The law provides that:
It shall be an unlawful employment practice for an employer —
(a) to fail or refuse to hire or to discharge any individual, or otherwise to 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; or
(2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin. (42 U.S.C. § 2000e-2(a).)
For purposes of Title VII, an “employer” is defined as “a person engaged in an industry affecting commerce who has fifteen or more employees . . .” (42 U.S.C. § 2000e(b).) The term “person” as used in the foregoing definition includes “one or more individuals, governments, governmental agencies, political subdivisions, labor unions, partnerships, associations, corporations, legal representatives, mutual companies, joint-stock companies, trusts, unincorporated organizatioins, trustees, trustees in cases under title 11, or receivers.” (42 U.S.C. § 2000e(a).)
The term “employee” for purposes of Title VII coverage is defined as “an individual employed by an employer . . .” Importantly, independent contractors are no covered under Title VII’s protections.
42 U.S.C. §§ 2000e — 2000e-17
Broderick v. Donaldson, 338 F. Supp. 2d 30 (D.D.C. 2004):
Title VII of the Civil Rights Act is a delicate balancing of employees rights to be free from discrimination and retaliation and the employer’s rights to conduct their business, or agency in the most effective, efficient manner they see fit. Title VII is most certainly a protection against unlawful discrimination and retaliation, not a vehicle for checking day to day decisions of an agency, particularly as they relate to hiring, firing, promoting, reprimanding, or evaluating their employees. Additionally, once an individual has made a successful case of wrongdoing under Title VII . . . they are not forever free from comment or criticism in the ordinary course of their employer/employee relationship.
Smith v. Dutra Trucking Company, 410 F. Supp. 513 (N.D. Cal. 1976):
It is clear that if an employer-employee relationship exists between plaintiff and defendant, then plaintiff has stated a claim under Title VII. Dutra is admittedly an “employer” as defined by the statute. Consequently the decisive question is whether plaintiff is Dutra’s employee or an independent contractor.
Unfortunately the statutory language is not particularly helpful in resolving this issue. An “employee” is defined as “an individual employed by an employer * * *.” Therefore, the first task facing 516*516 the Court is to decide what non-statutory standard should be applied in differentiating “employee” from “independent contractor” for purposes of Title VII.
There is authority that the terms “independent contractor” and “employee” are not to be construed in their common-law sense when used in federal social welfare legislation. Mednick v. Albert Enterprises, Inc., 508 F.2d 297, 299 (5 Cir. 1975),citing N. L. R. B. v. Hearst Publications, 322 U.S. 111, 64 S.Ct. 851, 88 L.Ed. 1170 (1944); United States v. Silk, 331 U.S. 704, 67 S.Ct. 1463, 91 L.Ed. 1757 (1947); Bartels v. Birmingham, 332 U.S. 126, 67 S.Ct. 1547, 91 L.Ed. 1947 (1947); Rutherford Food Corp. v. McComb, 331 U.S. 722, 67 S.Ct. 1473, 91 L.Ed. 1772 (1947). With respect to social legislation, the Bartels Court defined employees as “those who as a matter of economic reality are dependent upon the business to which they render service.” Bartels v. Birmingham, supra, 332 U.S. at 130, 67 S.Ct. at 1550, 91 L.Ed. at 1953.
While conceivably it could be argued that plaintiff would be considered an “employee” under this test, the application of such a broad standard to Title VII litigation is unwarranted for the reasons discussed below. In order to determine the scope Congress intended by the term “employee”, we benefit from the extensive judicial experience with the National Labor Relations Act. The Supreme Court in N. L. R. B. v. Hearst Publications, supra, initially gave a very broad construction to the term “employee” as used in the Act, emphasizing the history and purposes of the legislation. Commenting on the fate of that interpretation in N. L. R. B. v. United Insurance Co., 390 U.S. 254, 88 S.Ct. 988, 19 L.Ed.2d 1083 (1968), the Court stated:
“Congressional reaction to this construction of the Act was adverse and Congress passed an amendment specifically excluding `any individual having the status of an independent contractor’ from the definition of `employee’ contained in § 2(3) of the Act. The obvious purpose of this amendment was to have the Board and the courts apply general agency principles in distinguishing between employees and independent contractors under the Act.” N. L. R. B. v. United Insurance Co., supra, 390 U.S. at 256, 88 S.Ct. at 989, 19 L.Ed.2d at 1086.
While the Court agrees with plaintiff that Title VII is not to be construed narrowly, there is nothing in the legislative history of the Act to indicate a Congressional intent to construe the term “employee” in any manner other than in accordance with common-law agency principles. Those are the principles by which plaintiff’s assertion that she is an employee must be evaluated.
The traditional common-law test for distinguishing between employees and independent contractors is the “right to control” reserved by the person for whom the work is being done, “not only as to the result accomplished by the work, but also as to the details and means by which that result is accomplished”. N. L. R. B. v. Phoenix Life Insurance Co., 167 F.2d 983, 986 (7 Cir. 1948), cert. denied, 335 U.S. 845, 69 S.Ct. 68, 93 L.Ed. 395 (1948). With respect to Dutra, the test is not difficult to apply. As an overlying carrier, Dutra exercises minimal control over the subhaulers with whom it contracts. Plaintiff and her husband own their own equipment and pay their own costs, such as license fees and taxes. They may obtain health and disability insurance from any qualified source. They buy their gasoline, oil and garage services from suppliers of their own selection. They pay a rental fee to Dutra for the use of its trailer. Their profit is the difference between their operating costs and the hourly rate they are paid by Dutra. No continuing relationship 517*517 between the Smiths and Dutra was implied by the subhauling agreement. They were contracted only for as long as was required to do a specific job. The mere fact that plaintiff received an hourly rate, was directed to the jobsite, and was requested to arrive and depart at specified times did not transform her into an employee. See generally Associated Independent Owner-Operators, Inc. v. N. L. R. B., 407 F.2d 1383 (9 Cir. 1969). To support her assertion of “employee” status, plaintiff cites Associated General Contractors of Calif., Inc., 201 N.L.R.B. 311 (1973), the only case cited by either party which specifically analyzes overlying carriers. The Board in that case declined to decide the status of the overlying carrier and instead remanded the question to the appropriate Regional Director. On March 5, 1974, the Board supplemented its earlier decision with a finding that under the right-of-control test, the overlying carrier was not a joint employer with the contractors. Associated General Contractors of Calif., Inc., 209 N.L.R.B. 363, 364-365 (1974); Associated General Contractors of Calif., Inc., 209 N.L.R.B. 366 (1974). Applying the facts alleged to the common-law standard, plaintiff is clearly an independent contractor with respect to Dutra, and as such is not covered by Title VII.