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All Members of The American Workforce Deserve Rights Under Title VII

by Paul Samra

· employment,title vii,discrimination,section 1981

Title VII defines employer too narrowly—the statutory definition of employer needs to be expanded as all members of the workforce deserve to be protected against employment discrimination. Adopting this change will ensure all members of the workforce with statutory protection from discrimination under Title VII which will achieve economic parity in America. Although objections will be raised as either an employee or independent contractor of a small business can bring an employment discrimination claim under 42 United States Code section 1981, both employee’s and independent contractor’s rights are limited by section 1981 as it relates to Title VII. First, section 1981 does not provide recourse to disparately impacted employees or independent contractors. Second, section 1981 does not protect as many classes of people as does Title VII. Third, section 1981 requires employees to establish a heightened evidentiary standard to recoup punitive damages in relation to Title VII’s evidentiary standard for punitive damages.

EXPAND THE STATUTORY DEFINITION OF EMPLOYER TO PROVIDE ALL MEMBERS OF THE AMERICAN WORKFORCE WITH RECOURSE FOR EMPLOYMENT DISCRIMINATION UNDER TITLE VII

• Current Law—Title VII section 701(b), 42 United State Code section 2000e(b)

Title VII defines the term “employer” as a “person engaged in an industry affecting commerce who has fifteen or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year.”[1] An employer is liable for its intentional discrimination under Title VII when the employer intentionally treats one person different from another based on that person’s race, sex, religion, color, national origin, or ancestry whereas section 1981 protects independent contractors or employees from intentional discrimination on the grounds of only race or national origin. Courts have not adopted a uniform test for deciding whether a small employer with fewer than fifteen employees constitute a single employer.[2]

• Changes to Title VII section 701(b), 42 U.S. Code section 2000e(b) 

Amend the term “employer” to a “person engaged in an industry affecting commerce who has at least two or more employees, or at least one independent contractor, for each working day in each of twenty or more calendar weeks in the current or preceding calendar year.” Expanding the statutory language that defines “employer” will allow employees who are employed by at least one person and all independent contractors with recourse against employer discrimination under Title VII. Allowing employees and all independent contractors statutory protection from discrimination under Title VII will achieve economic parity in America among all members of the workforce

• Expand the Statutory Definition of Employer to Achieve Economic Parity

All members of the work force deserve to be protected against employment discrimination. Adopting this amendment to provide all employees and independent contractors with statutory protection from discrimination under Title VII will achieve economic parity in America among all members of the workforce. Expanding the statutory definition of employer will not only deter employers from engaging in discriminatory practices both in the workplace and in contracting, but it will also affect the economic and moral underpinnings of Title VII by achieving economic parity in America among all members of the workforce as independent contractors. All employees can bring a disparate impact claim against an employer for a facially neutral policy that has a disproportionate impact on a protected class. Under Title VII currently, these employees and independent contractors cannot bring a disparate impact claim against an employer as there is no recourse in neither Title VII nor section 1981.

Expanding the statutory definition of employer will provide independent contractors with a remedy against discrimination in contracting. Independent contractors who are women or other classes of persons do not have a remedy against discrimination in contracting. Expanding Title VII to include coverage for independent contractors that are women or other classes of persons will guarantee the increasing percentage of persons in the workforce who are working as independent contractors with a remedy against discrimination in contracting. This will not only expand economic liberties for independent contractors, but it will also help achieve economic parity in America among all members of the workforce.

• Objections to Expanding the Statutory Definition of Employer

The strongest objection to expanding the statutory definition of employer is section 1981:

All persons with the jurisdiction of the United States shall have the

same right in every State and Territory to make and enforce contracts,

to sue, be parties, give evidence, and to the full and equal benefit

of all laws and proceedings for the security of persons and property

as is enjoyed by white citizens, and shall be subject to like

punishment, pain, penalties, taxes, license, and exactions of every

kind and to no other.

42 United States Code section 1981. Section 1981 outlaws only intentional discrimination. There is no minimum number of employees required for coverage under section 1981. Even small employers can be sued under that statute.[3] However, three notable differences between Title VII and section 1981 obviate the objection to expanding the statutory definition of employer.

First, Title VII prohibits disparate impact discrimination —not section 1981. Disparate impact theory is not applicable in employment discrimination claims based on section 1981.[4] Additionally, section 1981 does not apply to the mixed-motive framework. An employer within the existing statutory definition can engage in hiring practices that disparately impact a protected class with impunity as that employee or independent contractor cannot sue the employer under section 1981 or Title VII. Congress needs to adopt this recommendation to safeguard all employees and independent contractors from discriminatory hiring practices.

Second, section 1981 applies to discrimination based only on race or ethnicity while Title VII covers more classes of people, such as discrimination based on gender and religion. Although section 1981 protects independent contractors from discrimination on the grounds of race or national origin, independent contractors who are women or other classes of persons do not have a remedy against discrimination in contracting because section 1981 does not provide such coverage. Moreover, the classes of people who are racially discriminated against on the basis of national origin, or ancestry are not afforded protection under section 1981. For example, if an employee or independent contractor is discriminated against on the basis that one was born in an Asian country, as opposed to ethnic characteristics, section 1981 does not afford individuals with recourse. Discrimination based on race and ethnicity does not mean race based on national origin or ancestry.[5] Under the current statute, an employer with less than fifteen employees can discriminate against an employee or independent contractor on the basis of national origin or ancestry as section 1981 does are not protect those classes. Increase the scope of protected classes to afford those class members with recourse under Title VII that otherwise currently have no recourse.

Third, punitive damages under Title VII and section 1981 are determined on different evidentiary standards. Proof for punitive damages under Title VII only requires a preponderance of the evidence while section 1981 requires proof by clear and convincing evidence.[6] Section 1981 presents remedial issues for those seeking recourse. Section 1981 requires a higher standard to prove punitive damages which plays to the employer’s benefit. Had an employee sued the employer under Title VII, the employee would have an easier burden to prove the employer’s discriminatory conduct rose to the level of recklessness. Expanding the statutory definition of employer would foreclose this issue as it relates to employees and independent contractors.

Congress intended not to subject small businesses to the costs of defending employment discrimination claims under Title VII [7] to prevent small businesses from closing per the social aspect that small businesses should not be subjected to government regulation. However, in light of the increasing percentage of both small business and of persons who are working as an independent contractor, Congress should overrule its past position and expand Title VII protection to employees and independent contractors to achieve economic parity among all members of the American workforce.

[1] Title VII section 701(b), 42 U.S. Code section 2000e(b).

[2] Maria L. Ontiveros Et Al., Employment Discrimination Law: Cases and Materials on Equality in the Workplace, Chapter 2, 42 (10th ed.). Cf. Papa v. Katy Indu., Inc, 166 F.3d 937, 940–41 (7th Cir. 1999) (rejecting the common law employer test and favoring the policy for exempting smaller employers from coverage of law prohibiting discrimination in employment).

[3] See Employment Discrimination Law at Ch. 2, 42.

[4] Id. at Ch. 3, 2.

[5] Id. at Ch. 12, 10.

[6] See id. at Ch. 7, 12. Price Waterhouse v. Hopkins, 490 U.S. 228, 253 (1989).

[7] Id. at Ch. 2, 43.