Old Boundaries, New Horizons: How Anti-Discrimination Law Can Better Protect Black Gig Workers in the Time of COVID-19

Christy England
The Employee Rights Advocacy Institute for Law & Policy

Abstract

Legal scholarship surrounding the gig economy largely focuses on the detrimental impact of misclassification. A growing body of social science scholarship is also examining the racial inequality at the core of the gig economy. By incorporating this social science scholarship into legal scholarship, we can gain a more robust view of the ways in which the law currently fails Black gig workers, and how it could be utilized to combat racial inequality more effectively. A central aim of this paper is to conceptualize gig work not only as a workers’ justice issue, but also, crucially, as a racial justice issue.

Introduction

            The gig economy continues to garner attention in legal scholarship, social science research, and public discourse in general. The COVID-19 pandemic has also shed light on the plight of gig workers in general, and Black gig workers in particular. Gig workers are disproportionately Black and Latinx, especially in jobs with lower wages, fewer protections, and greater instability and risk. Legal scholarship surrounding the gig economy largely focuses on the detrimental impact of misclassification—the phenomenon in which companies classify their workers as independent contractors rather than employees, depriving them of the legal protections and rights that employees are entitled to. At the same time, a growing body of social science scholarship is examining the racial inequality at the core of the gig economy. By incorporating this social science scholarship into legal scholarship, we can gain a more robust view of the ways in which the law currently fails Black gig workers, and how it could be utilized to combat racial inequality more effectively.

            This paper will analyze racial inequality in the gig economy, the impact of the COVID-19 pandemic on gig workers, and how both factors uniquely harm Black gig workers. This paper aims to expand the horizons of current legal scholarship by evaluating antidiscrimination law and assessing whether it can adequately combat both racial inequality in the gig economy and the troubling trends exacerbated by the COVID-19 pandemic. A central aim of this paper is to shift the conversation surrounding gig work so that it will not only be conceptualized as a workers’ justice issue, but also, crucially, as a racial justice issue.

            Part I will provide definitions of gig work and gig workers. Part II will articulate why the classification of gig workers is a racial justice issue. Part III will place this struggle in the historical context of the exploitation of Black labor to fuel economic growth and transition in American capitalism. Part IV will outline some of the experiences of Black gig workers across different forms of gig work—namely temporary work, domestic care work, and online platform work. Part V will assess whether employee classification and antidiscrimination law can address the discrimination Black gig workers face and point out shortcomings in these legal doctrines. It will also imagine doctrinal changes to the law to better address systemic racial inequality.

I.         Definitions of Gig Work

            In popular discourse on the gig economy, online platform workers and rideshare drivers are often the center of the conversation. However, gig work also includes other precarious arrangements, such as temporary, contract, on-call, and freelance work. (Gallup 2018) This paper will use the definitions below when discussing these forms of precarious work:

  • Online platform workers: Workers who find short-term jobs through a mobile or online marketplace that connects them directly with customers, either in-person or online.
  • Temporary workers: Workers who have short-term work arrangements, often assigned to them by a temporary agency or staffing agency.
  • On-call workers: Workers who only work on an as-needed basis, not including workers who work on-call shifts as part of their regular job.

These precarious work arrangements encompass a broad array of tasks, including domestic care work, disaster relief, construction, retail and customer service, to name a few. Other definitions of gig work center around the nature of the work itself. For instance, some define gig work to include flexible scheduling, and a lack of oversight and/or direct supervision. (Gallup 2018) Commonly, these definitions overlap in studies of gig workers. For the purposes of this paper, the most important takeaway is that gig work does not only include online platform work, but also a variety of other precarious arrangements, including freelance and on-call work, self-employment, and work with temp agencies and contractors. Most of these workers are legally classified as independent contractors. (Stanford 2017)

            The racial composition of the gig economy is similar to the composition in the traditional workforce. (Gig Economy Data Hub n.d.) However, when analyzing the different typesof gig work, racial inequalities become apparent. Not all gig work is created equal. Some jobs are lower paid, less stable, less flexible, and more unsafe than others. Freelancers often enjoy both flexibility and competitive wages, while contingent gig workers (on-call, contract, online platform, and temp workers) are treated more like employees without the benefits, pay and stability that come with employee classification. (Gallup 2018) These workers are more likely to be Black or Latinx, while freelancers and consultants are more likely to be white. (Gig Economy Data Hub n.d.) Contingent gig work is lower paid, less stable, less flexible, and more unsafe than the latter. (Mehta 2017) Moreover, white workers are more likely to use gig work as a supplementary income, while Black workers are more likely to rely on gig work as their sole source of income. (Smith 2016, 4) Workers engaging in gig work for supplementary income usually have primary jobs with better wages, more stability, benefits, and protections, while workers relying on precarious work as a sole source of income experience the opposite: lower total income, unstable wages, and no benefits or protections. (Smith 2016, 4) In order to understand why, a discussion of employee classification is necessary.

II.        Employee Classification As A Racial Justice Issue

            Most federal laws that protect workers specify that they are only applicable to workers classified as “employees.” Employees have a legal right to overtime pay, rest and meal breaks, minimum wage, workers’ compensation, unemployment benefits, family and medical leave, Social Security, disability insurance, retirement plans, healthcare, protection from discrimination and retaliation, reasonable accommodations for disabilities, and workplace health and safety protections. (Pinsof 2016, 341) Courts and regulatory agencies have determined that these laws are not applicable to independent contractors because they are not employees. (Pinsof 2016, 341) In other words, independent contractors do not have an economic safety net if they become sick, injured, or laid off. They also do not have legal recourse if they face wage theft, discrimination, and other abuses. Additionally, there is no uniform federal standard defining either employee or independent contractor, which permits employers to classify their workers as they wish. The burden then shifts to workers to challenge their misclassification by filing a lawsuit. It is unsurprising that so many employers misclassify their workers given that it allows them to evade the costs and liabilities that come with employee protections.

