A federal district court judge in the District of Columbia ruled that a former receptionist for the African Development Foundation (“ADF”), a federal agency, could not sue the agency for discrimination under Title VII of the Civil Rights Act because she was not a federal employee. Mason v. African Development Foundation, D.D.C. No. 03-1997 (RBW), December 7, 2004). Ms. Mason worked as a receptionist for the ADF for 4 1/2 years before she was fired. In her complaint, Ms. Mason alleged that she was harassed and subjected to a hostile work environment based upon her race, color, sex and national origin and that she was terminated in retaliation for complaining about the harassment. The ADF filed a motion to dismiss the suit arguing that because Ms. Mason was an independent contractor, and not an employee, she could not sue ADF under Title VII. The judge agreed with ADF.
In ruling for ADF, the judge looked at what are called the “economic realities” of the work relationship between Ms. Mason and ADF. Relying on a decision from the U.S. Court of Appeals for the DC Circuit – Redd v. Summers, 232 F.3d 933 (DC Cir. 2000) – the judge in Mason looked at four categories of factors in deciding whether Ms. Mason was an employee or an independent contract: (1) the intent of the parties; (2) whether contracting out was a reasonable business decision; (3) the extent to which the employer controls the work; and (4) whether the work relationship has attributes commonly found in arrangements with independent contractors or employees.
In evaluating these factors, the judge found that several factors favored Ms. Mason: she was required to work at ADF’s headquarters using equipment provided by ADF; she received annual leave; and the skill level required for receptionists was not the type for which a federal agency generally contracts out. On balance, however, the judge ruled that the other factors weighed more heavily in favor of an independent contractor relationship. Specifically, the judge held that the following factors demonstrated that Ms. Mason was an independent contractor rather than an employee: she was permitted to work nights and weekends without advance notice to ADF; the consistent use of the word “contractor” in employment documents relating to Ms. Mason evidenced that the parties intended an independent contractor relationship; ADF did not have extensive control over the means and manner of Ms. Mason’s work performance; and that ADF did not afford Ms. Mason civil service procedures when it fired her evidenced that it did not consider Ms. Mason a federal employee.
Although the complainant in Mason was ultimately deemed to be an independent contractor and not an employee, this decision also illustrates that there can be many circumstances under which an individual hired as “independent contractor” can be deemed an employee for the purpose of being able to sue a federal agency for discrimination.
** 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 www.passmanandkaplan.com. **
