Article appeared in The Daily Record, Oct 26, 2009
An African-American woman’s contract as a Craftmatic sales representative was terminated after she and the company’s hiring recruiter got into an argument in which he allegedly used racial slurs. She can proceed with a race discrimination claim under the Civil Rights Act of 1866 (42 U.S.C. 1981), the U.S. Court of Appeals for the Third Circuit ruled Sept. 11 (Brown v. J. Kaz Inc. 3d Cir., No. 08-2713, Sept. 11).
J. Kaz Inc., which does business under the name of Craftmatic, is a distributor of adjustable beds. In August 2006, Kimberly Brown participated in a threeday training session in Pittsburgh for Craftmatic’s prospective sales representatives. She was the only African-American among the three candidates.
Brown testified that Jay Morris, Craftmatic’s recruiting manager, said during the training that he knew she would be “a problem” and “a headache” because she asked a lot of questions. On the final day of training, Brown signed Craftmatic’s independent contractor agreement. Later that day, Morris approached the three trainees and shook the hands of two of them. “For reasons that are unclear, Brown refused to shake Morris’ hand,” the court said.
It is undisputed that Brown and Morris had a heated argument. According to Brown, after she refused to shake his hand, Morris told her, “Well, you ain’t nothing but a black person anyway” and “well, you ain’t nothing but [the N word].” Brown said that after that, she asked, “are you calling me a [N word]?” and Morris just “smirked and shook his head.” On the other hand, Morris testified that he told Brown that “not shaking a man’s hand is like calling a black person a derogatory name” and “it’s like calling a black person [the N word].”
After the exchange, as summarized by the district court, “the two engaged in some discussion about slapping or hitting people, although it is unclear who initiated this topic of discussion.” Morris reported the incident and told Craftmatic’s owner that he did not want Brown to be a representative there. The owner decided Craftmatic would not use Brown as a sales representative. Brown sued, alleging violations of Title VII, Section 1981, and Pennsylvania Human Relations Act based on disparate treatment, hostile work environment and retaliation. The U.S. District Court for the Western District of Pennsylvania ruled in Craftmatic’s favor.
On appeal, Brown contended the district court erred in concluding she was an independent contractor rather than an employee. The appeals court concluded Brown indeed was an independent contractor, in part because of the independent contractor agreement she signed, therefore her termination did not fall within the protections of Title VII.
The court noted, however, that at least three other circuits have held that an independent contractor may sue for discrimination under Section 1981. (the Seventh Circuit, the 11th Circuit and the First Circuit). It also held that the section embraces all contracts under which an independent contractor provides services. Taking the evidence in the light most favorable to Brown, the appeals court held that Morris’s comments “were not simply stray remarks.” It added that the company’s owner relied on Morris’s recommendation in deciding to terminate Brown’s contract “without ever speaking to Brown or to the other trainees who were present during the incident.”
The appeals court said a fact finder could conclude Morris’s recommendation that Brown’s contract should be terminated was motivated by racial animus. In remanding Brown’s 1981 claim, it agreed the question at hand was not whether the same decision would have been made had Morris not made the comments, but whether the same decision would have been made had Brown’s rae been “taken out of the equation.”
The trend we are recognizing is that Section 1981 does not limit itself or even refer to employment contracts, but embraces all contracts, therefore it includes contracts by which an independent contractor provides service to another.