            Because Black workers are overrepresented in gig work, with most relying on gig work as a sole source of income, employee classification exacerbates the racial inequalities inherent in this work. Black workers are disproportionately subjected to precarious work, lower wages, and greater risk, all while being deprived of basic workers’ rights, protections, and access to social insurance programs. Employee classification, then, is not only a workers’ justice issue—it is a racial justice issue. Many racial justice advocates have discussed the importance of eliminating the wealth gap between Black and white populations in the U.S. Advocates recognize many causes of this wealth gap, and access to high-earning jobs is one of them. (Roberts and Weller 2021) However, this problem is often framed solely as one of discrimination and constraint: “Black workers often face labor market discrimination, including being steered toward occupations that are less secure, lower paying, and have fewer benefits and career advancement opportunities.” (Roberts and Weller 2021) The analysis, therefore, will focus on access to good jobs being the problem—and not the existence of “bad” jobs. While it is true that Black workers should be provided with more opportunities for careers, it is also an essential task in the struggle for racial justice that there are no “bad” jobs to begin with—in other words, that all jobs are safe, stable, and provide a living wage and economic safety net.

            Racial justice advocates have also recognized the impact of unequal access to healthcare. The COVID-19 pandemic has made this disparity even more clear, as well as the tragic toll of this inequity. While there are many structural factors that contribute to the lack of access to quality healthcare (or any healthcare at all) for Black Americans, the classification of gig workers must be part of that conversation. Only 40% of gig workers have access to health insurance, and most workers receive coverage through a spouse or other family member. (Gallup 2018) Ensuring that gig workers have access to health insurance is essential to tackling the disparity of health outcomes for Black Americans.

III.      Racial Capitalism and Gig Work: A Historical Analysis

            Examining the history of capitalism and the exploitation of Black labor also elucidates why gig work is a racial justice issue, and how it fits into a larger historical struggle for racial equality. The exploitation of Black labor and Black bodies to serve capitalism has always been a racial justice issue, and the gig economy is the modern manifestation of this form of systemic racism. Many scholars have pointed out that industrialization in America was made possible by a “racial capitalism”—through both the violence of slave labor and the exploitation of labor performed by Black people, immigrants, and other people of color. (Roithmayr 2018; Robinson 2005; Johnson 2017; Beckert 2015) Slave labor in the South made the bulk production of cotton possible and profitable, which facilitated industrialization more broadly. (Beckert 2015) In the North, employers exploited Black workers by forcing them to labor in factories for low wages and poor working conditions to further facilitate the transition of the industrial economy. (Beckert 2015) In this way, exploitation of Black labor made the transition to the modern industrial economy possible. Exploitation of Black labor is again facilitating the transition to a new economy, dubbed the gig economy. (Roithmayr 2018) This new “on-demand” economy incentivizes companies to utilize a “just in time” workforce that is cheap, fungible, and carries none of the rights and responsibilities that stem from a traditional employer-employee relationship. (Van Doorn 2017) Although the details and machinations of the gig economy may be novel, the reliance on exploiting Black labor remains the same.

            This system of exploitation relies on populations of workers who are unable to secure stable employment, and thus have no other option but to accept low-wage, unstable, and often dangerous work. This population—given the perverse title “motivated workers”—is disproportionately comprised of Black workers. (Roithmayr 2018) That these workers have no option but to accept precarious work is itself a product of systemic racism: Black people have fewer opportunities to obtain the educational credentials that are now prerequisite for stable work and face discrimination in hiring and retention. (Hexel et al. 2017) Black people are also targeted by the criminal justice system, which hurts their long-term career prospects and forces them into precarious work. (Zatz 2019) Large American companies are less racially integrated today than they were in the 1970s, which further demonstrates the exclusion of Black workers from stable and high wage-earning career options. (Gerdeman 2018)

            Although Black workers have historically been pushed into low-wage precarious work due to barriers erected by systemic racism, the problem is also reverse causal: the American economy devalues labor performed by Black people, as a form of what is known as “occupational segregation.” (Spriggs and Von Lockette 2016) Wage data demonstrates that when Black workers are overrepresented in a profession, the average wage in that profession decreases. (Spriggs and Von Lockette 2016) Politicians and economists will label this labor as “low-skill” to blame the individual worker for their plight rather than recognizing this devaluation as a product of systemic racism. (Lowrey 2021) The COVID-19 pandemic has made it abundantly clear that labor deemed “low-skill” is actually essential to the functioning of American society, but that recognition has not translated to higher wages and stability for Black workers.

