Actresses—and Millions of Other Workers—Have No Federal Sexual-Harassment Protections

After The New York Times dropped its bombshell investigation into decades of sexual harassment perpetrated by film producer Harvey Weinstein, and The New Yorker followed up with allegations of not just harassment but sexual assault, dozens of women in Hollywood have come forward with stories about his harassment and abuse. But until these articles were published, Weinstein faced few repercussions for his behavior.

But there’s another reason actresses harassed by Weinstein may have been discouraged from reporting sexual harassment. Any who were working on a Weinstein film were almost certainly classified as independent contractors, not regular employees. And that means that the anti-discrimination and sexual-harassment protections of federal law didn’t apply to them.

Workplace discrimination and harassment based on sex are prohibited under Title VII of the Civil Rights Act, which outlaws “employment practice[s] [that] discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” If an employee feels she is being harassed at work, she can file a complaint with the Equal Employment Opportunity Commission, the first step in taking legal action. But the catch is that she has to be an employee for Title VII protections to apply. Independent contractors, temp workers, and those employed by contracting companies are not covered under the law. “Title VII has to be related to employment,” explained Catherine Ruckelshaus, program director at the National Employment Law Project. Anyone who’s not a traditional employee can’t easily bring claims under it. “The more attenuated you get from an employment relationship, the harder it is under Title VII.”

Still, it’s a major hurdle. And if the actress can’t prove that she was misclassified as a contractor, the only option left would be to bring a contract claim between two business entities—the employer and the contractor. “Then they’re in a private contract realm where they would have to argue that the person violated their rights to operate their business in an ethical manner,” Ruckelshaus explained. “Those are really hard to bring because typically they’re very fact-based.… If you get into the he said/she said side of things, if you can’t prove the allegations of tort or contract breach, you’re out of luck.” Whereas Title VII claims just have to prove the employer allowed harassment based on sex, contract claims have to prove an employer’s intent to discriminate. “It’s very specific,” Ruckelshaus said. “Filing a lawsuit would be more difficult based on independent contractor status,” Giese agreed.

Workers are frequently pressured into signing employment contracts that misclassify them, even though they should be employees. But proving it can be a huge hurdle to clear, not to mention just one more obstacle facing someone who’s deciding whether to report abuse. “It’s [often] more of a fight than they want to take,” Ruckelshaus said. “You can overcome [misclassification], but most workers don’t try or know that they can.”

You can read the full article in The Nation.


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