Contingent Workforce Solutions

December, 2009 - ICs and Discrimination

The whole independent contractor issue -- what rights they have, including whether they can sue for discrimination -- is really one of the hottest topics going in employment law right now. Several recent cases have focused specifically on this issue.

A recent decision by the United States Court of Appeals for the Second Circuit holds that an employer is not necessarily insulated from liability for the discriminatory acts of its independent contractors. The plaintiff in the case had applied for a job with a real estate company showing apartments to prospective tenants. The plaintiff alleged that he was told he was "too old" for the job by the company's independent contractor who interviewed him for the position. The courts determined that the company was liable for the independent contractor's actions given that the contractor was authorized to make decisions on the company's behalf.

In a separate case regarding the ability of independent contractors to sue for discrimination adds to the split between the federal appellate courts on the issue. The split may ultimately persuade the U.S. Supreme Court to decide the issue. A federal appeals court decision granting an independent contractor the right to sue an employer for discrimination could mean the U.S. Supreme Court will eventually decide to take up the issue.

In a third case the Third Circuit recently held that an independent contractor may bring a race discrimination claim against the entity with which the worker contracted. Courts typically have dismissed discrimination claims under Title VII if those claims were made by an independent contractor, rather than by an "employee" of the company.  However, 42 U.S.C. §1981 ("Section 1981"), which prohibits racial discrimination in the formation of contracts, states that "all persons" shall have the same right "to make and enforce contracts as is enjoyed by white citizens." In this most recent case, the court held that an independent contractor may sue for race discrimination under Section 1981. While the Third Circuit's decision does not mean that the plaintiff has proven their case of discrimination, it means there are disputed issues of fact, and that those issues should be decided by a jury.

The primary take-away from this case and the other cases sighted is that an independent contractor can bring a discrimination claim against a company that allegedly discriminates, even without an actual employee/employer relationship.

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