The United States District Court for the District of Columbia recently held that government agencies are liable for complaints of discrimination by contract employees when the agency exercises sufficient control over these employees’ work activity. Harris v. Attorney General of the United States, D.D.C. Civil Action No. 04-220-3. In other words, contract employees can be considered federal employees for EEO purposes.

In Harris, an agency regularly screened employees of an independent contractor to work in positions within the agency. Carla Harris, an employee of the contractor, interviewed for one such position. At the time of this interview, Ms. Harris was pregnant, though she did not appear to be, nor did she discuss her pregnancy during her job interview. Following the interview, the agency approved Harris to begin working in her new position.

Two months later, Harris reported as scheduled for her first day of work. Harris was, by this time, visibly pregnant. They agency claimed that Harris behaved very badly almost from the moment she arrived. Under the agency’s version of the facts, Harris complained violently about her work station, used profanity, and broke the chain-of-command by asking for a computer from someone other than her supervisor. Harris, on the other hand, contended that she merely asked for a new chair to replace the broken one she found at her work station when she arrived there, and mentioned that she would like a computer to a fellow co-worker. The next day, the agency removed Harris from her position.

Harris filed a complaint of gender discrimination against the agency under Title VII of the Civil Rights Act, alleging that it fired her because she was pregnant. The agency argued that Harris could not prevail on her complaint as she was not an employee of the agency, and therefore could not file an EEO complaint under the federal sector EEO process.

The court found that in order to determine whether Harris was an "employee" of the agency for purposes of the EEO statute, it had to look at several factors, including the "economic realities of the work relationship." The court found that, although the terms of the agency’s contract specifically provided that the contractor’s employees did not become the agency’s employees when they accepted positions within the agency, Harris was the agency’s employee. Harris provided services integral to the agency’s mission, agency management endorsed her placement, determined her work activities, and provided supervision of these activities. The court therefore refused to dismiss the suit on the grounds that Harris was not an agency employee.

This case helps to clarify the standard for determining whether a person nominally employed by an independent contractor may nevertheless bring a complaint of discrimination against the government agency for which she performs most of her work. It also provides a useful example of the kind of relationship between agency management and contractor’s employees that courts will find sufficient to support such claims against an agency.

* This information is provided by the attorneys at Passman & Kaplan, P.C., a law firm dedicated to the representation of federal employees worldwide. For more information on Passman & Kaplan, P.C., go to http://www.passmanandkaplan.com.

 

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