            Domestic care work also reflects the legacy of slavery, racism, and unpaid domestic labor performed by Black women. The history of domestic work in America begins with enslaved and indentured women in colonial America, and continued even after slavery, as affluent white women relied on Black women to offload their domestic labor so they could participate more in public life. (Mateescu, Rosenblat, and Ticona 2018, 17) This trend continues today, as domestic care work is performed disproportionately by Black women and immigrant women. (Mateescu and Ticona 2018, 17) Domestic care work in the gig economy is still undervalued and leaves Black women vulnerable to abuse and exploitation. As Professor Julia Ticona states: “Care work platforms have inherited the deeply entrenched inequalities and historical struggle for recognition that have long defined domestic work.” (17) Even beyond domestic care work, gig work has inherited the deeply entrenched racism that has always fueled the American economy. Niels van Doorn sums up the point succinctly: “In the world of [precarious] platform labor, inequality is a feature rather than a bug. Platform labor remains thoroughly embedded in a world created by the capitalist value form, which hinges on the gendered and racialized subordination of low-income workers, the unemployed, and the unemployable.” (Van Doorn 2017)

IV.       Black Gig Workers’ Experiences Across Different Types Of Gig Work

            Thus far, this paper has focused on the ways in which the gig economy is inherently exploitative of Black labor, exacerbates racial inequality, and inherits these violent legacies from slavery and segregation. However, this paper has not yet grappled with the racism Black workers face in specific forms of gig work. These experiences are varied; Black gig workers are not a monolith, and there are many diverse types of gig work. This paper will outline a small sample of some of the experiences of Black workers in different types of gig work— namely, temporary agency work, domestic care work, and online platform labor. After outlining these experiences, Section V will then discuss whether the law can reach and remedy any of these forms of discrimination.

A. Temporary Agency Work

            Racism is endemic in temporary agencies, which is the primary means of job placement for temp workers. Host companies pay temp agencies to provide them with workers, and detail what kind of workers they want. In a particularly egregious form of discrimination, host companies will use coded or even explicit language to request the race of workers they want to hire and specify those they will not hire. (Evans 2016) Investigative reporting and interviews of temp agency staff have revealed that Black workers are hit hardest by this racism: host companies will more often request White or Latinx workers and specify that they do not want to hire Black workers. (Evans 2016; Sweeney 2011; Rachelle 2016) This practice not only means Black workers are turned away from jobs, it also ensures that when they are placed, it is often in positions that are less desirable, lower-paid, and higher risk.

             Tim, who applied for jobs with a temp agency in Tennessee, experienced this racism firsthand. Notably, he was one of the few applicants who actually learned he was never assigned work because he was Black—most applicants who are excluded on the basis of race have no way of knowing it. (Evans 2016) In his own words, Tim said he was “crushed” when he never got a call back. A former recruiter from the agency revealed to Tim that he was rejected because he was Black. “It’s very shocking, because you would think those days are over with,” Tim said. “When they toss them résumés, they toss a whole lot of families out. It just don’t hurt that person, it hurts the people who are connected with them.” (Evans 2016)

            Even absent explicit racist requests from host companies, temp agencies participate in racial discrimination against Black workers in a variety of ways. Temp agencies will interpret subjective criteria given by host companies as requests for white workers, when they use terms such as “good communication skills” and “clean-cut.” (Sweeney 2011, 68) Temp agencies also attempt to paternalistically match workers and host companies by race, based on the assumption that temp workers of the same race will “fit” better in a host company with employees of that same race. (Sweeney 2011, 66) Temp agency staff also justify their exclusion of Black applicants based on their own subjective and racially contingent criteria, such as assessments based on clothing, grammar, and perceived openness in answering interview questions. (Evans 2016) In fact, the EEOC has acknowledged these systemic problems in the temp agency industry: “Staffing agencies are refusing to place African American employees based on their race and they are terminating employees when they complain about that, as well as limiting assignments that individuals may have.” (Evans 2016)

            Even when workers can overcome racial discrimination in the temp industry and are eventually placed, they are ultimately still exploited and disadvantaged relative to permanent employees. For one, temporary positions entail significant wage and benefits penalties relative to permanent employees. Full-time temp workers earn 41% less than permanent, direct-hire workers doing the same tasks. (NELP 2018) Over 50% of workers in standard work arrangements receive an employer-sponsored healthcare benefit, while only 13% of temp workers do. (NELP 2018) 46% of workers in standard arrangements are covered by employer-provided pension plans, while only 6% of temp workers are. (NELP 2018) Temp workers also face higher rates of wage theft than permanent employees. (NELP 2018)

            Temporary agency work has been shifting from clerical work to much more dangerous and lower-paid jobs in production and transportation. (NELP 2018) Data shows that temp workers are more likely to be injured on the job due to dangerous work assignments and inadequate training and supervision. (NELP 2018) Host companies are incentivized to task temp workers with more dangerous work because they do not have to pay medical costs or workers’ compensation to temp workers injured on the job. Temp workers are also not protected from retaliation when reporting unsafe working conditions. (NELP 2018)

B.  Domestic Care Work And Online Marketplace Platforms

            Online marketplace platforms are platforms where work is scheduled, and the platform acts as an intermediary in matching clients with workers. The selection of the worker, however, is left up to the customer. The customer makes their decision based on information about the worker, usually displayed as an online profile. Domestic care work platforms are an example of online marketplace platforms and typifies the racism that pervades this form of gig work. Care workers using these platforms are told to include information and tell a compelling narrative in their profile in order to “stand out.” (Mateescu, Rosenblat, and Ticona 2018, 24) Potential clients also see a photo of the care worker. Workers are encouraged to “market themselves” to gain more clients and charge higher rates. (Mateescu, Rosenblat, and Ticona 2018, 24)

            However, requiring these skills exacerbates intersectional inequalities. Text-based marketing and digital fluency is more challenging for non-native English speakers, as well as immigrant caregivers who come from a different cultural background. (Mateescu, Rosenblat, and Ticona 2018, 25) In interviewing caregivers on the Care.com platform, Denise, a West African immigrant, struggled to find work, and guessed it was because her English language skills made it difficult to “market” herself to prospective clients. (Mateescu, Rosenblat, and Ticona 2018, 27) Moreover, clients base their decisions for hiring caregivers based on “cultural matching” and perceived “fit”—which is often based on racial stereotypes and explicit and implicit biases. (Mateescu, Rosenblat, and Ticona 2018, 25) The material consequences of this bias are borne out in data: white U.S.-born caregivers have access to higher-paying jobs and more placements than Black caregivers on the platform. (Mateescu, Rosenblat, and Ticona 2018, 25)

