Employers’ use of independent workers instead of hiring employees is a common practice. If you’re one of these “gig” workers, state law offers some protection against discrimination. This is not the case with other state and federal laws.

Who is an Independent Contractor?

Depending on your circumstances, you may be a contractor or, under the law, be an employee misclassified by your employer. This may be intentional to avoid taxes, laws, and regulations that come with hiring someone or might be by mistake. Each situation is unique, and the law doesn’t always have clear lines.

If you perform a service and receive payment, you’re presumed to be an employee under several New Jersey laws. If your employer claims you’re a contractor, it carries the burden of refuting your employment status by proving the elements of the commonly called the ABC Test:

• You have been and will be free from control or direction over the performance of your work by contract and the facts of your situation
• Your service is either outside the usual course of the business where you work, or it’s performed outside of all its places of business
• You’re customarily engaged in an independently established trade, occupation, profession, or business

If, under this test, you’re an employee despite your “independent contractor” label, you benefit from anti-employment discrimination laws.

What Protections Do I Get If I’m an Employee?

Under federal law, it’s illegal for employers to discriminate against job candidates or employees based on a characteristic, or “protected basis,” which includes:

• Race
• Color
• Religion
• Sex (including gender identity, sexual orientation, and pregnancy)
• National origin
• Age (40 or older)
• Disability
• Genetic information
• Prior complaint of discrimination or participation in an investigation into discrimination

Prohibited discrimination includes actions related to:

• Job advertisement
• Recruitment
• Job applications
• Hiring
• Background checks
• Job referrals
• Job training and apprenticeship programs
• Job assignments
• Terms and conditions of employment
• Promotions
• Pay
• Benefits
• Discipline
• Discharge and constructive discharge (forcing someone to quit)
• Employment references
• Reasonable accommodation
• Harassment

The New Jersey Law Against Discrimination (NJLAD) has similar protections.

What Protections Do I Get If I’m an Independent Contractor?

The NJLAD states in pertinent part:

It’s a discriminatory practice for any person to contract with or otherwise do business with Any other person on the basis of their race, creed, color, national origin, ancestry, age, pregnancy or breastfeeding, sex, gender identity or expression, affectional or sexual orientation, marital status, civil union status, domestic partnership status, liability for service in the Armed Forces of the United States, disability, nationality….

The protections are much more limited than for employees, but there are some. State courts have interpreted this part of the NJLAD to prohibit the failure to contract, ending a contract, and refusing to renew an existing contract for a discriminatory reason. Though not explicitly listed in the statute, courts have also included victims of “quid pro quo” sexual harassment as being protected.

In a precedent-setting case, Plaintiff Eileen Totorello, the owner of J.T.’s Tire Service, claimed a United Rentals North America, Inc. branch manager tried to extort sexual favors from her as a condition of her company continuing to do business with United. Totorello alleged that she refused the manager’s advances, and United stopped contracting with her.

The trial court dismissed the case, but the Superior Court of New Jersey, Appellate Division, reversed the decision. The appellate court ruled Totorello made a valid claim under the NJLAD, ruling that this type of sexual harassment was a form of sex discrimination when United refused to continue the contract with her business.

“Where, as here, the harassment consists of sexual overtures and unwelcome touching or groping, it is presumed that the conduct was committed because of the victim’s sex.” The court in this case limited the ruling to “quid pro quo” allegations, where one party needs to agree to a sexual relationship in exchange for a benefit offered by the other.

Another type of sexual harassment, a hostile environment claim, involves a work environment where enduring severe, pervasive, offensive conduct creating a work environment that a reasonable person would consider intimidating, hostile, or abusive becomes a condition of the contract.

Later court decisions haven’t expanded NJLAD protection to contractors in these situations. Judges have ruled these circumstances involve the ongoing performance of a contract, not a refusal to contract or ending one.

Are You an Independent Contractor Who’s Suffered From Discrimination?

If you have questions concerning discrimination against you, whether you’re an employee or contractor, contact Kingston Law Group through email (hisaacs@kingstonlawgroup.com) or call us at 609-683-7400.

We will schedule a near-term reduced fee initial consultation.

We will listen to your facts, explain the law, and outline your best avenues to achieve social and economic justice. We can speak with you on the phone, via Zoom, or in person if you’re vaccinated against Covid-19. We accept credit card payments, and our appointments are from 9 a.m. to 5:30 p.m., Monday to Friday. We can schedule evening appointments during the workweek by special appointment only.

Contact us today. You’ll be glad you did.