Discrimination Claims Can Proceed Based on Employee Status

​An editor-in-chief for a New York magazine owned by Cohen Media Group can go forward with her lawsuit claiming discrimination, harassment and retaliation, a federal district court recently ruled—after determining she was in fact an employee.

In July 2022, the New York City-based editor sued Cohen Media Group, alleging discrimination based on sex, age and religion in violation of the New York City Human Rights Law, the New York State Human Rights Law, Title VII of the Civil Rights Act of 1964, and the Age Discrimination in Employment Act. The lawsuit also claimed harassment, hostile work environment, retaliation and breach of contract.

The first step was for the court to decide whether to grant a motion to dismiss on the basis that the editor was not an employee with legal protections against discrimination.

The editor signed a consultant agreement with the company, but she claimed she should be considered an employee for legal purposes because she could not work for anyone other than Cohen Media Group, and the company monitored her work closely, required approval of her editorial plans, and required approval of any employees, contractors or vendors she sought to hire.

Cohen Media Group moved to dismiss the case, which the U.S. District Court for the Southern District of New York rejected. According to court documents, the company argued that the plaintiff didn't sufficiently show that the company exercised control over her work and daily activities,. It also claimed it fired the editor for performance issues related to only publishing two issues of the magazine over the course of a year. The company did not respond to a request for comment.

Employee vs. Independent Contractor

To determine whether someone qualifies as an employee, these factors should be considered, the court said:

• Whether the employer controls the manner and means by which the work is accomplished.
• Whether the employer has the right to assign additional projects to the worker.
• The extent of the worker's discretion over when and how long to work.
• The worker's role in hiring and paying assistants.
• Whether the work is part of the employer's regular business.
• The provision of employee benefits.
• The tax treatment of the worker.
• The skill required to do the work.
• The source of the instrumentalities and tools needed for the job.
• The location of the work.
• The duration of the relationship between the two parties.
• The method of payment.

In this case, most of those factors pointed in favor of the editor having employee status, the court said. The signed consultant agreement doesn't outweigh those factors.

Employers cannot depend on the fact that they have an independent contractor agreement to determine whether anti-discrimination laws apply. "An independent contractor agreement is never enough, on its own, to establish a person's independent contractor status. Such agreements are essentially worthless if the individual is nevertheless treated like an employee, rather than a truly independent actor," said Chris Duke, an attorney with Akerman in West Palm Beach, Fla.

"The major lesson is you cannot rely only on what your documents say at face value," said Meredith Kirshenbaum, an attorney with Goldberg Kohn in Chicago. "It will be one of many factors that a court would consider. Beyond just saying it, you have to act that way, also."

Federal agencies and courts look at the degree of control the employer maintains. "The less control the company exerts over the individual, the less likely that person will be deemed to be an employee and subject to traditional employment laws. This is a very factually specific inquiry," Duke said.

"In a true independent contractor relationship, the company exerts little, if any, day-to-day control over the operations and duties of the contractor. In such a case, legislatures at all levels have determined that a company should not be liable for workplace discrimination," he added.

Discrimination Claims

The editor, a single mother and a Mormon, was 53 years old when the events of the dispute took place. She was fired on March 9, 2020, but wasn't told why and wasn't put on a performance improvement plan.

Her salary was less than the salary of her successor, a younger man with less experience and no children, according to court documents. Her precursor and successor were hired as employees, not as independent contractors.

The editor claimed that Charles Cohen, CEO of Cohen Media Group, gave young, female workers preferential treatment and frequently made offensive remarks about women, older people and her Mormonism. She claimed that he required women to wear skirts and dresses, allowing men to look up women's skirts from the glass staircase in the offices, even after she complained about it.

To bring a hostile work environment claim under federal law, a plaintiff must show the conduct was objectively pervasive or severe, the court noted. However, under New York state law, the plaintiff doesn't need to prove that the conduct was severe or pervasive for it to be actionable.

The court ruled that the editor showed enough testimony to carry her age, sex and religious discrimination claims at the motion to dismiss phase, so the case can proceed to the trial phase.

To avoid discrimination and harassment lawsuits, employers should adhere to their nondiscrimination policies and ensure that workers have a way to report discrimination and harassment, Kirshenbaum said. "Offhanded, casual comments that might seem like sarcasm or a joke can still subject the company to liability when they're done in poor taste and on the basis of somebody's protected characteristics," she said.