            Marketplace platforms also employ proprietary algorithms to determine which profiles are promoted and listed at the top of a search query results. These criteria are not neutral or free from racial bias. For instance, Care.com promotes caregivers who respond more quickly to messages, but fast response time is dependent on having access to high-speed internet and devices that make such communication possible, as well as digital literacy. (Mateescu, Rosenblat, and Ticona 2018, 25) Caregivers who have more placements will also be promoted to the top of the list, but this criterion will reproduce racial exclusion because, as discussed previously, white U.S.-born caregivers tend to have more placements.

            Even the criteria care platforms use to evaluate profiles can be racially biased. For example, Laquinta talked about her frustrating experience trying to get her profile picture approved so she could even apply for jobs on the Care.com platform. (Mateescu and Ticona 2021, 72) Care.com rejected several of her profile pictures. When she finally uploaded a picture where her hair was straightened instead of curly, the photo was approved. This is part of a racist legacy in America in which Black women are discriminated against based on their hair texture, particularly in professional contexts. (Rosette and Dumas 2007)  

            There are also supposedly neutral policies that care work platforms implement that have racist implications. For instance, Handy requires cleaners to wait outside for at least 30 minutes before they can be paid for a cancellation. Takarah, who receives work from Handy, explained that this policy forces her to choose between her safety and her income: “I’ve been in situations where I went to the person’s house, text, called, rung the bell . . . nobody responded. It’s very stressful . . . It’s uncomfortable because I am black and I do be in a lot of rich areas and I stand out, so I don’t like to be in that situation . . . I do tell Handy like ‘Listen, I don’t feel comfortable staying in this area’ . . . and I will leave. Sometimes I don’t get paid for that and I don’t think that is fair.” (Mateescu, Rosenblat, and Ticona 2018, 40)  

C.  Algorithmic Management Of Online Platform Workers

            Algorithmic management refers to management that is dictated by semi-automatic or algorithmic systems, rather than a human supervisor. (Mateescu, Rosenblat, and Ticona 2018, 42) Many gig companies use algorithmic management, and typically utilize customers ratings systems to do so. Customer rating scores can determine the number of referrals a worker receives, whether their profile is promoted by the platform, or even whether they are terminated from a position. Unsurprisingly, customer satisfaction ratings and tipping behavior reflect the racial biases against Black people that exist in broader American culture. (Garcia et al. 2017; Wang 2016; Ayres et al. 2005, 1616) There is no reason to believe that these biases do not also exist in customer ratings on online platforms.

            Rideshare drivers on platforms like Uber and Lyft are terminated and removed from the platform when their ratings fall below a particular number. Drivers who were interviewed talked about the anxiety they felt about making mistakes that customers would penalize them for, as well as the pressure to appease customers by acting “friendly, non-threatening and subservient.” (Dzieza 2015) Overall, when online platforms make employment decisions based on customer ratings, they are reproducing racial bias and inequality. This makes precarious work for Black workers even more precarious, because lower ratings can result in termination. It also lowers their overall income, both through lower tips and fewer service requests.

V.        Assessing Current Legal Doctrine

            Thus far, this paper has discussed the ways in which the gig economy exploits and abuses Black workers. It extracts labor from Black workers with few or no alternatives, undervalues and underpays them for that labor, all while stripping them of workers’ rights, protections, and social insurance benefits. This exploitation not only harms individual Black workers, it also ensures that racial disparities in wealth and health outcomes will continue to widen. It suffices to say that the history of racism in America is indicative of the failure of the law to counteract and remedy racial inequality. This section will evaluate the shortcomings of the law in the areas of employee classification and antidiscrimination law and imagine how these legal regimes could more effectively reach racial discrimination in the gig economy.

A.        Employee Classification Law

            New Deal legislation and workers’ rights protections specify that they only apply to employees. Some examples include the Fair Labor Standards Act (FLSA)[1], which establishes wage theft protections and a federal minimum wage, and the National Labor Relations Act (NLRA)[2], which protects the right to unionize. Independent contractors were not originally excluded from coverage, but employers still attempted to use the ambiguity in the statute to define “employee” as narrowly as possible. (Dubal 2017, 84) To accomplish this task, employers turned to agency law.

            Agency law concerns whether the tortious actions of a worker confer liability on their employer. The analysis includes a multifactor test to determine if the employer and worker have a “master-servant” relationship. One of the primary factors in this test is the degree of control the employer exercises over their workers. (Dubal 2017, 74) The logic is as follows: if the employer sufficiently controls a worker, then that workers’ actions were caused by the employer, and thus the employer should be liable for the tortious actions of that worker. Congress did not discuss tort or agency law in the text of New Deal workers’ rights statutes, nor did it arise during the debate around their passage (Dubal 2017, 85). This makes sense, because the question of whether tort liability attaches to an employer has nothing to do with whether workers should be protected by labor regulations. In fact, the Supreme Court was presented with this very issue in NLRB v. Hearst Publications, and held that the definition of employee encompassed “a wider field than the narrow technical legal relation of ‘master and servant,’ as [in agency law].”[3]

            In 1947, just three years after the decision in Hearst, the 80th Congress sought to undo New Deal protections, and did so in part by excluding independent contractors, farm laborers, and domestic workers from the definition of employee for the NLRA. (Dubal 2017, 86) It is also no accident that excluding farm laborers and domestic workers meant that a disproportionate number of Black workers were automatically excluded from NLRA protections. By the 1970s, court decisions cemented that employers could restructure their businesses to classify their employees as independent contractors in order to avoid liabilities under workers’ rights statutes, and that these classifications would be evaluated through the lens of agency law. (Dubal 2017, 87) This became the common law “control test,” which examines the employers’ control over the means and manner of a workers’ job performance. The more control exerted by the alleged employer, the more likely the worker should be classified as an employee.

