About 20% of workers in the United States are contractors: individuals hired to work on a specific project or for a specific period of time. This number is bound to grow as employment through the gig economy reaches into more sectors and the use of subcontractor agencies proliferates. Indeed, participation in the gig economy has expanded enormously during the COVID-19 pandemic. But the pandemic has also exposed the vulnerability of gig workers and the precarity of relying on gig work as a sole source of income. Many statutory workplace protections do not apply to independent contractors. The lack of healthcare benefits, paid time off, and minimum wage protections for gig workers has been the subject of considerable recent media attention. And while Congress expanded unemployment benefits to these workers during the pandemic, they generally do not qualify for unemployment benefits because neither they nor whoever they are performing services for pay into unemployment insurance.
Unfortunately, most independent contractors also lack full protection from discrimination in the workplace. In Massachusetts, while workers classified as employees are protected by state (M.G.L. c. § 151B) and federal (Title VII, ADA, and ADEA) antidiscrimination laws, independent contractors are not. The Massachusetts antidiscrimination law, Chapter 151B, prohibits employers from discriminating on the basis of race, color, religious creed, national origin, sex, gender identity, sexual orientation, pregnancy, age, veteran status, genetic information, and disability. Though the language of Chapter 151B does not explicitly exclude independent contractors from its coverage, courts have repeatedly held that 151B does not protect independent contractors. Another source of discrimination protections, the Massachusetts Civil Rights Act, provides protection for workers who have experienced sexual harassment and/or assault, but does not cover other forms of discrimination unless they involve threats, intimidation, or coercion.
One potential solution to the gap in coverage is for independent contractors to bring claims under the Massachusetts Equal Rights Act, rather than under Chapter 151B. MERA, the Commonwealth’s analogue to federal § 1981, protects the rights of everyone in the Commonwealth to make and enforce contracts. The Commonwealth’s appellate courts have made clear that where there is no available remedy under § 151B, an employee may bring discrimination claims under MERA. Thus, MERA should cover other categories of workers who fall outside of the protections of 151B, including independent contractors. Indeed, the Appeals Court in Massachusetts has stated that independent contractors, while not eligible to bring 151B claims, are entitled to bring a claim under MERA.
However, there are a few downsides to bringing employment discrimination claims under MERA compared to doing so under 151B. First, 151B covers more categories of workers. MERA covers sex (including pregnancy), race, color, creed, national origin, age, and disability, but does not cover veteran status or genetic identity. Further, though the SJC interprets discrimination statutes liberally, and thus would likely conclude that ‘sex’ also covers gender identity and sexual orientation, MERA does not explicitly address those categories, while 151B does.
Also, because courts have repeatedly emphasized that plaintiffs may not join MERA claims to their 151B claims, independent contractors and their lawyers may be dissuaded from bringing MERA claims if they erroneously think they are covered by 151B. On the other hand, while MERA does have the benefit of a longer statute of limitations, this benefit could actually harm plaintiffs who believe they are independent contractors and thus do not file a claim with the MCAD within the 300-day period mandated by 151B. If a court later determines they are in fact employees, they will have waived their rights under 151B, and will not be allowed to proceed with their MERA claim.
A better approach would be to amend the language of 151B to include independent contractors and other non-traditional employees in its protection. Other states have already amended their antidiscrimination statutes to protect independent contractors. In 2019, the New York State Legislature amended its anti-discrimination law to explicitly prohibit discrimination against non-employee workers. The statute defines “non-employees” to include contractors, subcontractors, vendors, consultants, or any “other person providing services pursuant to a contract in the workplace.” New York also removed the minimum employer size restriction, so its antidiscrimination law now covers all employers in the state. Maryland’s antidiscrimination statute explicitly includes individuals working as independent contractors in the statutory definition of “employee,” though it limits “employers” to those with 15 or more employees.
Amending 151B has several benefits compared to relying solely on MERA to protect independent contractors. First, as noted above, 151B covers more categories of workers than MERA. Second, even where recognizing an alternative avenue under MERA, courts have noted the incongruity of requiring some workers to file complaints at the MCAD while allowing others to proceed directly to court. Expanding the language of 151B thus streamlines the remedial mechanisms available to workers who have experienced discrimination.
Finally, the MCAD process was intended to be navigable by pro se complainants. The MCAD process is more accessible to pro se complainants than is filing a lawsuit. But the MCAD only has jurisdiction over 151B claims, not MERA claims. Opening the MCAD process to independent contractors would ensure access to justice for those who aren’t able to obtain counsel. Further, workers who experience discrimination may not understand why their employment status is relevant to the availability of a remedy. Many workers may not even be aware of their status as independent contractors until they are informed that such status disqualifies them from the protections of 151B. Others, knowing they are classified as independent contractors, may not realize they are able to contest this status. Amending 151B to explicitly include independent contractors would provide pro se complainants the clearest path to a remedy.
No worker should be vulnerable to discrimination just because she is classified as an independent contractor. The Massachusetts legislature should act to ensure that all workers in the Commonwealth are able to pursue their livelihoods safely and free from discrimination.