Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e, is a comprehensive federal anti-discrimination statute that, inter alia, prohibits discrimination “because of” one’s race, color, religion, sex, and national origin, as well as retaliation for engaging in certain “protected activity.” But who does the statute protect, specifically?[1]Other laws specifically extend their protections to persons who are not, technically, “employees” of the employer in question. See, e.g., NY Executive Law 296-c (“Unlawful discriminatory practices relating to interns”); NY Executive Law 296-d (“Sexual harassment relating to non-employees”); N.Y.C. Admin. Code 8-107(23) (applying the NYC Human Rights Law’s provisions to interns).
As one court recently explained (citations & quotation marks omitted and formatting altered):
Title VII’s protections … appl[y] only to ‘employees,’ but the statute defines an employee circularly as ‘an individual employed by an employer. … Once a plaintiff is found to be an independent contractor and not an employee …, the Title VII claim must fail. To determine whether a plaintiff is an employee for the purpose of Title VII, courts apply the federal common law of agency using the following nonexhaustive list of factors articulated by the Supreme Court in Community for Creative Non-Violence v. Reid, 490 U.S. 730 (1989):
[1] the hiring party’s right to control the manner and means by which the product is accomplished … [;][2] the skill required; [3] the source of the instrumentalities and tools; [4] the location of the work; [5] the duration of the relationship between the parties; [6] whether the hiring party has the right to assign additional projects to the hired party; [7] the extent of the hired party’s discretion over when and how long to work; [8] the method of payment; [9] the hired party’s role in hiring and paying assistants; [10] whether the work is part of the regular business of the hiring party; [11] whether the hiring party is in business; [12] the provision of employee benefits; and [13] the tax treatment of the hired party.
McKinney v. Tanner, 2019 WL 3067116 (S.D.N.Y. 2019).
Another court has distilled the test to require an employer to (1) compensate and (2) control an employee’s work. Glaser v. Upright Citizens Brigade, LLC, 377 F.Supp. 3d 387 (S.D.N.Y. March 28, 2019).
Whether a plaintiff will satisfy this test, of course, depends on all of the facts and circumstances.
| ↩1 | Other laws specifically extend their protections to persons who are not, technically, “employees” of the employer in question. See, e.g., NY Executive Law 296-c (“Unlawful discriminatory practices relating to interns”); NY Executive Law 296-d (“Sexual harassment relating to non-employees”); N.Y.C. Admin. Code 8-107(23) (applying the NYC Human Rights Law’s provisions to interns). |
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