Can I Sue for Discrimination If I Am a Freelancer or Independent Contractor?

Freelancers and independent contractors do not have the same workplace discrimination protections as employees. Federal anti-discrimination laws apply to employees but not to independent contractors.

Given this difference, some employers misclassify employees as independent contractors to avoid labor law protections. Employees who are misclassified as independent contractors can sue their employers for discrimination.

To find out about your rights as an independent contractor, talk to a local discrimination lawyer.

Understanding Freelancer and Contractor Status

Workers are generally categorized as employees or independent contractors. Employees work for the employer; independent contractors work for themselves.

There may be a lot of overlap in the type of work contractors and employees do, but there are major differences in their status. Employees generally have stronger legal protections and rights than independent contractors or freelancers, including:

• Workers’ compensation protections
• Unemployment insurance
• Health insurance
• Minimum wage protections
• Overtime pay
• Employment discrimination protections

As a freelancer, you enjoy many benefits of working for yourself. You get to choose your work projects, work independently, and can earn more money. However, there are drawbacks to working on your own. You usually don’t get benefits, workers’ comp, or legal protections against discrimination.

Employers can save money using independent contractors. Employers don’t have to cover payroll taxes, insurance coverage, or follow labor laws.

No Federal Discrimination Protections for Contractors

Most federal anti-discrimination laws do not apply to independent contractors or freelancers, including:

• Title VII of the Civil Rights Act of 1964
• The Age Discrimination in Employment Act (ADEA)
• The Americans with Disabilities Act (ADA)

According to the U.S. Equal Employment Opportunity Commission (EEOC), non-employee workers are not covered by anti-discrimination laws.

In the absence of federal legal protections, independent contractors have a couple of options to protect themselves against discrimination:

1. Prove their employer misclassified them as a contractor
2. Check if their state anti-discrimination laws cover contractors

Misclassifying Independent Contractors

Many workers who should get employee protections do not take legal action because they don’t know they are misclassified.

Classifying workers as employees or independent contractors depends on state law. States generally have a legal test to determine employment status, depending on the type of work, type of relationship, and other factors. Just because you have an employment agreement that says you are an independent contractor does not make it so.

For example, California uses an ABC test to determine a worker’s status as an employee or contractor. These factors include:

• The worker is free from control in work performance
• The worker performs work outside the company’s usual course of business
• The worker is engaged in an independent occupation, business, or trade, as the employer’s work

If you don’t know whether you qualify as an employee or non-employee, you can talk to an employment law attorney about your status.

State Discrimination Protections for Independent Workers

Many states now include independent contractors in state anti-discrimination laws. For example, California’s Fair Employment and Housing Act (FEHA) applies to independent contractors. Under state law, FEHA applies to “persons performing services pursuant to contract.” States with similar independent worker anti-discrimination laws include New York, Minnesota, and Illinois.

The legal protections for independent workers vary by state. To understand your state’s anti-discrimination protections, talk to a local employment discrimination lawyer.

Legal Options and Challenges

If you think you are an employee misclassified as an independent contractor, you can take your case to court. If the court recognizes you as an employee, you can get compensation and benefits for back pay, lost benefits, and other damages.

You can also take legal action for unlawful discrimination or wrongful termination.

How To File a Discrimination Claim

You can file a federal discrimination claim with the U.S. Equal Employment Opportunity Commission (EEOC). To file a federal discrimination claim, you generally need an employer-employee relationship. If your employer misclassified your job as an independent contractor, you can still file a discrimination claim. This is a fact-specific determination and the EEOC will need to find you are an employee before they can pursue your discrimination claim.

You can file a state claim if your state has anti-discrimination protections for contractors. File a claim with your state labor or civil rights agency. Most state anti-discrimination agencies have a similar process as the EEOC. They will investigate your claim and can refer your case to mediation for resolution. If mediation does not work, the agency can try to resolve your claim or give you notice to file a civil lawsuit.

Seeking Legal Advice

Self-employed freelancers and independent contractors are targets of discrimination just like employees. An employment law attorney can review your case and explain your legal options. Your options include filing a discrimination claim, filing a state claim, or taking your employer to court.

Your legal options will depend on your individual situation and state laws. Contact a local discrimination lawyer for legal advice if your employer discriminated against you as an independent contractor.