Discrimination Laws: Contractors' Rights And Legal Protection

The rise of the gig economy has brought to light the legal grey areas surrounding independent contractors, particularly when it comes to discrimination laws. While employees are protected by federal and state anti-discrimination laws, independent contractors are often left without legal recourse in the face of degrading, humiliating, and potentially illegal misconduct. This is because most anti-discrimination laws, such as the Americans with Disabilities Act, the Family Medical Leave Act, and the Civil Rights Act, only apply to employees, not independent contractors. However, this is changing at the state level, with states like New York, Maryland, and California extending anti-discrimination protections to independent contractors.

Sexual harassment

While federal anti-discrimination and anti-harassment laws do not apply to independent contractors, several states have implemented their own laws to protect contractors from sexual harassment.

• New York
• Maryland
• Minnesota
• Rhode Island
• California
• Illinois
• New Jersey
• Washington
• Michigan
• Pennsylvania
• Louisiana

In New York and Maryland, independent contractors are protected under the same anti-discrimination laws as employees. In Minnesota and Rhode Island, there are separate statutes that prohibit discrimination in contracting.

California's Fair Employment and Housing Act (FEHA) makes it unlawful to engage in discriminatory harassment against "a person providing services pursuant to a contract." California's Unruh Civil Rights Act also specifically prohibits sexual harassment in the context of a professional relationship.

In Illinois, the state's Human Rights Act makes it illegal for any employer "to engage in harassment of nonemployees, including contractors, in the workplace."

New Jersey's Law Against Discrimination prohibits any person from discriminating against another person in doing business or making contracts. However, this has been interpreted to mean that independent contractors are protected against discriminatory refusals to do business but not from discrimination during the execution of a contract.

In Washington, the state's Supreme Court has ruled that its anti-discrimination law covers contractors, protecting them from discrimination based on sex, race, creed, national origin, or disability.

Michigan's courts have ruled that nonemployees can bring actions under the state's anti-discrimination law if the hiring entity controls a term, condition, or privilege of their employment or potential employment.

Pennsylvania's anti-discrimination law explicitly prohibits discrimination against independent contractors, but the law defines independent contractors narrowly, including only those workers subject to state licensing laws or included in the Fair Housing Act.

Louisiana's state employment discrimination law includes insurers' agents, regardless of their employment status.

While federal laws do not apply, businesses can still be liable for sexual harassment by independent contractors if they fail to respond appropriately to a complaint. According to the Equal Employment Opportunity Commission (EEOC), businesses can be liable for harassment by non-employees if they know about the harassment and do not take reasonable steps to prevent it.

Limitations and Outlook

It is important to note that the protections provided by these state laws vary, and some states only protect against certain types of conduct or cover a subset of independent contractors. Additionally, some states, like New Jersey, may offer narrower protection to contractors than to employees.

The laws regarding independent contractors are evolving as the nature of work changes, and the number of people working outside the traditional employer-employee framework is expected to grow. While the current federal laws do not provide protection for independent contractors, this may change in the future as legislators recognize the need to address this gap.

Hostile work environment

The rise of the gig economy has brought to light the gaps in anti-discrimination laws, which often do not cover independent contractors. While federal anti-discrimination laws do not apply to independent contractors, some states have extended protections to this group of workers.

Independent contractors may find themselves in a hostile work environment due to the actions of an employer, other independent contractors, or customers. In such cases, they may not be able to bring typical employment law claims. This is because independent contractors are generally afforded more freedom and choice than employees, who are often stuck in a hostile work environment as they have only one employer.

However, when an independent contractor works for only one employer, in their workplace, and during typical working hours, it can be argued that they are effectively an employee. In these situations, it is more difficult for the contractor to leave if the work environment is hostile.

To address this issue, some states have expanded the definition of "employee" in their anti-discrimination laws to include independent contractors. For example, in Maryland, the definition of "employee" under the anti-discrimination law explicitly includes those acting as independent contractors. New York has taken a similar approach, prohibiting unlawful discrimination against "non-employees," which includes independent contractors.

Other states, like Minnesota and Rhode Island, have separate statutes that prohibit discrimination in contracting. For instance, Minnesota law prohibits refusing to contract with someone based on their race, sex, or other protected categories, except for legitimate business reasons.

In California, independent contractors may be protected under the Unruh Civil Rights Act, which guarantees equal accommodations, advantages, facilities, privileges, and services in all business establishments, regardless of characteristics such as sex, race, or religion. While this does not apply to employment relationships, it has been used to obtain protection for independent contractors experiencing discrimination in business relationships.

Additionally, Section 1981 of the Civil Rights Act of 1866 specifically prohibits discrimination based on race, color, or ethnicity when making or enforcing contracts. Courts have interpreted this section to apply to both employees and independent contractors, providing a legal avenue for contractors facing discrimination based on these characteristics.

