I know it's illegal to refuse to hire someone because of pregnancy. Does this hold if she's a contractor?

Question

Pregnancy is one of those protected things you can't discriminate against. When it comes to employment, I know you can't be refused a job because of a current (or intended) pregnancy. But I'm a freelancer. As a potential contractor (not employee), if I'm refused work directly because of my "condition" is that just as illegal? Thanks in advance!

I need to add: I CAN absolutely perform this work, thoroughly, completely, and excellently. The pregnancy/baby do not interfere with my ability to do so.

... and, it's not his word against mine. He sent me an email telling me this was why he wasn't giving me the work. :)

Answer 1

No, although it could vary by state. The laws protect pregnant employees, not independent businesses. There are exceptions. For instance, in my state workers in housecleaning, freelance nursing jobs and teachers are considered employees for the purposes of employing pregnant women laws even if they are contractual workers. These are essentially employee situations despite being independent 'businesses.'

Answer 2

You should check with an employment attorney, but I believe the answer is no. Part of the proof for employment discrimination is proving that you're an employee not an independent contractor.

However, there are circumstances where the discrimination protections might apply.

http://members.aol.com/mattlawfrm/indcont.html
The Armbruster decision outlines the usual approach taken with respect to Title VII (as well as Wage/Hour) claims in determining whether an individual is an "employee" for the purposes of the Act. According to the Court, the "economic realities" of the relationship must be assessed to see if the individual in question is functionally an employee because the individual performs most of his work for the employer and derives most of his income from the employer. In this context, a plumber who occasionally comes to fix a broken faucet for a company would be an independent contractor, while plumbers who were always at the facility and did most (or all) of their work for the company would be considered to be functional employees.

Some courts have disagreed with the use of this "economic realities" test, and employ the broader common law standard in deciding whether a person is an "employee" for the purposes of Title VII. Under this standard, the primary emphasis is on the degree of control and autonomy of the individual over hours of work, methods to perform the work, and materials used for the work. See, e.g., EEOC v. Johnson & Higgins, Inc., 92 F.3d 1529 (2nd Cir. 1996); Dixon v. Burman, et al., 742 F.2d 1459 (7th Cir. 1984). Ultimately, the issue of the proper definition of who is an employee for Title VII purposes will have to be decided by the Supreme Court. However, it seems quite likely that, in cases such as the above example of sporadic plumbers versus full-time plumbers, the Supreme Court ultimately will find Title VII coverage. A good rule of thumb to apply is the old-fashioned "Duck" rule (if it looks like a duck, walks like a duck, quacks like a duck, then it is probably a duck).

Here's what the EEOC has to say about it:
http://www.eeoc.gov/employers/overview.html

An employee is someone with whom the employer has an employment relationship. The existence of an employment relationship is most easily shown by a person's appearance on the employer's payroll, but this alone does not necessarily answer the question. Determining whether an employer has enough employees to be covered by these laws is, ultimately, a legal question. This subject is addressed in:

EEOC Enforcement Guidance on Equal Employment Opportunity Commission & Walters v. Metropolitan Educational Enterprises, Inc. and,


Section 2 of the new Compliance Manual on "Threshold Issues

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So the point is that it's a fact-intensive question. If you're truly a freelancer with independence over your own work, you may be out of luck. If you work with a few clients very closely, who control your work closely, then you migt have a claim.

Seek legal advice.

Answer 3

You can't discriminate against a pregnant woman if you have a job that she can physically do. If it is a job that you can not physically do, then they don't have to hire you. For example, if a man with no hands applied as a stenographer, it would not be illegal to not hire him for that job. Scott is also right. If you are an independent contractor, it doesn't matter what reason someone chooses not to accept your services.

Answer 4

I would say yes, but with all things it would be hard to prove. The companies word against yours...they could always say you were outbidded. I would check your local state laws, some are stricter than others.

Can you believe about 10 years ago in my early 20's a guy told me he would think about hiring me, because I was young and going to be having kids in the future and he had to figure that in. I told him don't bother I don't want to work for a jerk.

Answer 5

If they tell you to your face they are not hiring you because of your pregnancy, and if the job location is NOT in YOUR home, then they can do so if the job location is not secure and would threaten you or your baby's life. In some states, if you force the issue, they can jail you and take your baby when it is born because you are attempting to do fetal abuse by working in an unsafe environment.

If however the local of the work is specifically in your own location, and they tell you to your face they are not hiring you because you are pregnant, then you can sue them in court for not hiring you.

If they did not tell you why they are not hiring you, you have no leg to stand on (so to speak).

Answer 6

No.

You are an independent business. Any business can choose to do business or refuse to do business with any other business, for any reason. Discrimination does NOT come into play, legally speaking, at all in this case.

Sorry.

Answer 7

If she still refuses not to be (not hired) tell her if she really wants the job and not hurt the baby while working, to abort pregnancy........

Answer 8

I thinks its a stupid law especially if the pregnancy interferes with getting the job done