One of the more hotly debated topics is whether executives should be viewed as the employer versus the employee when they suffer discrimination at work. This matters a great deal because if s/he is deemed an employer, then the executive will not be covered by Title VII of the 1964 Civil Rights Act‘s (and most other federal laws’) anti-discrimination provisions.
And this legal question is increasingly playing out in corporate boardrooms, medical practices, and law firms around the country. In Clackamas Gastroenterology Associates v. Wells, 123 S.Ct. 1673 (2003), the Supreme Court outlined the main test courts use to decide whether a person is an “employee” covered by federal anti-discrimination laws.
The key factor is how much, or little, control the individual has over their work, compensation, and workplace decisions.
In Clackamas, the Supreme Court settled on a six-factor test to assess if a person holding a high-level position should be considered an “employee” including whether:
- the company can hire or fire the individual or set the rules and regulations of their work;
- the extent to which the company supervises the individual’s work;
- the individual reports to someone higher in the company;
- the extent to which the individual is able to influence the company;
- the parties intended that the individual be an employee, as expressed in written agreements or contracts; and
- the individual shares in profits, losses, and liability of the company
Clackamas, 123 S.Ct. at 1680. None of these factors is decisive; instead, they should be viewed as a whole. Id. at 1681.
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Maryland Washington DC Virginia Discrimination Attorneys
Hiring a proven and effective advocate is critical to obtaining the maximum recovery in an employment discrimination case. Eric Bachman, Chair of the Firm’s Discrimination Practice, has substantial experience litigating precedent-setting individual and class action discrimination cases. His wins include a $100 million settlement in a disparate impact Title VII class action and a $16 million class action settlement against a major grocery chain. As Special Litigation Counsel in the Civil Rights Division of the Department of Justice and as lead or co-counsel in numerous jury trials, Bachman is a litigator ready to fight for you to obtain the relief that you deserve.
Bachman writes frequently on employment discrimination issues at the Glass Ceiling Discrimination Blog and has been quoted in national media about discrimination cases. U.S. News and Best Lawyers® have named Zuckerman Law a Tier 1 firm in Litigation – Labor and Employment in the Washington DC metropolitan area. Contact us today to find out how we can help you. To schedule a preliminary consultation, click here or call us at (202) 769-1681.