It is important to note that anti-discrimination laws are constantly evolving to catch up with the changing nature of work. As such, independent contractors who believe they are being discriminated against should seek professional legal advice to understand their rights and options.

Retaliation

While federal anti-discrimination laws do not apply to independent contractors, there are some protections in place at the state level. However, these protections vary across states, and in many cases, independent contractors are left without legal recourse in the face of retaliation.

In terms of retaliation, independent contractors may face challenges in seeking legal recourse. Retaliation occurs when an employer takes adverse action against an individual because they have engaged in a protected activity, such as reporting discrimination or harassment. For employees, federal laws such as Title VII of the Civil Rights Act of 1964 and the Americans with Disabilities Act of 1990 (ADA) offer protection against retaliation. However, these laws do not extend to independent contractors.

Some states have taken steps to protect independent contractors from retaliation. For example, California's Fair Employment and Housing Act (FEHA) prohibits retaliation against "a person providing services pursuant to a contract." This means that if an independent contractor reports harassment or discrimination and subsequently faces adverse consequences, they may have legal recourse under California law. Other states, such as New York and Maryland, have also extended their anti-discrimination laws to cover independent contractors, which could include protection from retaliation.

However, it is important to note that the protections offered to independent contractors vary significantly across states. In some states, independent contractors may only be protected from certain forms of retaliation or discrimination, or the protections may only apply to specific types of contractors. In other states, independent contractors may have no legal recourse at all.

The lack of consistent protection for independent contractors at the federal level has left a gap that employers can exploit by misclassifying employees as independent contractors to avoid legal responsibility for discrimination and retaliation. This issue highlights the need for legislative changes to ensure that all workers, regardless of their employment status, have adequate protection against retaliation and discrimination.

Wrongful discharge

In the context of independent contractors, wrongful discharge refers to the termination of a contract rather than the termination of employment. Independent contractors are not considered employees under the law and therefore do not have the same protections against wrongful termination as employees. However, this does not mean that they cannot take legal action if they feel they have been wrongfully discharged.

Independent contractors can sue for breach of contract if they believe the termination of their contract was not carried out in accordance with the terms agreed upon in the contract. For example, if they were not given sufficient notice as outlined in the contract, they may have grounds for legal action. It is important to note that the ability to sue for breach of contract is dependent on the existence of a contract, whether written or verbal.

In addition, independent contractors who have been misclassified and should, in fact, be considered employees may be able to sue for wrongful termination. This is because employees have certain rights that independent contractors do not, such as protection against discrimination and the right to be dismissed only for valid reasons. If an independent contractor can establish that they are actually an employee, they may be able to assert these rights and take legal action for wrongful discharge.

To determine if they have been misclassified, individuals should seek the advice of an experienced employment lawyer. This is particularly important as anti-discrimination laws at the federal level in the US, such as Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act of 1990 (ADA), and the Age Discrimination in Employment Act of 1967 (ADEA), do not apply to independent contractors. However, it is worth noting that some states have expanded their anti-discrimination laws to include independent contractors, providing them with protections against wrongful discharge on the basis of protected characteristics.

Workplace discrimination

Independent contractors often face similar degrading, humiliating, and potentially illegal misconduct as employees. For example, a rideshare driver may experience repeated racial slurs from customers, or a performer may be sexually harassed by a casting director. In such cases, it is essential to understand the legal protections available to independent contractors, which differ from those afforded to traditional employees.

Under federal law in the United States, anti-discrimination and anti-harassment laws, such as Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act of 1990 (ADA), and the Age Discrimination in Employment Act of 1967 (ADEA), do not apply to independent contractors. This means that independent contractors cannot bring typical employment law claims and are left with limited options for legal recourse.

However, it is important to note that state laws may offer some protection to independent contractors. For instance, California's Unruh Civil Rights Act prohibits discrimination and harassment in business services and specifically addresses sexual harassment in professional relationships. Similarly, Section 12940(j) of California's Fair Employment and Housing Act (FEHA) prohibits discriminatory harassment against those providing services under a contract. These state-level protections are crucial in addressing the gap in federal legislation.

Additionally, it is worth considering that employers can be held liable for discrimination by an independent contractor acting on their behalf. This was illustrated in the case of Halpert v. Manhattan Apartments, where the court held that employer liability under the ADEA is "direct" and applies regardless of whether the employer uses its employees or independent contractors for tasks like interviewing applicants.

The distinction between an employee and an independent contractor is not always clear-cut, and misclassification can have significant legal implications. If an individual is wrongfully classified as an independent contractor, they may be able to establish that they are, in fact, an employee, thereby gaining access to the protections and legal recourse available to employees.

Frequently asked questions