Outsourcing Discrimination

The significant growth in employers’ use of labor intermediaries—that is, third parties that stand between the workers and the organizations for whom they complete work— has fundamentally changed how many low-wage workers enter and function in the workplace. Temporary staffing agencies that hire and place workers with companies and organizations have taken on a gatekeeper role to low-wage jobs in many industries. Recent litigation and various reports allege flagrant hiring discrimination by temporary staffing agencies whose clients encourage them not to hire African American workers and hire and send Latinx immigrants instead. This Article explores the discriminatory treatment of low-wage African American workers by temporary staffing agencies and considers potential theoretical explanations for what appears to be not simply the discriminatory acts of an outlier individual or employer, but a business model that accepts racially discriminatory practices as business necessity. This Article proceeds from the descriptive to the prescriptive. It deconstructs the problematic racial narratives that position African American workers at the bottom of the low-wage worker hierarchy and interrogates the normative consequences of these narratives as they manifest in temporary staffing employment. Ultimately, this Article suggests potential legal strategies that would better protect workers from discrimination in this rapidly growing low-wage employment space