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Misclassification and Antidiscrimination: An Empirical Analysis

By Charlotte S. Alexander. Full text here.

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 classification power 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’ classification power, as many of the workers who are most at risk for misclassification and discrimination do not appear to be filing suit, and some courts’ handling of misclassification challenges can be deeply flawed.