            This test has four main problems. First, the subjective nature of the analysis creates inconsistent and unpredictable results. (Linder 1999; Dubal 2017, 74) Second, as the Supreme Court pointed out in Hearst, the question of whether an employer controls the means and manner of a workers’ job performance does not rationally relate to whether they ought to be protected from abuse by the employer. As Professor Marc Linder put succinctly: “As long as employers control the working conditions that workers want improved, why should it matter whether they tell them how to work?” (201) The control test also means that courts usually do not reach the issue of employer abuse. Rather than adjudicating the substance of workers’ rights violations, courts have instead become mired in analyzing arcane distinctions and the minutiae of workers’ tasks and supervision. (Linder 1999, 201)

            Third, the current employee classification regime puts the onus on workers to file lawsuits to catch abuses and vindicate their rights—in other words, it puts the onus on the party with fewer resources to undergo expensive litigation. Litigation also only creates piecemeal solutions—even if one company loses a misclassification suit, most companies will not adhere to that precedent unless they are also threatened with litigation. Finally, the current law is easily manipulable by employers—they can restructure their workforce to have less supervision over the means and manner of a workers’ individual tasks, yet still treat them as employees in every other respect. (Zatz 2011) This is precisely the status quo we inhabit now. Even after companies lose misclassification suits, they restructure their businesses and continue to classify their workers as independent contractors—even though the material conditions for the workers have not changed.

            As if the control test was not bad enough, there are two other tests for determining employee status: the ABC test[4] and the Economic Realities Test.[5] These tests can be applied differently in each jurisdiction based on caselaw, and different standards apply to different statutes. (Dubal 2017, 74) For example, a worker may be legally classified as an employee under workers’ compensation law but as an independent contractor for protected collective bargaining under the NLRA. In other words, the state of employee classification law is piecemeal, inconsistent, confusing, and completely untethered from the original purpose of the labor protections it gatekeeps.

            Many reformers simply advocate a uniform classification standard. However, any legal regime that conditions workers’ rights on employment classification would still be problematic. First, employers will find ways to restructure their businesses around a new classification test. Second, this regime would still place the onus on workers to wage protracted and expensive litigation to prove they were employees. Our current legal regime makes clear that placing this burden on workers enables and permits widespread misclassification, exploitation, and abuse. Third, any regime that conditions workers’ rights on employment classification cedes ground that it should not and need not. Why should workers’ rights be limited by classification at all, even if that classification standard is uniform? Why can’t the law mandate that all workers receive rights and protections, regardless of their legal status?   

            Finally, the independent contractor/employee dichotomy fails to accommodate gig workers’ goals or reflect how they define themselves. Given the constraints of this legal framework, many workers’ rights advocates accept the dichotomy, they just believe more workers should be classified as employees. However, there are many gig workers who do not want to be classified as employees, even if they want rights and protections. (Dubal 2017, 113) An ethnographic examination of San Francisco taxi drivers’ experiences and conceptions of their legal identity is instructive in this context. Professor V.B. Dubal found that white, nonimmigrant drivers aligned employee status with better working conditions, and a return to the dignity they had when they were classified as employees in the past. (112) Immigrant drivers and drivers of color, on the other hand, were skeptical that employee status would improve the racist abuse they endured at the hands of customers, management, and the police. (113) In fact, many drivers expressed not wanting to be classified as employees because they believed that it would grant management even more control over them—a managerial staff that insulted, demeaned, and discriminated against them. (113) Drivers interviewed described how management forced them to take poor shifts, wait longer for their cabs, and drive broken-down cars. (113) Additionally, they valued their independent contractor status because of the physical freedom it allowed, and the promise of dignity and social mobility engendered by the “entrepreneur” identity.” (110)

            From this vantage point, the best solution would be to upend the entire employee classification framework. Workers’ rights should be universal, and not conditioned on employee status. Specifically, workers’ compensation, disability and unemployment insurance could be treated as “socialized insurance” programs that would not require employer participation, similar to Social Security. (Linder 1999, 223) Antidiscrimination protections can and should extend to all workers, and all workers should receive a minimum wage for the hours they do work. Access to healthcare should also be available to all, regardless of employee status. The advantages to implementing a universal rights framework are self-evident, particularly with respect to moving towards greater racial equality. Rights would be provided to all Black Americans, regardless of their employment status. This would help decrease racial inequity in rights, protections, social insurance, and health insurance. It would also protect all workers from racial discrimination., including gig workers. Finally, it would allow Black workers to maintain freedom, flexibility, and the dignity of an entrepreneurial identity without sacrificing the rights and protections they deserve.

B.        Temporary Work: A Unique Challenge In Employee Classification Law

            Temporary work presents a unique legal challenge that does not necessarily stem from misclassification—some temporary workers are classified as employees for the temporary agency that employs them, but not for the host company. While a universal rights regime would help temp workers, it would not completely redress the unique vulnerabilities that stem from the way liability functions in the temp industry. Currently, the host company does not have liability under workers’ rights statutes—the temp agency does. This bifurcation is problematic because the host company controls the working conditions but has no incentive to provide safe or equitable workplaces because they are not liable for violations. For example, the host company has no incentive to make conditions safe because they do not have to pay workers’ compensation or medical costs if the temporary worker is injured on the job.

