Misclassification and Antidiscrimination: An Empirical Analysis

57 Pages Posted: 27 Apr 2016 Last revised: 20 Apr 2017

See all articles by Charlotte Alexander

Charlotte Alexander

Georgia State University – Institute for Insight; Georgia State University College of Law

Date Written: 2017

Abstract

This article investigates misclassification and antidiscrimination. Misclassification is employers' practice of classifying workers as independent contractors whom the law would categorize as employees. Misclassified workers are exempt from most federal antidiscrimination statutes, unless they file a discrimination lawsuit and seek reclassification by the court for purposes of the litigation. Thus, employers may use their power to classify to write workers out of the law, and workers who cannot win a misclassification challenge cannot gain access to antidiscrimination rights. Little is known about which workers are misclassified, however, or about the outcomes of misclassification challenges in court. Drawing on existing and newly collected data, including ten years of misclassification decisions in cases brought under Title VII of the Civil Rights Act of 1964,this article shows that women and people of color are overrepresented in the occupations at highest risk for misclassification. The article also raises questions about courts' role in checking employers' power to classify, as many of the workers who are most at risk for misclassification and discrimination do not appear to be filing suit, and many courts' handling of misclassification challenges is deeply flawed.

Keywords: workers, employment, employee classification, independent contractors, discrimination, workforce, employment law

JEL Classification: J00, J23, J29, J31, J38, J70, J71, J78, K00, K31, M12, M50, M51, M59

Suggested Citation

Alexander, Charlotte, Misclassification and Antidiscrimination: An Empirical Analysis (2017). Minnesota Law Review, v. 101, 2017, Georgia State University College of Law, Legal Studies Research Paper No. 2017-02, Available at SSRN: https://ssrn.com/abstract=2757822

Charlotte Alexander (Contact Author)

Georgia State University – Institute for Insight ( email )

Tower Place 200, Third Floor
3348 Peachtree Road NE
Atlanta, GA 30326
United States

Georgia State University College of Law ( email )

P.O. Box 4037
Atlanta, GA 30302-4037
United States

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