Are Freelance Workers and Independent Contractors Protected From Discrimination?

Freelance workers and independent contractors form a significant part of the workforce, but their protections against discrimination can be less straightforward than those for traditional employees. Understanding the rights and protections available to freelancers and independent contractors is crucial for ensuring a fair and safe working environment.

Understanding the Legal Distinction

Freelancers and independent contractors are typically classified differently from employees. This classification affects their legal rights and protections. Employees usually receive more comprehensive protections under labor laws, while independent contractors have greater autonomy but fewer statutory protections.

Federal Protections

1. Title VII of the Civil Rights Act of 1964

• Coverage: Title VII prohibits employment discrimination based on race, color, religion, sex, and national origin. It applies to employers with 15 or more employees.

• Limitations: Title VII generally does not apply to independent contractors, as it is designed to protect employees. However, some case law and administrative interpretations have extended certain protections to contractors in specific circumstances.

2. Americans with Disabilities Act (ADA)

• Coverage: The ADA prohibits discrimination against individuals with disabilities in all areas of public life, including jobs, schools, transportation, and all public and private places open to the general public. It applies to employers with 15 or more employees.

• Limitations: Similar to Title VII, the ADA primarily protects employees, not independent contractors.

3. Age Discrimination in Employment Act (ADEA)

• Coverage: The ADEA protects employees who are 40 years of age or older from discrimination based on age. It applies to employers with 20 or more employees.

• Limitations: The ADEA does not typically cover independent contractors.

California State Protections

California provides broader protections for workers, including some coverage for independent contractors:

1. California Fair Employment and Housing Act (FEHA)

• Coverage: The FEHA prohibits discrimination and harassment in employment based on race, color, religion, sex, gender, gender identity, gender expression, sexual orientation, marital status, medical condition, military or veteran status, national origin, ancestry, disability, genetic information, and age (40 and older). It applies to employers with five or more employees.

• Protections for Contractors: The FEHA extends some protections to independent contractors, particularly concerning harassment. Contractors can file complaints of harassment with the California Department of Fair Employment and Housing (DFEH).

2. California Labor Code

• Provisions: Various provisions in the California Labor Code protect workers' rights, including those of independent contractors. For example, the California Labor Code Section 2750.3 (often referred to as AB5) establishes criteria to determine whether a worker is an employee or an independent contractor. This classification affects the applicability of many labor protections.

Specific Protections for Freelancers and Independent Contractors

1. Anti-Harassment Protections

• California Law: Under the FEHA, independent contractors are explicitly protected from harassment based on the same protected categories as employees. This includes harassment by clients or others with whom the contractor interacts during their work.

2. Wage and Hour Protections

• Misclassification Issues: Independent contractors are not entitled to the same wage and hour protections as employees, such as minimum wage, overtime, and meal breaks. However, misclassification of employees as independent contractors is a significant issue. Workers incorrectly classified as contractors can seek reclassification and claim back wages and benefits.

3. Retaliation Protections

• California Law: The California Labor Code provides retaliation protections to workers, including independent contractors, who report violations of labor laws or engage in other protected activities.

Steps to Take If You Face Discrimination as a Freelancer or Independent Contractor

If you experience discrimination or harassment, consider the following steps:

1. Document the Incidents:

   • Keep detailed records of discriminatory or harassing incidents, including dates, times, locations, descriptions of the behavior, and any witnesses.

2. Report the Behavior:

   • If possible, report the behavior to the company or client you are working for. Many companies have policies and procedures for handling discrimination and harassment complaints.

3. File a Complaint:

   • In California, you can file a complaint with the DFEH if you experience harassment or discrimination as an independent contractor. The DFEH will investigate the complaint and may attempt to resolve the issue through mediation.

4. Consult an Attorney:

   • Seek legal advice from an experienced employment law attorney. An attorney can help you understand your rights, evaluate your case, and represent you in legal proceedings if necessary.

While freelancers and independent contractors do not enjoy all the same protections as employees, they are not without recourse in cases of discrimination and harassment. Federal and California state laws provide significant protections, particularly against harassment. Understanding your rights and taking appropriate action is essential for protecting yourself in the workplace. For expert legal assistance, contact FairWork Legal Group.

If you need help with a discrimination or harassment claim or have questions about your rights as a freelancer or independent contractor, contact FairWork Legal Group. Our experienced attorneys are dedicated to protecting workers from unfair treatment and ensuring justice in the workplace.