Expanding Discrimination Law To Protect Independent Contractors:
Why It's Crucial to Sex Equality

By JULIE HILDEN
julhil@aol.com
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Tuesday, Aug. 26, 2003

Discrimination law hasn't yet caught up with our part-timing, telecommuting, freelancing society. Under federal law - and to a large extent, under state law as well - independent contractors still enjoy little protection against discrimination. For instance, the main federal antidiscrimination statute, Title VII, expressly excludes independent contractors from its protections.

In contrast, even potential employees are protected by Title VII and other laws; they can bring hiring discrimination claims. Thus, merely strolling into a job interview earns you rights that years of working as an independent contractor cannot create.

Over the years, the rights that employees, and even potential employees, enjoy have gotten broader and broader. Across the country, not only race and sex discrimination, but also disability and age discrimination - and in some instances, sexual orientation discrimination as well - have increasingly become illegal.

But independent contractors have almost always been frozen out. As a result, the reality is that they can be subjected to blatant discrimination, and yet have no recourse.

That leads to an important question: Should independent contractors be fully - or at least partially - protected by federal and state discrimination law?

Should Independent Contractors Benefit From Discrimination Law?

There are a number of fairly obvious reasons to believe that independent contractors should, indeed, benefit from the protection of discrimination law.

First, doing so would, of course, protect independent contractors who are victims of discrimination, allowing them the opportunity to vindicate themselves.

Second, providing such protection might reform procedures within companies that don't intend to discriminate when seeking out independent contractors, but effectively do so anyway. Such companies may end up with mostly male and mostly white independent contractors, simply because they rely on male-dominated, mostly-white social networks to find them.

Discrimination law would give these companies an important incentive to perform harder but fairer searches when seeking independent contractors. (By way of comparison, the advent of employment discrimination law has caused universities to dramatically expand their hiring searches to seek qualified candidates for professorial positions who are women or minority group members.)

Third, giving independent contractors equal antidiscrimination rights would be an important corrective to what may otherwise become a serious problem of gender inequality. Women are increasingly attempting to avail themselves of a certain type of independent contracting - solo freelance work - because it offers a flexible schedule, and work-from-home opportunities that make parenting easier.

Thus, in a very real way, questions about the protections freelancers enjoy, are increasingly also questions about the protections that women enjoy. (Of course, men may opt to freelance in order to be more active parents, too, but women do so in disproportionate numbers.)

Women plainly can move - and are moving - into freelance work despite discrimination. But they may have to do so at a lower level - doing work for which they are overqualified and underpaid. A longtime employee who confronts a glass ceiling due to her gender, can sue. But a struggling freelancer who confronts a glass ceiling due to her gender, cannot.

A Case Study: Women Freelancers and The New Yorker

In the real world, do such glass ceilings actually exist for freelancers, in the same way they do for employees? There is strong evidence to that effect. The magazine world provides one good example.

Last year, a small website - MobyLives.com - started a big flurry in the New York world of media and publishing, when it began to chronicle the poor representation of women among the writers (some of whom are staffers, and some freelancers) featured in The New Yorker.

The statistics MobyLives offered were woeful: The site reported that "Women have never made up so much as fifty percent of the contributors of a given issue of The New Yorker in 2002. There have even been issues where the magazine's table of contents featured no women at all, or where the only contribution by a woman was a solitary poem."

Indeed, this summary may have been too kind. The most damning statistic is probably this one: The total percentage of 2002 New Yorker bylines belonging to women, for all issues, was less than 25%.

Following the unwanted attention, New Yorker editor David Remnick has promised to do better; at the end of 2003, perhaps MobyLives will assess whether, indeed, he has. Surely the most elite literary magazine in the country can attract many more women writers if it so chooses; there are enough highly talented women writers to approach a more proportionate level of representation among its bylines.

So what - besides sex discrimination, intentional or not - can explain why the representation of women in The New Yorker in 2002 is half of what it should be? Unlike in law, for example, women have never been legally barred from becoming writers. So shouldn't there be less discrimination in writing, not more?

After all, The New Yorker is hardly alone: Among many other magazines geared to appeal to both sexes (that is, leaving out, say, Maxim and Cosmopolitan), women writers are also dramatically underrepresented.

Now imagine, by comparison, a law firm in which only 25% of associates were women. Certainly, the chance of a discrimination suit would be high. Or suppose an elite law school, when reviewing applications, were to choose to admit a class only 25% of whom were women. Again, a discrimination suit would seem likely.

At magazines, tapping the pool of freelance writers for qualified women could remedy this inequality. Yet unlike the applicant for a legal or corporate job who believes she has faced discrimination, a would-be freelancer who believes she has faced discrimination has little, if any, legal remedy, at least under federal law. Thus, the magazines for which she seeks to work, have little incentive to take steps to include her and other women in the pool of freelancers they consider.

That is true no matter how blatant the discrimination may be; how low the percentage of women writers drops; or how long the situation stays the same, despite promises to remedy it.

Should Magazines Be Exempt from Generally Applicable Discrimination Laws?

Some may object, however, that while applying discrimination law to independent contractors generally would be a good idea, interfering with the freelance policies and practices of magazines like The New Yorker would infringe too far on free speech.

After all, suppose The New Yorker believes that certain male reporters with whom it has longstanding relationships provide the best coverage on, for instance, some topics within the areas of military affairs, presidential politics, and war. Wouldn't it contradict its editorial and journalistic mission if it had to make space for women reporters among its freelancer bylines, too?

The problem with this argument is that, taken to its logical conclusion, it would allow magazines to discriminate not only against women freelancers, but also against women staffers. Yet under current law, magazines and other media entities have the same obligation other companies do: the duty not to discriminate against their employees. And that duty has hardly destroyed their ability to pursue their editorial missions.

Why not? The answer is that under discrimination law, preferring a man over a woman due to a bona fide work-related reason - such as skill in covering the relevant topic area - remains entirely legal. What litigation can probe into is simply whether skill is the real reason for the preference, or whether gender is also playing a role. Thus, magazines that truly have good reasons for hiring three-quarters male writers will be able to maintain that proportion, even if discrimination law applies to them.

The fact that The New Yorker must comply with discrimination law - or account in court for its failure to do so - has not affected its premier position among magazines. Nor would requiring The New Yorker to comply with discrimination law with respect to freelancers cause it any harm.

As women (and men) desperately to try to figure out a way to both work and raise children, the option of freelancing will become ever more important. But the solution will always be flawed as long as becoming a freelancer means moving into a legal vacuum in which discrimination law does not exist.


Julie Hilden is a freelance writer. A FindLaw columnist, she practiced First Amendment law at the D.C. law firm of Williams & Connolly from 1996-99.

Hilden's first novel, 3, was just released in the U.S. and the U.K.. It will also be published, in French translation, by Actes Sud. Kirkus Reviews wrote about 3, "When tragedy intervenes, it's no surprise but shocking nonetheless - testament to Hilden's rather uncanny abilities." Hilden maintains a website at www.juliehilden.com that includes MP3 and text downloads of the novel's first chapter.

Hilden would like to thank FindLaw columnist and Hofstra law professor Joanna Grossman, and FindLaw guest columnist and Hofstra law professor Grant Hayden, for their advice on the relevant discrimination and labor law, while stressing that any errors are entirely her own.

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