While sexual harassment of employees in the workplace is forbidden by federal law, you may not have the same protections if you are a contractor. A loophole precludes independent contractors from being considered "employees" under discrimination laws, therefore unable to sue for employment discrimination. However, if you can show that your workplace treated you pretty much the same as it treats its own employees, you may be considered a de facto employee -- and then you might be able to sue if you are a victim of sexual harassment.
Sexual harassment occurs when your terms, conditions or privileges of employment are altered because of demands for sex by your supervisor. Sexual harassment may also occur when your workplace is permeated by unwanted sexual conduct or situations -- you know, pornographic images, constant off-color jokes and name calling. These things can add up to a hostile work environment that makes you feel compelled to quit your job.
De Facto Employee
Federal discrimination laws only permit employees, not contractors or customers, to sue an employer for sexual harassment. Recognizing the inherent unfairness that this rule may cause, the courts have created an exception to allow some independent contractors the right to sue for discrimination. So, if the employer treats the contractor as if she were an employee, then she is a de facto employee, and may sue for sexual harassment. It isn't easy -- these case must be steered through complex legal tests and requirements.
Employment Relationship Factors
The factors that weigh in favor of finding a de facto employment relationship include whether your employer provides the equipment and materials that you need to do your job. Others are whether your employer sets your work schedule, pays your salary directly, and provides you health insurance or other employee benefits. Courts pay close attention to whether the employer controls your day-to-day activities, such as supervising your hours and assignments.
Contractor Relationship Factors
If it looks as if you control your day-to-day actions, the courts may conclude that there was no employment relationship. If you have other clients, provide your own tools and set your own prices for services may lead to the conclusion that you are an independent contractor. Furthermore, if you perform highly specialized work or have your own business, you are likely a contractor, and not an employee.
- U.S. Equal Employment Opportunity Commission: Compliance Manual, Section 2 Threshold Issues
- U.S. Equal Employment Opportunity Commission: Enforcement Guidance: Application of EEO Laws to Contingent Workers Placed by Temporary Employment Agencies and Other Staffing Firms
- The Atlantic: Sexual Harassment and the Independent Contractor
Kevin Owen has been a professional writer since 2005. He served as an editor for the American Bar Association's "Administrative Law Review." Owen is an employment litigator in the Washington D.C. metropolitan area and practices before various state and federal trial and appellate courts. He earned his Juris Doctor from American University.