Tuesday, January 26, 2021

Female basketball referee was not an "employee" and can't sue under Title VII for sex discrimination

One barrier to winning a Title VII employment discrimination case is proving that you were an actual "employee" of the company that discriminated against you. This may be an easy call for most plaintiffs, but under Title VII, independent contractors are not entitled to any relief under Title VII because they are not employees. That is what happened here.

The case is Girard v. International Association of Approved Basketball Officials, a summary order issued on January 22. Plaintiff was a female middle and high school basketball referee who claims the Association's subjective methods for assessing referees resulted in her assignments to less lucrative sub-varsity games. Most of the referees are men. When plaintiff complained about this gender discrimination, she suffered retaliation in the form of a reduction in the number of games she was assigned to. 

While plaintiff sues the International Association and the School Board in Connecticut where she worked, the problem is that plaintiff was not an employee of either entity. She claims the employers are "employment agencies" and may therefore be sued under Title VII.The Court says that, for plaintiff to prevail, she must "plausibly plead an employer-employee relationship with the schools for defendants to have acted as employment agencies." She cannot prove that, and the Court finds she was instead an independent contractor. Under the multi-part test that court have devised in determining whether an employee is an employee or contractor, we consider the following:

[1] the hiring party's right to control the manner and means by which the product is accomplished . . . . [;] [2] the skill required; [3] the source of the instrumentalities and tools; [4] the location of the work; [5] the duration of the relationship between the parties; [6] whether the hiring party has the right to assign additional projects to the hired party; [7] the extent of the hired party's discretion over when and how long to work; [8] the method of payment; [9] the hired party's role in hiring and paying assistants; [10] whether the work is part of the regular business of the hiring party; [11] whether the hiring party is in business; [12] the provision of employee benefits; and [13] the tax treatment of the hired party.

The Court of Appeals cites Gulino v. N.Y. State Educ. Dept, 460 F.3d 361 (2d Cir,. 2006), for these factors. This may seem too complicated, but the ultimate question in these cases is the degree of control the defendant had over the plaintiff's employment. Normally, the "control" factor makes things a little easier, but this case identifies another wrinkle in the analysis: whether the plaintiff was hired in the first instance. "In determining whether a person has been 'hired,' we look primarily to 'whether [a plaintiff] has received direct or indirect remuneration from the alleged employer.'" The Court cites Gulino for that proposition as well.

While plaintiff on this Rule 12(b)(6) motion "clears the renumeration hurdle with respect to the schools because she alleges that the schools, school districts and league of schools pay her on a per-game basis," she cannot show, even on the face of her complaint, that the Association had the necessary control over her employment, among other things. The Court says:

Girard has not plausibly alleged that she was an employee of the schools in her capacity as a referee. She does not allege that the schools exercised meaningful control over how games are officiated.  She also fails to allege the duration of the relationship between a referee and a school. While the complaint alleges that Girard refereed a total of 37 games in the 2008–2009 season, the complaint does not indicate whether she  did so for the same or different schools or whether she refereed for the same school on more than one occasion or whether she had a relationship with any school that would suggest an employer-employee relationship. And Girard does not allege she received any employment benefits
from the schools other than pay for games she officiated. As the district court observed, these facts do not distinguish Girard's relationship with the schools from that of an independent contractor where the schools otherwise lack the right or ability to control how the services are performed.

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