Independent Contractors and the FEHA: Is There Protection Available for Claims of Sexual Harassment?
We recently helped a client who had begun working for a Los Angeles-area restaurant essentially as an independent contractor. She acted as a consultant to the restaurant for their menu; interior design; and in other ways. This client ran her own food service business but she felt that this was a good opportunity for her. Unfortunately, while she was engaged in performing services for the restaurant, our client was sexually harassed by employees of the restaurant in a pretty horrific way.
One of the first questions the client asked us was whether she had any legal right to pursue a claim for sexual harassment. This client believed that because she was merely an independent contractor for the restaurant, she was prevented from suing for her workplace harassment claims as she would if she were an employee. However, the answer to her question of whether she still had the right to pursue a sexual harassment claim against the restaurant as an independent contractor was a resounding "Yes!"
The California Fair Employment and Housing Act (or "FEHA") certainly does offer protection from many workplace claims to employees. However, the FEHA also protects "persons performing services pursuant to contract" –or, independent contractors- under certain circumstances. For example, FEHA protects
both employees and "persons performing services pursuant to contract" by redefining an employer for purposes of the anti-harassment division of the act as "any person regularly employing one or more persons or regularly receiving the services of one or more persons providing services pursuant to a contract."
Additionally, the employer has a duty not to allow anyone to sexually harass its employees or persons performing services pursuant to contract. Therefore, an entity must not knowingly allow sexual harassment to occur irrespective of whether the person being harassed is an employee or independent contractor and irrespective of whether the person doing the harassing is an employee, contractor, or even a customer or other person. In other circumstances, such as in the case where an individual feels he or she is being discriminated against by the employer, the FEHA may not offer any protection to independent contractors.
At least there was a somewhat positive end to the story for our client. While it certainly did not make up for the horrible harassment our client experienced, in the end Markson Pico LLP was at least able to make sure the restaurant paid significant compensation to the client.