If an individual is found to be an independent contractor under Title VII of the Civil Rights Act of 1964, that individual cannot sue for discrimination under that law because they are not an employee. Only employees can claim legal protection under Title VII. A surgeon recently discovered this legal reality when she sued the hospital for discrimination. She sued because the hospital revoked her medical practice privileges. She claimed to be an employee (and not an independent contractor), and therefore sued the hospital as her employer under Title VII on the basis of her sex, religion and ethnicity.
While the statement "he who hesitates may be lost" has been around for decades, it may be the underpinning of a very recent Supreme Court decision. In a unanimous decision issued by the United States Supreme Court on June 3, 2019 (Fort Bend County vs. Davis, No. 18-525, Argued 4/22/19; Decided 6/3/19) the Supreme Court of the United States held that an employment discrimination plaintiff's failure to exhaust administrative remedies is not a jurisdictional prerequisite to filing litigation and, therefore, Federal courts may be able to hear discrimination claims under Title VII even if workers fail to raise those claims with the Equal Employment Opportunity Commission ("EEOC") or a state workplace bias watchdog group.
Last month I wrote that conduct that is sexual in nature does not necessarily constitute sexual harassment unless it is directed at a person because of his or her sex. But what about conduct that is not necessarily sexual in nature, but really creepy? In other words, can stalking be considered sexual harassment, even if it is not overtly sexual? If so, can an employer be liable when a customer or some other third party is doing the stalking? In a recent case involving Costco, the Seventh Circuit unequivocally found that it can and was.
Wait, what? If the conduct directed at an employee is sexual in nature or has sexual connotations, doesn't that automatically make it unlawful sexual harassment? Not necessarily.
The Seventh Circuit Court of Appeals' landmark decision in Hively v. Ivy Tech Community College of Indiana (Case No. 15-1720), which established that Title VII of the Civil Rights Act of 1964 bans discrimination on the issue of sexual orientation, may be an indication that the Courts are willing to adopt much more inclusive positions towards gay workers and may, as well, keep moving in that same direction with regard to transgender employees. It is quite clear from a review of print and social media that LGBT advocates are becoming much more aggressive in the challenging of perceived discrimination in the workplace. Clearly, the Legal Basis behind the Seventh Circuit Court of Appeals Decision in Hively could also be used in future Cases to widen the scope of protection for transgender workers.