- Title VII of the Civil Rights Act of 1964 does not protect a Hawaii surgeon because he's an independent contractor, the 9th U.S. Circuit Court of Appeals has ruled (Henry v. Adventist Health Castle Med. Ctr. dba Castle Medical Center, No. 19-16010 (9th Cir., Aug. 14, 2020)).
- David Henry, a White male and board-certified surgeon, complained about discrimination while working as an on-call doctor in the emergency department for Adventist Health Castle Medical Center. His complaint initiated a review of his past surgeries, which ultimately led to his suspension. Henry filed suit, claiming racial discrimination and retaliation. The hospital successfully argued at summary judgment before the district court that Henry was an independent contractor and, as a result, did not qualify for Title VII protection.
- A three-judge panel of the 9th U.S. Circuit Court of Appeals affirmed. The panel explained that several factors supported a finding that Henry was an independent contractor. First, Henry was paid $100 a shift or $500 per emergency intervention, an arrangement "emblematic of an independent contractor relationship," the court said. Second, he did not receive "typical employee benefits." Third, that he was given a 1099 tax form, not a W-2. Fourth, both of the agreements he had with the hospital described him as an independent contractor and that he could work at competing hospitals and run his own private practice. Furthermore, Henry enjoyed a level of work freedom that traditional employees normally do not have access to, as he was "free to be elsewhere during his on-call shifts unless an emergency arose, and he could perform elective surgeries during his shifts if he coordinated backup coverage."
Title VII of the Civil Rights Act of 1964 forbids discrimination in the workplace based on race, sex, national origin, etc. But it provides protections for employees, not independent contractors.
An Illinois hospital was recently successful in defeating the claims of a surgeon who alleged she was subjected to discrimination at the medical center where she worked because she wasn't an employee. The 7th Circuit came to its decision by looking at the economic realities of the relationship between the doctor and the degree of control the employer exercised over her work. The court noted that, even though the hospital placed restrictions on the doctor, they weren't enough to qualify her for employee status.
The agency that enforces Title VII, the U.S. Equal Employment Opportunity Commission, looks at a lengthy list of factors to determine worker status, including the employer's right to control when and where work is done and whether the employer provides tools and equipment.
It's worth noting that written agreements stating a worker is an independent contractor may not be enough. Most of the tests for determining independent contractor status are based on the amount of control that an employer exercises over a worker.