Date of Award

12-2010

Document Type

Dissertation

Degree Name

Doctor of Juridical Science (SJD)

Abstract

Title VII of the Civil Rights Act of 1964 prohibits an employer's discriminatory employment practices against an employee on the basis of race, color, religion, gender, or national origin. Most contingent workers in the United States are faced with discriminatory employment practices, such as low wages and low or no benefits, and they are disproportionately women and minorities. Title VII is the focal point, but Title VII has not functioned as a remedy for contingent workers. This dissertation examines why contingent workers suffer discrimination, despite Title VII, and suggests possible solutions.

In the United States, the distinctive interpretation of laws has not functioned as a remedy for contingent workers:

1. The Definition of "Employee" in Determining Who is Covered by Antidiscrimination Laws is too Narrow. The United States Excludes Independent Contractors as Defined Under the Right to Direct and Control Test. Some Independent Contractors can be Dependent, Suffer Discrimination just like Employees, and Have few Opportunities to offer work subject to discrimination by Contractors.

2. The Definition of "Employer" in Determining Whom is Covered by Antidiscrimination Laws is too Narrow. Temporary Employees Are Employees of the Temporary Agency, but Not the Primary Contractor for Whom They Work. The Primary Contractor is the One Who Has Economic Control of the Situation, Effectively Sets Wages and Benefits, and can Discriminate Against Contingent Workers.

3. The Definition of What constitutes "Discrimination" is too Narrow. The United States Does Not Accept Applications of Disparate Impact Analysis, But Accepts Business Necessity Defense. The Employer's Pay Practices Have a Disparate Impact on Vulnerable Classes to Their Detriment, Even though there Is No Intent to Discriminate.

This study suggests that the U.S. needs to give antidiscrimination remedies to contingent workers through a change in the interpretation of the law and/or legislation:

1. Congress and/or courts must broaden the definition of covered "employee" to include contingent workers in the term "worker," and adopt the "economic realities test" to include some independent contractors as covered "worker."

2. Congress and/or courts must apply the "single employer doctrine" more broadly to include both the primary contractor and the temporary agency as one employer under the antidiscrimination laws.

3. Congress and/or courts must apply the disparate impact theory more broadly (business necessity defense such as saving cost and market standard should not succeed), or pass legislation requiring proportional wages and benefits for "workers" in the same workplace.

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