Actresses and Millions of Other Independent Contractors....,

thenation |  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. 

It’s a problem not just in Hollywood but throughout the economy, in industries as diverse as real estate, trucking, technology, and home health care. And the problem is growing. As more companies classify their workers as independent contractors or push workers into nontraditional employment arrangements, an increasing number of people are at risk of having virtually no recourse for on-the-job harassment. 

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.”

When a film gets made, the employer is typically a holding company, often an LLC, and the people who work on the show are rarely traditional W2 employees. “Almost everybody across the board in this industry works as an independent contractor when there’s an individual production getting made, when you work on a feature film,” explained Maria Giese, a film director who has pushed for greater gender equality in the industry. The same is typically true for those who work on theater productions or commercials. An individual actress who has been sexually harassed could try to bring a case under Title VII—but that would require her first to prove that she was illegally classified as an independent contractor and should have been an employee. She may be successful. “I don’t think that there has been an answer legislated or adjudicated” as to whether film employees should be treated like employees, said Melissa Silverstein, founder of Women and Hollywood. For example, the Equal Employment Opportunity Commission, which is charged with enforcing Title VII and would only have jurisdiction if Title VII applied, is currently investigating gender discrimination against directors at the major movie studios, with its efforts still pending. 

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.