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Contractor Status Complicates Workplace Sexual Harassment

Who governs the misconduct directed at the rising population of our nation’s independent contractors?

(Image: Workplace harrassment via Shutterstock)

Someone with whom you work presents you with a “gift” – a large dildo wrapped in a bow and placed on your desk for all to see, as in the case of former broker Kathy Boyle – completely unprompted. Gifts are not uncommon in the workplace, but how should Boyle feel about receiving this from a male coworker? Flattered? Intimidated? How about harassed?

“I was three months in the business as a broker. … I was a rookie,” Boyle said. Indeed, things only got worse.

The harassment of Boyle, one of few woman in a veritable boy’s club, began in the mid-1980s, but not much changed over the decades she spent working at similar large firms. What she witnessed other women experience over the years horrified Boyle even more than what she endured, often in silence.

“It’s just as bad now in male-dominated businesses,” Boyle said. “Women [who complain] are just treated as whiny bitches.”

While instances of sexual harassment in the workplace are often referenced with regard to women, it’s important to note anyone could be subjected to harassment in the workplace, and often – due to certain stigmas – harassment not targeted specifically at women may be even more difficult to report.

Until recently, transgender individuals were the subjects of few studies, but growing research in this area reveals transgender people are the target of substantial and universal harassment and discrimination on the job. A 2009 survey by the National Center for Transgender Equality and the National Gay and Lesbian Task Force found 97 percent of transgender people surveyed reported harassment or mistreatment in the workplace.

While no form of harassment should take precedence over another, transgender individuals who do report their harassment are not merely treated as “whiny,” but more often than not face the loss of employment or even worsened conditions. No one, regardless of gender identity or expression, should feel threatened or silenced in the workplace.

Additionally, it’s not just skilled workers like Boyle or those expressing nonconventional gender identity on the job, who face devastating harassment and feel they are left with nowhere to turn. Many low-wage workers in the U.S. seek contract work as a means of making ends meet and, when faced with harassment, are left with similar employment tenuousness and even fewer resources.

According to the U.S. Department of Labor, “contingent workers are drawn disproportionately from the most vulnerable sectors of the workforce.”

Unskilled, low-wage contract workers often face harassment and exploitation because their employers know how badly they depend on the work and simply earning a livable wage is often of primary concern to them.

Often these situations create a Catch-22: Companies will claim their contractors control their own work and therefore the companies are not liable for complaints against them. When a company runs multiple worksites for unskilled contract laborers, it might avoid liability by claiming it cannot possibly oversee all worksites.

Boyle, who was a full-time, legal employee at the time of her ongoing harassment, ultimately left the “wire houses,” which she felt created a hostile environment for women, and started her own business in 2000.

While employed as a broker – with two firms after the dildo incident – Boyle went so far as to wear a wire to work and contacted an attorney about taking legal action when she was addressed with sexually explicit language. But he told her it wasn’t likely to end well – she would rack up $20,000 of legal fees, spend two years in litigation and “ruin her reputation” – and ultimately would not be worth the trouble. Although Boyle never received the justice she felt she deserved for the harassment she endured over the years, there are other workers out there with even fewer options.

This confusing territory is one many contract workers, not protected by the same laws as legal employees, are forced to tread.

Where the Law Falls Short

Title VII of the Civil Rights Act of 1964 protects legal employees against discrimination based on sex, but this law extends to clearly defined legal employees, not independent contractors, consultants or freelance workers. For workers exempt from Title VII, there is no human resources department, no union to protect them. And speaking up could mean forfeiting a much-needed job, drowning in legal fees by seeking civil action and even becoming retraumatized by a complex legal system.

One victim of sexual harassment, K, who prefers to be referred to by her first initial because of potential professional repercussions, talks about being harassed on the job when she was relatively new to the world of independent contract work.

In 2012, K was the public relations director for a small tech firm with what she describes as big, “A list” clients.

K’s firm was particularly excited over a major client they had just landed – an older, wealthy clothing entrepreneur based in Manhattan. It was in K’s job description to pay visits to the man in his home.

The client, who was at all times surrounded by “good-time girls,” was immediately flirtatious with K, eventually making sexual advances. K was sickened and humiliated by the incident.

“I was so sick when I left, I couldn’t even cry,” says K of the encounter, which began with provocative flirtation and progressed to more explicit and demoralizing behavior.

When K approached her company’s founders, they laughed off the incident. New to the businesses and fearful for her reputation, K had no idea where to turn.

There wasn’t much K could do. She eventually quit working for the firm, which blackballed her, but she said she wants her story to empower other women who find themselves in similar situations.

The Rise of Independent Workers

The harassment that workers such as K endure is particularly troubling at a time when more and more people take on independent contract and consulting work as their primary source of support or as a means of generating additional income.

As of early 2013, Fox News reported that about 12 percent of the workforce – or roughly 17 million Americans – consists of freelancers, contract workers and consultants.

Also according to Fox, this figure shows the most temp workers on government record since 1990 and a 50 percent jump since the end of the recession. The implication is clear: Companies are hiring but not for the long term. There is some symbiosis in this arrangement; often workers appreciate the independence and flexibility it permits them.

All of this makes for a “less committed relationship between the firm and worker,” according to Ethan Harris, a global economist at Bank of America Merrill Lynch. Unfortunately, the less committed relationship opens the door for a greater complacency toward harassment.

