The federal government and most states have laws prohibiting discrimination in the workplace. Most of these laws apply only to employees, not ICs.
1. Federal Anti-Discrimination Laws
The main federal law barring workplace discrimination is Title VII of the federal Civil Rights Act of 1964. Title VII applies to businesses that have 15 or more full-time or part-time employees. It outlaws discrimination in employment based on race, color, religion, gender or national origin. Sexual harassment in the workplace is also prohibited as a variety of illegal gender discrimination.
Other federal laws barring workplace discrimination include:
- the Age Discrimination in Employment Act, which prohibits discrimination in employment on account of age against people who are 40 or more years old and applies to employers with 20 or more employees
- the Pregnancy Discrimination Act, which bars employers from discriminating against employees on account of pregnancy, birth or related conditions and applies to employers with 15 or more employees
- the Immigration Reform and Control Act, which makes it illegal to discriminate against people who aren’t U.S. citizens but who have been legally admitted to the United States and applies to all employers
- the Equal Pay Act, which requires employers to provide equal pay and benefits to men and women who do the same job or jobs requiring equal skill, effort and responsibility, and
- the Americans with Disabilities Act, which protects disabled people from employment discrimination and applies to employers with 15 or more employees.
Resources
You can find a lot of free information about these employment laws on Nolo’s website at www.nolo.com. Click on the Plain-English Law Centers Tab at the top of the home page. Then click on the Employment Law tab on the left side of the page. Under Employers’ Rights and Responsibilities, find the heading for Preventing Discrimination in the Workplace. There, you will find an article called Federal Anti-Discrimination Laws. For more information about labor and anti-discrimination laws as they apply to employees, refer to the book Everyday Employment Law: The Basics. If you want detailed information about these laws, including the text of the laws and government resources, refer to Federal Employment Laws: A Desk Reference. Both books are by attorneys Amy DelPo and Lisa Guerin, and both are published by Nolo.
With one very narrow exception (see “Beware of Local Twists,” below), none of these anti-discrimination laws applies to ICs. An IC has no legal right to bring a lawsuit against you claiming that you have discriminated in violation of these statutes. And the federal agencies charged with enforcing these laws, such as the Equal Employment Opportunity Commission, have no power to handle claims where ICs are concerned.
But this does not mean that you are off the hook as far as ICs are concerned. There are other federal and state laws that prohibit various forms of discrimination, and these laws may apply to your relationship with the IC. For example, in one recent case, a court held that an IC can sue a hiring company for damages for discrimination under a federal law that bars racial discrimination in private contracts—42 U.S.C. § 1981. In this case, an IC named Benjamin Guiliani, who was a Mexican-American man, operated a company called Danco that maintained parking lots. Danco signed a contract with a Wal-Mart store agreeing to maintain the store’s parking lot. After Guiliani began working at the Wal-Mart location, he experienced hostility based on his race. Among other incidents, someone painted the words “white supremacy” on the pavement near where Guiliani unloaded his equipment, and store supervisors made derogatory comments about Latinos in front of him. Guiliani complained about the treatment, and Wal-Mart canceled the contract. Guiliani sued and won a $300,000 judgment. This case established the law in Maine, Massachusetts, New Hampshire, Rhode Island and Puerto Rico. (Danco, Inc. v. Wal-Mart Stores, Inc., 178 F.3d 8 (1st Cir. 1999).) Another court has indicated this rule should also be followed in Alabama, Florida and Georgia. (Zaklama v. Mt. Sinai Medical Center, 842 F.2d 291 (11th Cir. 1988). However, courts in some other parts of the country have not extended this federal statute to ICs. For example, a Colorado court held that workers who couldn’t bring discrimination claims under Title VII because they were ICs couldn’t bring identical claims under Section 1981. (Lufti v. Brighton Cmty. Hosp. Ass’n, 85 FEP 1157 (Colo. Ct. App. 2001).)
Workers you’ve classified as ICs might also be able to sue you for workplace discrimination by claiming that they should have been classified as employees. If such a worker could convince a court he or she was improperly classified, the antidiscrimination laws would then apply. A court or federal agency would likely bend over backwards to find an employment relationship if you have engaged in blatant discrimination.
In addition, an IC might be able to sue you under state anti-discrimination laws and you might be subject to administrative action by a state anti-discrimination agency. Some of these state laws may apply to ICs. (See Section C2.)
Beware of Local Twists
Federal courts in some parts of the country— the western United States, for example—have found that in certain situations Title VII can apply to an IC. This is where discrimination against an IC results in damage to the IC’s job opportunities.
For example, a doctor was permitted to bring a Title VII action alleging discrimination on the basis of national origin. The doctor, clearly an IC, had submitted a bid to run a hospital’s emergency room. The doctor claimed that the bid was rejected because he was Hispanic and that the rejection had adversely affected his job opportunities. (Gomez v. Alexian Bros. Hosp., 698 F.2d 1019 (9th Cir. 1983).)
Until recently, courts almost always used the economic reality test to determine whether a worker was an employee or IC for purposes of federal anti-discrimination statutes. However, many courts are now switching to the common law right of control test. (See The Common Law Test for a discussion of this test.)
2. State Anti-Discrimination Laws
All states except Alabama, Arkansas, Georgia and Mississippi have their own civil rights laws that prohibit discrimination in private employment based on race, color, gender or national origin. Most states also prohibit discrimination based on religion or disability. In addition, many states and localities prohibit forms of discrimination that aren’t covered by federal law—for example, discrimination based on marital status.
These laws may be enforced by a special state administrative agency, the state labor department or state attorney general. Covered workers can also bring lawsuits alleging job discrimination against employers in state court.
Most of these state laws apply only to employees, not ICs. Different state courts use both the economic reality and common law tests to determine worker status under these laws. Regardless of what test is used, state agencies and courts often take a very broad view of who qualifies as an employee under these anti-discrimination laws. It’s possible, therefore, that a worker might be viewed as an IC under federal anti-discrimination laws but as an employee under a similar state law.
Beware that the civil rights laws of a few states—Louisiana, North Dakota and Vermont, for example—might include ICs as well as employees.
For more information, contact your state labor department.