Introduction In 1973, an ambitious Supreme Court decided McDonnell Douglas Corp. v. Green.

1 The case introduced an elaborate three-stage, burden-shifting framework for disparate-treatment employment discrimination cases. 2 Unique in design, 3 the ap- proach requires that the plaintiff establish, at stage one, the elements of a prima facie case, 4 though the Court noted that the elements would vary with the factual context. 5 To rebut the presumption of discrimination attendant to plaintiff's prov- ing a prima facie case, the employer must articulate, at stage two, a nondiscriminatory reason for its conduct. 6 The process concludes by focusing, at stage three, on whether the articulat- ed reason was a pretext for discrimination. 7 The McDonnell Douglas framework has elicited both plau- dits and disapproval. Hailing the approach as a milestone in civil rights law, supporters commend it for sensibly ordering the proof in discrimination cases and promoting efficiency by limiting the issues. 8 They praise the Supreme Court for easing a victim's burden of proving subtle yet invidious discrimina- tion. 9 Critics fault the McDonnell Douglas approach for its insistence on jamming facts into an inapt mold and for its unwieldy complexity which displaces reasoned determinations with the vagaries of befuddled jurors. 10 They accuse the high Court of usurping the role of Congress by instituting a system of proof not rooted in Title VII and otherwise unknown to civil law. 11 Time is the most strident detractor of McDonnell Douglas; this cryptic decision ...
itle VII of the Civil Rights Act (the legal basis of many discrimination lawsuits) applies to anyone over whom an employer exercises control that is, dictating the manner and means by which the individual performs the job. That means the law may cover even an otherwise independent contractor. The bottom line: The more leeway you give an independent contractor, the less likely Title VII will cover her. But if you control how and when she does her job, chances are she can sue under Title VII for alleged discrimination. Recent case: Dr. Barbara Salamon is a board certified gastroenterologist with medical staff privileges at Our Lady of Victory Hospital in Lackawanna. She said that a co-worker sexually harassed her. After she reported the alleged harassment, she said hospital officials began criticizing her work and placed her on a three-month rehabilitation program. She sued for sexual harassment and retaliation under Title VII. At trial, the hospital succeeded in getting the case dismissed because it had classified Salamon as an independent contractor. It argued that Title VII s employment sections don t cover true independent contractors. Salamon appealed, and the 2nd Circuit Court of Appeals reversed the decision to dismiss. The appeals court reasoned that the lower court got hung up on the labeling and failed to consider the substance of the relationship. It went on to explain that because the hospital exercised substantial control over the treatments Dr. Salamon provided to patients including specifying how and when she

Kimberly Brown. earned satisfactory performance reviews for two years before things turned ugly. J. She says the catalyst was her 1996 complaint that Dr. In 2006. She also alleges the other hospital defendants were complicit and helped him to use the hospital peer review and quality assurance process to punish her.S. 2008) Control Key The panel also emphasized "there is nothing intrinsic to the exercise of discretion and professional judgment that prevents a person from being an employee. 08-2713. Salamon and Moore's' relationship had deteriorated so drastically by 1999 that Salamon went to court. 2nd Cir. However.. Inconsistent administration of physical ability test can create a triable question of intentional discrimination.. She says he made inappropriate remarks about her appearance and harassed her with unwanted sexual advances.C.. 3d Circ. Independent contractor may bring Section 1981 race discrimination claim. Brown v. (Salamon v. No.should perform procedures and which drugs she should prescribe she was an employee for Title VII purposes. was sexually harassing her. Michael C. states that ³all persons´ shall have the same right ³to make and enforce contracts as is enjoyed by white citizens. Moore. she claims the hospital retaliated by criticizing and monitoring her work. responded to an ad in which Craftmatic was seeking sales representatives. She accused Moore of retaliating against her by giving her undeserved negative performance reviews and seriously damaging her career prospects. a gastroenterologist and internist. that court has followed prior decisions of three sister-appellate courts in holding that an independent contractor may sue for race discrimination under Section 1981. When she protested to upper management. §1981 (³Section 1981´). Each sales person signs an ³independent contractor´ agreement with Craftmatic. d/b/a Craftmatic of Pittsburgh. and then registered for a three-day training and an interview .. provide their own equipment and means of transportation for those sales calls. Kaz. ." Salamon. Circuit Court of Appeals. The issue is the balance between the employee's judgment and the employer's control.S. 11. and are paid on commission. 2009. Those representatives schedule their own appointments to visit potential customers¶ homes. 42 U. rather than by an ³employee´ of the company. 06-1707. Craftmatic is a distributor of adjustable beds that sells its product through sales representatives. an African-American female. Inc. Our Lady of Victory. the chief of gastroenterology at that time. which prohibits racial discrimination in the formation of contracts. Sept.´ In a case of first impression for the 3d U. Courts typically have dismissed discrimination claims under Title VII if those claims were made by an independent contractor. It didn t matter that Salamon billed patients directly and that the hospital did not pay her.