In 2010, Wendy Kaminer argued in The Atlantic, the sexual harassment experienced by an independent contractor is less threatening than that facing an employee with virtually no independence from his or her employer. Kaminer’s assessment is deeply troubling:

“[T]he harm suffered by an independent contractor confronted with an explicit, or implicit, demand for sex is relatively trivial compared to the harm suffered by an employee confronted with the same demand. The employer’s moral as well as legal obligation to an employee is much stronger than his obligation to a contractor or consultant who is genuinely independent of him and free to take her business elsewhere. If she hasn’t cultivated business elsewhere, that’s her problem and maybe her fault.”

Certainly there are cases where claims of harassment “trivialize” other instances of sexual harassment, but comparing the severity of instances of harassment in and of themselves is unproductive. Each instance should be taken and assessed for the gravity of its claim. What Kaminer seems to overlook – in saying the independent contractor is less “powerless” than the employee – is that sexual harassment should never be acceptable in the workplace, that the employer’s behavior is inexcusable and that encouraging the contractor to find work elsewhere is an egregious instance of blaming the victim.

Additionally, Kaminer fails to take into account the history of the individual victim – not all employees begin as blank, equally resilient slates – and the acute impact of repeated trauma.

The High Toll of Harassment

Psychiatrist David Reiss, who has handled thousands of cases of sexual harassment for workers seeking compensation, talks about the toll this takes on patients.

“Something that can seem objectively minor, for a person with the right vulnerabilities, can legitimately cause very severe problems,” Reiss said.

Problems described by Reiss can range in severity from difficulty forming future relationships to psychosis and even suicide, in his experience.

“Some people are more resilient or do not have a history of trauma,” he adds.

Independent contractors can seek legal action outside the workplace on a case-by-case basis, but frequently the system retraumatizes sufferers of harassment, a factor that prevents people from seeking help in the first place. For someone in K’s situation, seeking legal action is often far from a first impulse.

Reiss, who has dealt with worker compensation claims rather than civil law explains: “It’s more complicated with civil law. … They try to sort out everything, and they can dig up everything that has happened. That’s why people don’t want the law to get involved -because the system can be retraumatizing.”

An employer who harasses an independent contractor does not act in a vacuum. It means there is an employer out there who promotes harassment in the work environment and who likely will continue to do so. We can’t govern people’s minds, but we can make sure the workplace is safe for everyone, regardless of their contract or benefits. Living free of harassment is not a benefit – it’s a right.

What Can Be Done?

One option for independent workers who face harassment, according to California-based employment attorney Leonard Emma, is for an independent contractor to prove he or she is actually working as a legally defined employee, based on hours, work responsibilities and additional factors.

“The employer needs to establish what [the worker] actually [is],” Emma said. “If the employer is unable to prove [the worker] is an independent contractor, there can be a sexual harassment claim. Misclassification of employees is commonplace because it saves the employer money.”

According to Emma, under federal law, there is a “13-factor test” to determine whether someone is an employee or an independent contractor.

Still, Emma said, “there are many cases where people truly are independent – sometimes the independent contractor can actually get paid more,” a Catch-22 for the worker who wants to earn more money while maintaining the right to certain legal benefits.

Another possibility for contractors, according to Emma, is to put a company on notice for an individual’s behavior. If a company is repeatedly put on notice based on claims of harassment and fails to do anything about it, “there might be a cause for action and for the contractor to get redress.”

Emma notes that states also have the option of being more protective than federal laws and that more money is generally being allocated toward establishing the legal role of so-called independent contractors. For instance, California passed a law in 1999 to protect its independent contractors.

In 1999, the California Legislature extended portions of the Fair Employment and Housing Act to independent contractors as well as employees. The changes to the law meant California employers could no longer defend claims of sexual harassment by pointing out that the individuals providing services to the company were not technically employees. Emma explains contractors should check to see if the states in which they work provide similar provisions.

According to the global law firm DLA Piper, “Part of the rationale in excluding independent contractors from the purview of harassment laws was that, because of the nature of their work and their status, independent contractors are not compelled to endure harassing situations to the same degree as employees.”

For Boyle, starting her own business following years of harassment working for others has given her the option to turn down clients who make her feel uncomfortable from the start without having to further engage. She adds that there are more women working as independent contractors these days because of the residual “chauvinistic attitude” in many large firms.

Not everyone has the means or opportunity – nor should they – of finding new employment, or even starting their own business, when they are continually faced with harassment in the work environment. There is a need in our nation for broad, legislative policy shifts that aid the independent contractor rather than the current fend-for-yourself atmosphere.

According to Alix Rubin, an employment attorney based in New Jersey, employers are liable for anything that occurs on their premises, therefore “employers should make it clear to their employees that sexual harassment will be not be tolerated on the employer’s premises … regardless of whether or not the harassers or the victims are employees.”

Rubin adds: “All employers should have a complaint procedure that covers employees and independent contractors alike. Such a procedure should include a mechanism for reporting any sexual harassment, either informally or formally or both, and the employee should have a choice of at least two different people to report the harassment to, in case one of the people to whom the report should be made is the harasser.”

We can also hope other states will catch up to California and provide the same protections to independent contractors who are unsure of where to turn in the face of harassment and discrimination. Some state courts are beginning to take such action, and more often liability is leaning in favor of the independent worker.

While it may be time to update employment laws to protect contract workers, many are still all too happy to forfeit certain rights to maintain their independence from binding employment contracts. Still, those who seek this job independence – including our nation’s unskilled, low-wage contract workers – should not have to sacrifice their basic human dignity to support themselves.Ultimately, we must target harassment at the root – by ensuring it’s unacceptable in any workplace, regardless of the arrangement between workers.

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