Sexual Harassment of Independent Contractors in the Workplace

The definition of a worker is changing. As contract jobs become more common and the “gig economy” grows, more New Yorkers are finding themselves working, but not technically employees. Does this new status mean they lose out on the workplace protections of the state’s Human Rights Law? Or are there rules about the sexual harassment of independent contractors in the workplace?

In this blog, I will review changes to the New York State Human Rights Law, which came into effect earlier this year. I will explain how the law protects against sexual harassment of independent contractors, vendors, and consultants in the workplace, and what they can do if they face discrimination by a contract employer.

Does Who You Work For Affect Your Sexual Harassment Claim?

Historically, civil rights laws have protected the employee against gender discrimination by his or her employer. When an employee reports sexual harassment to an employer, that employer is required to investigate and respond to the report.

But what if you work for yourself? According to the Department of Labor 1 in 10 workers in the United States is an independent contractor. That’s 15.5 million people who don’t technically have an employer. As the number of independent contractors and other contract employees continues to increase, it raises a question about whether these “gig” workers are trading freedom for protection.

New York State Human Rights Law Expands to Cover Sexual Harassment of Independent Contractors in the Workplace

While federal law still words its sexual harassment protections in terms of employees, the New York State Human Rights Law has been expanded to cover independent contractors and other non-employees in the workplace. Since April 12, 2018, contractors, subcontractors, vendors, consultants, and anyone else providing services in a business are covered by the law. That means companies are required to respond to sexual harassment of independent contractors on their job sites, even if the people involved aren’t on the company organizational chart.

Non-employees come in all shapes and forms. The New York State Human Rights Law is broad enough to cover:

• The short-term contract employee who is being hit on by her supervisor
• The remote worker receiving sexually explicit messages from a teammate.
• The temp worker being offered a full-time position in exchange for sexual favors
• The maintenance worker exposed to dirty jokes while on the premises
• The full-time employee who is sexually harassed by a janitorial contractor

What to Do When You Face Sexual Harassment on the Job Site

When you’re not a formal employee of the place where you do your work, it can be hard to know where to turn when sexual harassment becomes a problem. Your official employer and the business that operates your worksite are both required to take reasonable steps to provide a harassment-free worksite.

For sexual harassment of independent contractors, gig workers, consultants, or others outside the traditional employment model, that means can sometimes be more options to have your concerns heard and addressed. Temps can turn to their staffing company; maintenance workers to their direct employer. Anyone who faces sexual harassment in the workplace can file a complaint with the company managing that workplace.

Responding to Sexual Harassment By an Independent Contractor

The state law also protects against sexual harassment by an independent contractor or other occasional worker. Your employer can’t use the fact that the harasser works for another company as an excuse. They are required to take reasonable steps to end the harassment, even if that means negotiating with the temp company, cleaning service, or consulting firm about the actions of their workers.

Retaliation Can Mean Lost Jobs for Gig Workers

Gig work is also less stable than traditional employment. When facing sexual harassment, you may be concerned reporting it could cause you to miss out on the next job. Retaliation for lodging a sexual harassment complaint is illegal. But in the gig economy it can sometimes be harder to prove the reason you didn’t get that next job was because of your sexual harassment complaint. If you are concerned that reporting sexual harassment of independent contractors could have a negative consequence, you may also hire a private employment discrimination attorney to negotiate on your behalf or file a complaint with the Division of Human Rights.

At Eisenberg & Baum, LLP, our experienced gender discrimination and sexual harassment attorneys have seen all kinds of employment arrangements. We know how to make the New York State Human Rights Law work for independent contractors, gig workers, and traveling professionals. Contact us to schedule a consultation at our office in New York City, or over the phone.