            Clearly, then, this bifurcation of liability in the law must end. Both host companies and temp agencies should be jointly liable for labor law violations. Additionally, temporary employees should be provided with all the same rights and protections that permanent employees enjoy. Other countries have implemented a host of other essential reforms for temporary workers, including laws that ensure wage and benefits parity between temporary and permanent employees, limitations on the share of the workforce that can be temporary, and prohibitions on temporary work in dangerous industries and high-risk tasks. (NELP 2018)

            While these reforms attempt to make temporary work more stable, safe, and fairly compensated, there are discriminatory barriers for placement discussed earlier in the paper. The current structure of the industry makes it difficult for workers to know they are being discriminated against or prevail in court. The screening and referral practices are not known to the applicant. (Evans 2016) Workers are not given reasons for not being placed and they do not know what jobs are available or the requested qualifications. (Evans 2016) Because the host company and the temp agency are intertwined, it can also be difficult for a worker to know who to file a claim against. (Evans 2016) Clearly, greater transparency is essential. One possible solution is to require temporary agencies to record each temporary worker and assignment in detail— including the worksite to which each temporary worker is assigned, the temporary worker’s race and gender, the dates of assignment, the type of work performed, the hourly rate of pay, and any specific qualifications or attributes of temporary workers requested by a client. Workers should have access to this information. An independent government agency should also be allowed to inspect these records and aggregate the demographic data. (Evans 2016)

C.        Antidiscrimination Law: Racially Biased Customer Ratings

            This papers’ assessment of antidiscrimination law will use algorithmic management as an entry point of analysis. It will analyze whether gig workers have a viable claim of racial discrimination when an employer takes adverse actions based on racially biased customer feedback. There has not been a court case analyzing this question. However, this example helps illustrate the shortcomings in antidiscrimination law and elucidate potential doctrinal reforms. Algorithmic management is not the only form of racial discrimination in the gig economy—indeed, it is not even the only form of discrimination discussed in this paper. The final section of this paper will assess whether employee classification and antidiscrimination law can reach other forms of inequality in the gig economy, beyond discriminatory customer ratings.

            1. § 1981 Claims and The Intent Requirement

            The most robust remedy for racial discrimination in employment, Title VII[6], is only applicable to employees, and thus not available to the vast majority of gig workers who are classified as independent contractors. (Dubal 2017, 110) However, another civil rights statute, 42 U.S. Code § 1981, is not limited to employees—in fact, it applies to “all persons within the jurisdiction of the United States.”[7] Because § 1981 deals with discrimination in contracts, it also extends to employment contracts, and prohibits employment discrimination.[8] Even if gig workers do not sign a standard employment contract, they are certainly in some kind of contractual relationship with their employers. Unfortunately, to prevail on a § 1981 claim, a plaintiff must demonstrate that the defendant intended to discriminate on the basis of race.[9] The discrimination Black gig workers experience does not neatly fit that framework—there is not, for instance, a supervisor acting out of racial animus. In the case of racially biased customer ratings, gig employers would argue they implemented “neutral” policies with the intention to better serve customers, with no intention to racially discriminate. Additionally, it is difficult to demonstrate intent when gig workers do not interact face to face with the companies that employ them and do not have dedicated supervisors.

            This intent requirement is predicated on a legal doctrine called the antidiscrimination principle: a contention that discrimination occurs when individual perpetrators make decisions motivated by race with an intention to produce discriminatory results. (Freeman 1978, 1054) This legal framework fails to remedy systemic racial inequality and should be rejected. It is indifferent to the material conditions people of color experience and whether neutral policies reproduce racial inequality. It ignores structural inequalities that are not traceable to individual perpetrators acting with ill intent. Even worse, it prohibits race-conscious remedies to systemic racism, like affirmative action. Under the antidiscrimination principle, such remedies are impermissible because they are “motivated by race” and thus, according to the law, motivated by discriminatory intent, usually against white people. [10]  

            There is room to argue that intent should not be required for § 1981 claims. The legislative record, historical context, and the text of the statute itself demonstrate that Congress did not consider intent to be a required element of a § 1981 claim. (Manishin 1980, 141) Similarly, there is room to argue that the most accurate reading of § 1981 and its purpose would permit plaintiffs to utilize the disparate impact claims currently only available under Title VII. (Manishin 1980, 141) Black gig workers raising disparate impact claims would only need to show that a company practice disproportionately affected Black workers; a showing of discriminatory intent is not required.[11] Permitting disparate impact claims under § 1981 also makes common sense— given that both laws are meant to address racial discrimination, it is irrational and arbitrary to suggest that the exact same conduct that constitutes racial discrimination under Title VII is somehow not discrimination under § 1981. However, it must be noted that even prevailing on a disparate impact claim would be difficult, given current caselaw. Plaintiffs have a daunting statistical burden and would have to overcome an employers’ “business necessity defense” contending that customer satisfaction is necessary for the survival of their business. (Wang 2016, 286)

            However, current law is unambiguous that disparate impact claims are not available under § 1981[12], and courts would be reluctant to overturn this settled precedent. But gig workers may still have a claim under § 1981 by utilizing systemic disparate treatment theory. Systemic disparate treatment claims arise when formal or informal company practices treat workers differently based on their membership in a protected category.[13] In formal doctrine, the difference between systemic disparate treatment and disparate impact claims is intent—the former requires intentional discrimination, and the latter does not. But in practice, this distinction can be quite murky. In the Manhart case that established the systemic disparate treatment doctrine, the Supreme Court barred employers from charging women higher pension contributions based on the correct statistical assessment that they would likely live longer than men.[14] In the Arizona Governing Committee decision, an employer credited retirees the same lump sum regardless of their sex, but then directed them to convert the sum into an annuity through an outside vendor that offered smaller payments to women.[15] The Supreme Court held that both cases constituted impermissible discrimination on the basis of sex.

