Legal News

Attention Employers: Independent Contractors Can Now Pursue Race Discrimination Claims, Too

By Brian Harris

[This posting is for informational purposes and should not be construed or interpreted as either legal advice on any matter or as in any way creating an attorney/client relationship]

Local employers should expect to see an increase in race discrimination suits. That is, independent contractors are now free to pursue race discrimination claims against employers.

Until recently, only employees could bring suits against their employers for race discrimination. Employees could assert these actions under Title VII of the Civil Rights Act of 1964, the Pennsylvania Human Relations Act, or PHRA, or 29 U.S.C. § 1981.

Independent contractors, on the other hand, were generally precluded from pursuing these claims. Under Title VII, an independent contractor cannot maintain a cause of action for discrimination. Meanwhile, only those independent contractors in certain regulated industries may pursue claims of discrimination under the PHRA.

However, last week, the 3rd U.S. Circuit Court of Appeals ruled in Brown v. J. Kaz, Inc. that an independent contractor has standing to pursue race discrimination claims under 29 U.S.C. § 1981.

In reaching its conclusion, the court focused on the text of Section 1981, which provides that ?all persons . . . shall have the same right . . . to make and enforce contracts . . . as is enjoyed by white citizens.? Given that Section 1981 refers to ?all persons? and embraces all contracts, the court reasoned that an independent contractor is not precluded from bringing a case of action under Section 1981 for discrimination.

So now both employees and independent contractors can pursue race discrimination claims.

Moreover, although not discussed in the court?s opinion, a Section 1981 claimant does not have to first have to file a charge of discrimination with the U.S. Equal Employment Opportunity Commission prior to filing suit in federal court. So not only will the number of discrimination claims increase, but as will the speed with which these claims get to federal court.

Eric B. Meyer is a member of the Labor and Employment Group at Dilworth Paxson LLP. Readers can contact him via e-mail and follow him on Twitter.

Full post as published by The Legal Intelligencer Blog on September 21, 2009 (boomark / email).