Employment Discrimination? S/he’s Not My Employee…

Can you be liable for employment discrimination against someone who’s not your employee? Sometimes. Title VII and the other aforementioned laws prohibit employers from discriminating. These laws loosely define employers as entities with a minimum number of employees, usually 15 or more (20 or more under the ADEA). If you meet that threshold, you are an employer and subject to those laws. But what about the employee? Who is actually protected under these laws? That’s our topic for this week.

Last week, the 7th Circuit affirmed the dismissal of a discrimination case by a doctor against a hospital. The doctor had staff privileges and felt that the administration discriminated against her on the basis of her sex, religion and national origin, by undermining her in front of her patients. Some doctors would not work with her. Ultimately the hospital terminated her privileges, and she filed a discrimination claim under Title VII. The court found that she was not only not the hospital’s employee, but she was an independent contractor, and therefore couldn’t sue under Title VII. She had her own medical practice. The restrictions placed upon her, according to the court were not enough to make her an employee, and therefore she was not protected under Title VII. So the bottom line in this case is that an independent contractor is not protected under Title VII (and probably is not protected under the ADEA or the ADA or other federal anti-discrimination laws either). You can find the court’s ruling here.

There are times, however, when an employer can be liable for discrimination against someone who is not actually their employee. For example, let’s say you hire an independent contractor and the contractor sends one or more of its employees to work on your premises. Let’s assume you don’t exercise enough control over those workers to be a joint employer. They’re not your employees, but they are someone’s employees. If you discriminate against or harass that employee, or you allow one of your employees to do so, you can still be liable.

Title VII, the ADEA and the ADA don’t only protect employees. They protect “individuals” from discrimination. Case law interprets that prohibition to protect against interference with any employment opportunities. Harassment of a contractor’s employee qualifies as interference with his or her employment opportunities. Similarly, refusing to work with a contractor’s employee or adverse treatment of that employee based on traits protected under anti-discrimination laws also qualifies. While many of the cases involve staffing agencies they can apply to other types of contractors with employees. The EEOC published a rather helpful Enforcement Guidance on this issue (with particularly helpful footnotes) which you can find here.

OK, let’s tie this all together with some takeaways.

1. An independent contractor is not protected under the federal employment discrimination laws.
2. Employees are protected under federal employment discrimination laws when they work for someone who employs the minimum number of employees (in most cases 15).
3. If you have the minimum number of employees, you can be liable for discrimination against an employee even if s/he isn’t your employee, if the alleged discrimination/harassment interferes with that person’s employment opportunities.
4. If you have anyone working on your premises or doing work for your company, follow the same guidelines you should be following with respect to your direct employees. That should at least reduce your risk of liability on all counts.

OK, let’s end here until next week!

Contents of this post are for educational/informational purposes only, are not legal advice, and do not create an attorney-client relationship. Consult with competent employment counsel in the state(s) in which you employ people with your specific questions.

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