            In both cases, it is difficult to argue that the employer acted with discriminatory intent. In Manhart, the employer charged women higher pension contributions not because they were women, but because it correctly assessed that they would live longer. In Arizona Governing Committee, the employer was not intending to treat women differently, nor did it treat them differently at all—a third party vendor did. It is also difficult to separate these cases from disparate impact claims, because they both appear to be facially neutral policies that have a disproportionately negative impact on women—the exact definition of disparate impact claims.             Gig workers may be able to utilize these precedents to prevail on a § 1981 claim, particularly because § 1981 claims and Title VII disparate treatment claims are analyzed in the same manner.[16] They could argue that these cases make clear that discrimination need not stem from racial animus, but instead occurs when workers are treated differently because of their race. They can argue that an employer utilizing biased customer feedback treats Black workers differently because of their race, either by ranking them lower in search results, disciplining, or terminating them.

            2.  Employer Liability For Customer Discrimination

            With respect to claims against gig employers’ use of discriminatory customer reviews, there is an additional hurdle: antidiscrimination law fails to reach direct discrimination by customers. For example, clients may refuse to hire a lawyer because she is Black, or tip Black restaurant servers less than white servers. (Bartlett and Gulatti 2016, 224) Antidiscrimination law frames these problems as “private acts” beyond the reach of state action.[17] Moreover, employment discrimination law mainly focuses on the power dynamic between the employee and employer, and discrimination by third parties is rarely actionable. Caselaw focuses on the actions and motivations of the ultimate “decisionmaker” responsible for decisions such a hiring, firing, and promotion (referred to as “tangible employment actions”). (Wang 2016, 287) This decisionmaker is usually a supervisor. If the decisionmaker makes decisions based on racial bias, liability for discrimination attaches to the employer.

            However, this rule does not account for the ways in which customers perform management functions by proxy—functions that used to be exclusively performed by supervisors, such as employee evaluations and discipline. This new phenomenon is aptly named “management by customers.” (Wang 2016, 289) Management by customers is especially salient in the gig economy, where online platform workers do not have a manager, and their employment outcomes are often based solely on customer ratings. As discussed in Part IV, customer ratings are racially biased, yet current law has not yet grappled with the ways in which discriminatory customer preferences shape the terms and conditions of employment, especially in the gig economy.

            Although narrow and novel, there may be areas of caselaw that plaintiffs could use to take action against employers who penalize workers based on discriminatory customer feedback. First, we turn to caselaw that holds that a supervisors’ delegation of decision-making power to other workers can be a basis for establishing vicarious liability—a doctrine known as the “cat’s paw” theory of liability. In Staub v. Proctor Hospital, the decisionmaker was unbiased, but he relied on the recommendations of another supervisor who evinced impermissible bias.[18] The Court held that employers are liable for discrimination if the ultimate decisionmaker’s unbiased investigation still “relies on facts provided by the biased supervisor,” because “the employer (either directly or through the ultimate decisionmaker) will have effectively delegated the factfinding portion of the investigation to the biased supervisor.” While Staub dealt solely with a biased supervisor, the Court has indicated that cat’s paw liability also extends to other subordinate employees and coworkers.[19]

            Plaintiffs may be able to argue that gig employers have delegated power to customers by relying solely on their recommendations to make tangible employment actions. Given that employers are liable for discrimination if decisionmakers rely on biased feedback from another employee, so too should they be liable if decisionmakers rely on biased feedback from customers. However, courts will likely be hesitant to chart such a bold new precedent. Cat’s paw theory is a narrow exception to the overwhelming body of caselaw that focuses on the employer-employee relationship, and it has never been extended to non-employees, let alone customers. As discussed above, customers enjoy particular freedom from liability for discrimination, which would make it especially difficult to upheave existing doctrine to extend this novel form of liability.

            However, there is one area in which employers are liable for the actions of customers: discriminatory harassment under Title VII. Caselaw has established that employers can be liable when third parties (including customers) harass their employees, the harassment stems from the employee’s membership in a protected category (such as race), the employer is aware of the harassment and yet fails to take reasonable steps to prevent or correct the problem. (Zatz 2009, 1359) This form of liability is analogous to our racist customer feedback scenario: customers provide lower evaluation scores based on race, the employer is aware that there is a correlation between race and low evaluation scores but fails to take reasonable steps to correct their algorithm or change their termination policy. Gig workers could thus expand antidiscrimination law to encompass third party discrimination beyond harassment.

            However, courts could interpret a new precedent regarding biased customer feedback so narrowly as to render it useless. Courts could hold there is only disparate treatment if the employer acted on customer feedback that the customer makes clear is based on racial bias. Customer feedback forms do not always ask customers for their reasoning, and even when they do customers rarely recognize their own implicit bias. Even customers motivated by explicit racial bias will likely not say so directly, because they are aware that such sentiments are not socially acceptable.

