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By Jacquie Lee
A couple hopped into the back of Brian Davis’ Uber car, began chatting with him, and immediately concluded he was drunk. His words were so slurred that the pair stopped their ride and hailed a taxi.
Uber fired Davis a month later. But he wasn’t drunk. His slurred speech is the result of a motorcycle accident that left him with communication difficulties.
Davis, like the nearly 24 million other U.S. gig workers, isn’t protected by the federal law that prohibits employment discrimination against people with disabilities. That’s because the Americans With Disabilities Act applies to “employees,” and Uber drivers are largely considered independent contractors.
The Equal Employment Opportunity Commission is concerned about that gap in coverage, particularly because there haven’t been any major legislative efforts by Congress to fix it.
Another law associated with employment discrimination, Title VII of the 1964 Civil Rights Act, shields people from bias based on sex, race, color, national origin, and religion as well as retaliation and sexual harassment. That, too, pertains to “employees.”
When independent contractors believe they’ve been the victim of bias related to their work, they can turn to Section 1981 of the Civil Rights Act of 1866. That law protects all workers from racial or ethnic discrimination, but it’s not commonly used by contingent workers.
Part of the problem is that nontraditional work arrangements are relatively new and the law hasn’t caught up.
“We’ve had a long time to build up the legal precedent and the frameworks for traditional work, but the rise of the contingent workforce has only recently been recognized,” Steve King told Bloomberg Law. He’s a partner at Emergent Research, a small consulting company that focuses on the future of work.
The number of people who work independently has ballooned in the past decade. In 2005, roughly 15 million people had alternative work arrangements, according to a 2016 National Bureau of Economic Research study. In 2015, that number rose to about 23.6 million people. That means about 16 percent of our current workforce is made up of contractors.
And that’s a conservative estimate—some researchers have found as many as 40 percent of workers are involved in some sort of contingent work.
As contingent worker growth outpaces lawmakers’ efforts to address the legal gap, the EEOC is left with “a strong concern with the lack of coverage,” Commissioner Chai Feldblum (D) told Bloomberg Law.
The EEOC, which enforces federal anti-discrimination laws, is usually the first stop for workers looking to sue an employer over discrimination. But the commissioners’ hands are largely tied when it comes to independent contractors.
“It really has no regulatory or other control over this aspect of the economy,” Carolyn Wheeler, a former assistant general counsel for the agency, told Bloomberg Law. “The EEOC has filed briefs arguing that particular individuals are not independent contractors within the meaning of the law, but that’s about all it can do,” she said in an email.
The laws enforced by the EEOC, unhelpfully perhaps, define the term “employee” as an “individual employed by an employer.” Rep. Eleanor Holmes Norton (D-D.C.) introduced legislation Feb. 7 to extend federal employment anti-discrimination laws to contractors. The bill currently has no co-sponsors.
Contingent workers can file a racial or ethnic discrimination lawsuit against employers under Section 1981, but they’d need to prove intentional discrimination. That’s usually harder than showing a business’ policies had an unforeseen discriminatory effect on a specific group of employees, Eric Bachman, an employment attorney with Zuckerman Law, told Bloomberg Law. Hiring a lawyer is also usually too expensive for contingent workers, he said.
The good news for gig workers is that Section 1981 doesn’t have a cap on damages, as Title VII does. The provision also lets a worker go to court immediately, whereas a Title VII claim has to go through an administrative process that usually leads to mediation.
“I have reason to think employers should be concerned if there was an uptick in filing under Section 1981,” Bachman said. “The jury can award them much higher amounts of compensation.”
Davis, the Uber driver, had to settle his dispute out of court because Uber requires drivers to sign arbitration agreements.
Worker advocates say simply tacking gender onto Section 1981 would be a clean and quick way to expand its coverage to more contingent workers.
“This is ripe for consideration now,” Jenny Yang, a former EEOC commissioner who’s now a government fellow at the Open Society Foundations, said. “In a perfect world you would do more, but in the current climate with the Congress we have now, it would be hard to do anything comprehensive right now on a federal level.”
Part of the problem with closing the coverage gap for contingent workers is the patchiness of the statistics on the gig economy. The last study the Bureau of Labor Statistics conducted to count independent contractors was in 2005. The BLS says a new study is in the works.
Most studies don’t look at workers who take on contract work as a side hustle to supplement their primary income from traditional jobs. That’s why King estimates that about 40 percent of workers are involved in contingent work one way or another.
When King published his first study in 2010 it gained a lot of attention, he said. There was a bit of an overreaction, with lots of people thinking “that everybody is going to be contingent soon,” but that’s not true, especially not in terms of primary income, he said. “The majority of Americans will get their primary source of income from a traditional job, at least for the next decade.”
But the shift to contingent work is definitely happening, he said. So far he hasn’t tried to study whether contingent workers are more likely to face discrimination than traditional workers.
“I would find it hard to believe that it wasn’t true, but I think it’s a very hard thing to empirically prove,” he said.
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