claiming race discrimination under Title VII. and Section 1981. Brown traveled by bus to Pittsburgh from her home in Cleveland for the session ± she testified that the reason was that she preferred not to drive in unfamiliar places. however. Brown ultimately sued Craftmatic. the plaintiff can prevail without the necessity of showing intentional discrimination unless the defendant employer demonstrates that the practice or policy in question has a demonstrable relationship to the requirements of the job in question. allowing that claim to go forward.[1] "A facially neutral employment practice is one that does not appear to be discriminatory on its face. This exchange was followed by some heated words. Brown states that the remark was a racial slur. and terminations are done consistently and in a non-discriminatory manner. neither of whom was African-American. Morris approached the applicants. Craftmatic¶s recruiting manager. equating it to a racial rebuff. That court also ruled that while Brown¶s independent contractor status did not preclude her from bringing claims under Section 1981. rather it is one that is discriminatory in its application or effect. The appeals court said that instead. The primary take-away from this case is that an independent contractor can bring a racial discrimination claim under Section 1981 against a company that allegedly discriminates in the formation of its contracts. the content of which is disputed. The Third Circuit disagreed. Morris responded with a remark. during which Morris stated that if he had any voice in the decision. the doctrine of disparate impact holds that a Title VII violation may be established by showing that an employment practice or policy has a disproportionately "adverse effect" (referred to as an adverse impact) on members of the protected class as compared with nonmembers of the protected class. Brown refused to shake Morris¶ hand. taking issue with the lower court¶s conclusion that Craftmatic would have been equally concerned with Brown¶s behavior. He shook hands with the two men and exchanged pleasantries with them. the Pennsylvania Human Relations Act.[1] .session in Pittsburgh with the company. in order to avoid the issues presented in this case. the real question was whether the same decision would have been made if Brown¶s race was ³taken out of the equation´ altogether. n US employment law."[2] Where a disparate impact is shown. is that there are disputed issues of fact. Brown did not provide evidence sufficient to support her claims under that statute. even if no racial slurs were made. For unexplained reasons. Regarding his initial meeting with Brown. and extended his hand to all three. even without an actual employee/employer relationship. The district court dismissed the Title VII and PHRA claims on the basis that Brown was not an employee. later stated that he knew that she was ³going to be a headache´ because she ³asks a lot of questions.[3] This is the so-called "business necessity" defense. Brown would not work for Craftmatic. The Third Circuit¶s decision does not mean that Brown has proven her case of discrimination. the company ultimately decided not to use Brown as a sales representative. What it means. With input from Morris. and that those issues should be decided by a jury. The Third Circuit then reversed the summary judgment on the Section 1981 claim. training. Companies that regularly rely on such contractors should be sure that hiring. while Morris says that he was expressing his disappointment that Brown refused to shake hands. Jay Morris.´ On the final day of training. She attended the training with two male applicants.

wikipedia.fortunecity.html Civil Rights Act of 1991 and tortuous interference may apply for contractual workershttp://www.Contents [hide] http://meltingpot.html .com/east/234/works/discrimination.allbusiness.

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