Workplace relationships and interactions come in many forms. So do acts of workplace discrimination and harassment. Often, prohibited or wrongful conduct occurs outside of the traditional employer-employee relationship or between colleagues. In the “gig economy,” independent contractors can and do face the same degrading, humiliating, and potentially illegal misconduct as employees. Similarly, individuals can be victimized by others during their careers, such as a performer sexually harassed by a casting director or a rideshare driver subject to repeated racial slurs by customers.
In such circumstances, it may be unclear what recourse, if any, victims have to hold perpetrators accountable and seek redress for the harm they caused. Unfortunately, many anti-discrimination and anti-harassment laws have not yet evolved with the economy to cover independent contractors and gig workers. But that is changing at the state level, with legislators recognizing that workplace harassment and discrimination are equally harmful to those who file 1099s as those who file W-2s.
Additionally, the U.S. Department of Labor (DOL) and individual states are cracking down on the common practice of misclassifying employees as independent contractors to avoid the many legal and financial obligations that only apply to employees, including federal employment laws.
Federal Anti-Discrimination and Anti-Harassment Laws Do Not Apply to Independent Contractors
Several federal laws prohibit workplace discrimination and harassment against protected classes of individuals, including 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). However, these federal laws only apply to employees, not independent contractors. Sporadic legislative efforts have sought to remedy this unfair legal dichotomy but have gone nowhere.
States Lead the Way in Protecting Gig Workers Against Harassment and Discrimination
State and local anti-discrimination and anti-harassment laws largely cover the same ground as their federal equivalents, but many states provide workers with broader and stronger protections against such conduct. This includes expanding the coverage of these laws to include independent contractors. There is little uniformity among the states that have adopted such laws, with some only protecting against certain types of conduct or only covering a subset of independent contractors
For example, Section 12940(j) of 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.” Employers of independent contractors may also be held responsible for acts of harassment by nonemployees, such as customers or other independent contractors, if the employer knows or should have known of the conduct and fails to take immediate and appropriate corrective action. In addition, California’s Unruh Civil Rights Act prohibits discrimination and harassment in business services, including under Section 51.9 of the act, which specifically prohibits sexual harassment in the context of a professional relationship.
Similarly, in Illinois, Section 2-102 of the state’s Human Rights Act makes it illegal for any employer “to engage in harassment of nonemployees in the workplace.” The law specifically defines “nonemployees” as including “contractors and consultants.”
Many other states also provide some discrimination and harassment protections for contractors, including New York, Maryland, New Jersey, Pennsylvania, Minnesota, and Washington.
Just Because a Company Calls You an Independent Contractor Doesn’t Mean You Are One
Businesses often classify workers as independent contractors rather than employees to keep costs down and reduce time spent dealing with personnel and payroll matters such as overtime pay, unemployment insurance, sick leave, and other obligations that only apply to employees – including federal anti-discrimination and anti-harassment laws. However, a worker’s classification status as an independent contractor or employee is not up to the employer. Rather, it is a function of the law and the rules promulgated by the DOL and individual state labor laws addressing the subject. In fact, under a proposed rule the DOL recently published, more workers are likely to be considered employees instead of independent contractors, no matter what label a business applies to them.
For these reasons, those who experience harassment or discrimination as independent contractors should never assume their alleged contractor status precludes them from the rights and remedies contained in federal or state law. If an individual wrongfully classified as an independent contractor can establish that they are, in fact, an employee, they are covered by the same protections and can assert the same claims as any other employee. The best way to determine if you have been misclassified and whether you have a viable claim under state or federal law is to meet with an experienced employment lawyer.