            Finally, gig workers could turn to precedents that deal with temp agencies. A temp agency is liable for racial discrimination if it terminates a worker based on the host client’s discriminatory preferences. (Zatz 2009, 1418) The agency is also liable if it “knew or should have known about the host client’s discrimination and failed to undertake prompt corrective measures within its control.” (Zatz 2009, 1418) This precedent establishes that employers can be liable for discrimination when they act in accordance with the discriminatory preferences of third parties (in this case, host clients). It may not be a stretch to argue that the same should apply to employers who act on the discriminatory preferences of customers—after all, both are third parties, and host clients are ultimately temp agency customers. This temp agency precedent could expand the third-party harassment doctrine described above by making employers liable not only to correct third party harassment it knows or should have known about, but also discriminatory treatment.

            Ultimately, employers should be liable for discrimination when their platforms provide a mechanism for translating customers’ racial biases into discriminatory employment and termination decisions. This liability would incentivize gig companies to proactively track racial bias in their ratings and implement methods to offset bias in their data and algorithms. Current antidiscrimination law is ill-equipped to this task, and doctrine around third-party and customer liability must change in order to keep pace with discriminatory “management by customers” in the gig economy.

D.        What Forms Of Racial Inequality Does The Law Fail To Reach?

            Biased customer feedback is only one form of racial discrimination and inequality in the gig economy, and even then, it is uncertain whether antidiscrimination doctrine is flexible enough to remedy it. The law might support holding employers accountable when they make decisions based on biased customer data. But when a discriminatory decision is made purely by the customer, the law fails to reach it, and frames it as a “private act” of discrimination outside the reach of state action. This means online marketplace customers are completely permitted to select workers based on race or perceived “cultural fit” (which often correlates with race).

            There are many other forms of racial inequality in the gig economy that current legal doctrine will certainly fail to reach. Antidiscrimination law does not address occupational segregation and the devaluation of Black labor in general. At best, antidiscrimination law could possibly reach unequal pay rates within particular job roles.But the valuation of Black labor writ large is considered a free market force outside the reach of the law. The start of this paper discussed how Black workers are disproportionately working in the gig economy, that it is their sole income, and they are overrepresented in precarious work that is underpaid and less safe. It discussed that many Black workers are forced to take these undesirable jobs because they are left with fewer career options due to systemic racism in employment, education, and criminal justice. Antidiscrimination law currently offers no remedy for this kind of systemic racism because it mainly focuses on the acts and intentions of individual perpetrators. However, a universal workers’ rights regime at least ensures that all jobs are well-paid and stable, and that all workers have healthcare and an economic safety net. While this reform would not completely eliminate Black wealth and healthcare disparities, it would be an important first step.

Conclusion

            Both history and the present make clear that the law is a blunt instrument at countering and remedying systemic racism. But although its reach is limited, there are still ways that it could intervene to counter discrimination, exploitation, and inequality in the gig economy. It would require doctrinal changes and upheavals, but would allow antidiscrimination laws to better effectuate their statutory purpose to remedy systemic racial inequality. COVID-19 has provided a new sense of urgency to this struggle, particularly in the context of essential workers, many of whom are also gig workers. It has also made it abundantly clear that issues facing Black gig workers—the struggle for fair pay, stability, healthcare, and a social safety net—are not just workers’ rights issues, but are also essential to the movement for racial justice and equality.

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[1] Fair Labor Standards Act, 29 U.S.C. § 203 (1938).

[2] National Labor Relations Act, 29 U.S.C. § 151–169 (1935).

[3] NLRB v. Hearst Publications, 322 U.S. 111, 122–24 (1944).

[4] The ABC Test is used primarily by state administrative bodies to determine eligibility for unemployment insurance. This test examines three factors: (1) whether the worker is free from direction or control, (2) whether the worker performs the work off the premises of the business, and (3) whether the worker is engaged in a “customarily” independent trade.

[5] The Economic Realities Test is used to determine eligibility for wage and hour and family leave protections. This multi-factor test considers control and additional factors that discern the worker’s economic dependence on the employer. The more economically dependent a worker is on his or her employer, the more likely it is that the worker is an employee.

[6] Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000(e) (1964).

[7]§ 1981 of the Civil Rights Act of 1866, 42 U.S.C § 1981 (1866). The text of the statute reads: All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.

[8] Georgia v. Rachel, 384 U.S. 780, 791 (1966).

[9] Gen. Bldg. Contractors Ass’n v. Pa., 458 U.S. 375, 390-91 (1982).

[10] There are alternatives to the antidiscrimination principle; the antisubordination principle is a prominent example. This principle is based on the idea that “law should reform institutions and practices that enforce the secondary social status of historically oppressed groups.” (Balkin and Siegel 2003, 9-10)

[11] Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(k) (1964). The disparate impact doctrine prohibits facially neutral practices with a disparate impact on members of a protected group.

[12] Gen. Bldg. Contractors Ass’n v. Pa., 458 U.S. 375, 390-91 (1982).

[13] City of Los Angeles Dept. of Water and Power v. Manhart, 435 US 702 (1978).

[14] City of Los Angeles Dept. of Water and Power v. Manhart, 435 US 702 (1978).

[15] Arizona Governing Committee v. Norris, 463 US 1073 (1983).

[16] Patterson v. McLean Credit Union, 491 U.S. 164, 186 (1989).

[17] Bd. of Dirs. of Rotary Int’l v. Rotary Club of Duarte, 481 U.S. 537, 546 (1987).

[18] Staub v. Proctor Hosp., 562 U.S. 411, 421 (2011).

[19] Vance v. Ball State Univ., 133 S.Ct. 2434, 2452 (2013).

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