Have you ever been told “it’s not our policy, it’s the vendor” when something goes wrong? In employment law, that excuse doesn’t fly – and the U.S. Equal Employment Opportunity Commission (EEOC) just reminded employers of this crucial principle in a lawsuit filed against Delta Air Lines.
As discussed below, the allegations outlined in the Complaint highlight a troubling reality: when employers outsource parts of their hiring process to third-party contractors, they sometimes treat those contractors’ discriminatory decisions as if they’re out of their hands. But as this case makes crystal clear, an employer’s obligation to prevent discrimination doesn’t end when they hire a contractor to do their dirty work.
What Happened: A Qualified Applicant Gets Shut Out
The EEOC alleges that in July 2022, Delta Air Lines extended a conditional job offer to an applicant for a ticket agent customer service representative position at one of its New York City airport locations. The offer came with conditions, including the requirement that the applicant pass a physical ability test.
The applicant, who was in the early stages of pregnancy, did everything right. She went to her doctor and obtained a medical release form confirming her ability to take the required physical test.1 With proper medical documentation in hand, she showed up ready to complete the testing requirement and move forward with her new job.
But then came the roadblock: the third-party Delta hired to administer the test refused to allow her to take it because she was pregnant.
Let’s pause here. This applicant had:
- Received a conditional job offer
- Obtained medical clearance from her physician
- Presented the required documentation
- Showed up ready to complete the test
And yet she was turned away based on nothing more than her pregnancy status.
The Employer’s Critical Mistake: Walking Away Instead of Fixing the Problem
Here’s where Delta’s legal troubles truly began. After the applicant informed Delta about what had happened – that she had presented the required medical release but was still denied the opportunity to take the test because of her pregnancy – Delta failed to take any corrective action.
Consider what options an employer has when issues like this arise:
- Contact the third-party contractor to address the discrimination
- Arrange for the applicant to take the test with a different administrator
- Find an alternative means of assessing the applicant’s physical abilities
- Investigate the contractor’s policies to prevent future discrimination
Instead, Delta chose the easiest path: they simply rescinded the job offer. In doing so, according to the EEOC’s legal theory, Delta transformed the third party’s discriminatory act into their own discriminatory employment decision. The applicant lost not just the opportunity to take a test, but the entire job opportunity.
The Legal Principle: You Can’t Outsource Your Responsibility
Employers cannot avoid their responsibilities under the discrimination laws by shifting the blame to third parties they hire. When an employer hires contractors, vendors, or agents to handle aspects of the employment process, the employer often remains responsible for ensuring those processes comply with the state and federal anti-discrimination laws. This includes in areas of such as pre-employment testing, background checks, drug screening, medical examinations, payroll, and skills assessments.
What the Law Requires: Pregnancy Discrimination is Sex Discrimination
The case involves violations of Title VII of the Civil Rights Act of 1964, as amended by the Pregnancy Discrimination Act (PDA). The PDA makes clear that discrimination based on pregnancy, childbirth, or related medical conditions is unlawful.
When a pregnant applicant provides medical clearance demonstrating her ability to perform job-related functions, employers cannot permit third parties to override that medical determination based on pregnancy alone. Doing so violates federal and state employment laws.
The Real-World Impact: When Employers Fail to Act
Consider the devastating impact of Delta’s inaction on this applicant. She went through the entire application and interview process. She received a conditional job offer – that exciting moment when you think you’ve secured a new, promising job. She took the responsible step of getting medical clearance. She showed up ready to meet Delta’s requirements.
And then, through no fault of her own, it all fell apart. Not because she couldn’t do the job, not because she failed any legitimate requirement, but because of unlawful discrimination that Delta failed to prevent or remedy.
What Job Seekers Should Know
If you’re a pregnant applicant facing similar discrimination, understand that:
- Medical clearance matters. If your doctor says you can perform the job functions or take required tests, that documentation should be respected.
- Contractor discrimination is employer discrimination. Don’t be fooled if an employer tries to blame a third party. The law holds them responsible.
- You have the right to file a complaint. If you experience this kind of treatment, you can file a charge with the appropriate government agency, whether the EEOC, New York State Division of Human Rights, or the New York City Commission on Human Rights.
- Document everything. Keep copies of your medical clearance, correspondence with the employer and contractor, and any statements made about the reasons you were denied the opportunity.
The Bottom Line
The EEOC’s lawsuit against Delta Air Lines sends an unambiguous message: when third parties discriminate on your behalf, it’s still your discrimination. Employers cannot treat contractor-administered processes as somehow separate from their legal obligations.
The case is pending in the U.S. District Court for the Eastern District of New York (EEOC v. Delta Air Lines, Inc., Case No. 25-cv-5448). The EEOC is seeking back pay, compensatory damages, punitive damages, and injunctive relief to prevent future discriminatory practices.
