Legal Protection Against Pregnancy Discrimination, Other Unlawful Employment Practices May Depend on Whether One Is an “Employee”

By Shay Tressa DeSimone [CC BY 2.0 (http://creativecommons.org/licenses/by/2.0)], via Wikimedia CommonsAnti-discrimination statutes protect employees from a range of unfair employment practices. Under federal law, and in many state and local jurisdictions, pregnancy discrimination is considered either a form of unlawful sex discrimination or its own form of employment discrimination. Before an individual can prevail on a claim, however, they must establish that they are an “employee” or a candidate for employment within the meaning of the law. Understanding the difference between an employee and an “independent contractor” (IC) is critical to understanding how these laws apply, but no easy explanation of this difference exists. Even the U.S. Supreme Court has only been able to offer a list of guidelines. As more and more employers try to classify workers as ICs instead of employees, the question is more important than ever.

This issue gained attention in the media recently through the story of a woman who worked for a government agency in Washington, D.C. The woman, who was eight months pregnant, worked at least 40 hours a week in a government office and had a D.C. email address, along with other features commonly associated with employment. As far as D.C. was concerned, however, she was an IC and therefore not eligible for paid family leave or other benefits of employment. Shortly after she raised concerns about this arrangement, she was reportedly fired. The District claims that her contract was terminated because of a funding error, but others in local government are now calling for a review of how the District classifies its workers.

An increasing number of lawsuits around the country are resulting in rulings that workers classified as ICs are actually employees. The general rule recognized by the U.S. Supreme Court involves the common law of agency. A worker is more likely to be an IC if the job requires a high level of skill, the worker provides their own “instrumentalities and tools,” the worker performs their duties away from the employer’s usual place of business, and other factors are present. See Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 323-34 (1992), quoting Comm. for Creative Non-Violence v. Reid, 490 U.S. 730, 751-52 (1989). See also Frankel v. Bally, 987 F.2d 86, 90 (2d Cir. 1993). The “extent to which the hiring party controls the manner and means by which the worker completes her assigned tasks” is often deemed especially important. Eisenberg v. Advance Relocation & Storage, 237 F.3d 111, 112 (2d Cir. 2000).

The Equal Employment Opportunity Commission (EEOC) has held that Title VII of the Civil Rights Act of 1964, which includes protections against pregnancy discrimination under the Pregnancy Discrimination Act of 1978, does not apply to ICs. The Second Circuit Court of Appeals has made similar findings. See O’Connor v. Davis, 126 F.3d 112 (2d Cir. 1997) (a college student doing an unpaid internship at a psychiatric hospital was not “employed” by the hospital). The court has also, however, ruled in favor of workers nominally classified as ICs. See Hyland v. New Haven Radiology Assocs., 794 F.2d 793 (2d Cir. 1986); Salamon v. Our Lady of Victory Hosp., 514 F.3d 217 (2d Cir. 2008).

The pregnancy discrimination attorneys at Phillips & Associates advocate for the rights of employees and job applicants in the greater New York City area. To schedule a free and confidential consultation with a knowledgeable and skilled advocate for employee rights, contact us today online or at (212) 248-7431.

More Blog Posts:

Retail Worker Files Pregnancy Discrimination Class Action Lawsuit, Claiming Employer Forced Her to Take Unpaid Maternity Leave, New York Employment Attorney Blog, May 8, 2014

Appellate Court Holds that Inefficient Accommodations, Impolite Supervisors Do Not Necessarily Support a Pregnancy Discrimination Claim, New York Employment Attorney Blog, March 19, 2014

Government Contractor Settles EEOC’s Pregnancy Discrimination Complaint for $70,000, New York Employment Attorney Blog, January 15, 2014

Photo credit: By Shay Tressa DeSimone [CC BY 2.0], via Wikimedia Commons.

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