The Gig economy is flourishing in California, with millions of independent contractors and approximately 23.9 million across the US reported in 2021, a staggering 85.3% increase since 2017. The advantages of being an independent contractor can be incredibly enticing; becoming your own boss, the ability to design a healthier work-life balance specific to your own needs and wants, and the potential to earn significantly more money. However, there are some drawbacks to working as an independent contractor. Aside from bearing the responsibility of supplying your benefits, managing taxes for your business dealings, and providing for your own medical insurance, independent contractors may face discrimination at work. Still, they do not have an HR department or other channels to report an incident conveniently or urgently. Individuals are left feeling unsure what to do or how and if any laws in California apply to them. Several factors affect how and when an independent contractor can pursue a claim about discrimination.
What is an Independent Contractor?
California law describes an independent contractor as someone who performs a particular service for a specific fee. The individual or business that selects and pays the independent contractor may have control over the desired result of the service but not the method by which the independent contractor fulfills the result. The paying party has no authority to dictate the particulars of how the outcome is achieved.
Note: If you believe you are an employee, but your employer is mislabeling you as an independent contractor for their own benefit or advantage, or you wish to establish whether you are an independent contractor, a practical resource is the California ABC Test. In addition, it may be beneficial to examine Assembly Bill (AB) 5, which describes the nuances between employees and independent contractors. If you discern you have been misclassified, you may file a claim with the Labor Commissioner’s Office. Obtaining legal advice prior to filing is wise.
Independent Contractors Facing Discrimination and Harassment
Unfortunately, legislation has not yet caught up to support and protect independent contractors from discrimination in the same manner in which employees in California and nationwide are currently shielded. The resources available to California’s independent contractors are not always clear on how to proceed with discrimination claims. For instance, the California Department of Fair Employment and Housing (DFEH) website appears as a helpful resource for victims of discrimination and harassment, including “independent contractors” in its language. The regulations under DFEH authority describe protections for independent contractors who face discrimination for:
- Age (individuals 40 and older)
- Breastfeeding and associated medical conditions
- Color
- Disabilities (whether they be mental/psychological or physical)
- Genealogy/Ancestry data
- Gender (expression and identity)
- Genetic Data
- Medical Condition (e.g., HIV/AIDS status)
- Military Status and Veterans
- Nationality
- Pregnancy
- Race
- Relationship Status (marital or otherwise)
- Religious beliefs and practices
- Sex and sexual orientation
In addition, a ban exists under California’s DFEH Act against all forms of harassment rooted in any of the above-described characteristics, including sexual harassment, gender harassment, breastfeeding, pregnancy, or medical conditions. However, upon further examination, the DFEH indicates employers should take “reasonable steps” to discourage or prevent discrimination against the above characteristics.
It seems California has imparted guidelines and advisement on preventing discrimination and how it may manifest. Still, definitive laws safeguarding independent contractors in discrimination cases are lacking.
Despite the above list, independent contractors often find applying regulations and statutes to protect themselves challenging in practice. California’s anti-discrimination laws generally exclude independent contractors.
While age-based harassment is prohibited in California, the law primarily supports employees rather than independent contractors who face harassment. While some statutes cover specific forms of harassment, other laws protect only certain forms of discrimination, making determining whether you can file a claim for discrimination or harassment confusing and seem like more of a hassle than help (for any worker). Independent contractors may be eligible to sue for sexual harassment on the job but not for matters of wrongful termination on the basis of race or gender. At the federal level, employees are protected from discrimination and harassment, but independent contractors are also not treated equally (at this time).
What to do if you are an independent contractor and victim of discrimination or harassment at work?
While California has primarily led the way for numerous labor laws, worker’s rights, and anti-discrimination and harassment legislation, there are still complicated gray areas, particularly regarding independent contractors and the exponentially growing gig economy. As an independent contractor, encountering discrimination based on age, race, nationality, gender, sexual orientation, or any of the outlined characteristics can be frustrating, unfair, and troubling.
If you are facing discrimination or have been the victim of sexual or other forms of harassment, it is crucial to consult with an experienced California Bay Area discrimination and harassment attorney. While laws in California specific to independent contractors are evolving to meet workers’ needs and protect them better, the implementation process can grow daunting and complex. A seasoned attorney well versed in long-standing California legal precedents, recent amendments, and expansions to anti-discrimination and harassment laws can accurately address your unique case and circumstances, determining the most effective course of legal action. We invite you to schedule a free consultation with a compassionate attorney who can answer your questions and bring clarity to the details surrounding your case.
Seek the Legal Support of a Qualified Attorney
Anytime workplace discrimination occurs, the consequences can be detrimental for the affected worker. If you are facing age discrimination in your place of work, consider contacting a knowledgeable attorney who can represent your rights. The attorneys at SANFORD A. KASSEL, A Professional Law Corporation have vigorously represented the rights of workers who have been discriminated against because of their status. The firm has more than three decades of service in the field of employment law. Contact the firm today for a free case evaluation.
