larsen Civil Rights Act.
The court rejected all of Simplicean’s allegations as to why SSI and its employees, rather than Visteon, should be held liable for the alleged bias. And because Visteon was not sued, it has not had an opportunity to respond to the lawsuit; Simplicean may have been removed from consideration for legitimate reasons having nothing to do with her gender.
In this case, the client was not sued, and the executive recruiting firm prevailed. But lawsuits are not always one-sided. An employee or applicant may file against the employer as well as a recruiter, employment agency, or staffing agency alleging discrimination. Here are steps to take should this occur.
1. Coordinate immediately. Investigate to determine who made the decision that is at issue in the case. Did a recruiter screen out a candidate without the employer’s knowledge? Did the employer decide on its own to release a worker who came through a staffing agency? Was the decision made by the agency and the employer together? Figure this out as early as possible, and proceed accordingly.
2. Don’t “scapegoat.” Rather than point fingers in an attempt to avoid liability, the responsible party is better off owning the decision and defending it.
3. Present a united front. Whether you determine the hiring decision to have been in the right or problematic, work together to present a united front. If you’re in the right, you have nothing to gain by being adversarial with your co-entity. Coordinate with counsel for the other entity, and get rid of that case as a team.
If, upon review, you determine the decision to have been in the wrong, it’s best to agree early in the litigation who will pay for what, without acrimony. If an indemnity agreement is in place, the resolution may be as simple as re-reading the agreement.
But maybe it’s not so easy to resolve that issue at the beginning. If not, and if you have to pay all or part of a settlement because your client messed up, then continue to cooperate with the client until the case is over. Then you can decide whether to pursue reimbursement from the client, or whether to continue your relationship. Even if you can’t get compensation from the employer (who, after all, is your client), you can decide afterward whether this is a relatively minor cost of doing business with a great client, or whether the client-employer is more trouble than it’s worth.
The worst thing that either of you can do is jeopardize your defenses and settlement leverage by playing the blame game.
Keep in mind, these tips apply in the normal situation, where both agency and employer are honest and trying to comply with the law. In the rare situation where one entity is acting with malicious intent, and the other entity isn’t aware of it until after the charge or lawsuit is filed, the innocent entity will want to separate itself as quickly and thoroughly as it can.
