From Employment to Contract: Section 1981 and Antidiscrimination Law for the Independent Contractor Workforce

Abstract

The American workplace has undergone a fundamental transformation as businesses increasingly have replaced traditional employees with independent contractors. Yet many of these individuals fall outside federal employment law, including Title VII’s antidiscrimination protections. This Note addresses the legal gap in coverage and proposes using 42 U.S.C. § 1981, a Reconstruction-era provision that forbids race discrimination in “mak[ing] and enforc[ing] contracts,” to modernize the workplace antidiscrimination regime to cover these workers. Drawing on the history and original purpose of the provision, the Note proposes reforms to § 1981 that would leave it structurally, doctrinally, and theoretically sound. author. Yale Law School, J.D. 2006; Williams College, B.A. 2001. I would like to thank Kenji Yoshino, Richard Brooks, and Vicki Schultz for their tremendous insights on the substance of this Note and for their dedicated commitment to developing student scholarship. I also thank Annie Decker for careful and thoughtful editing, and my friends and family for their support during the writing process. TARANTOLO FORMATTED_08-27-06 10/17/2006 6:24:43 PM from employment to contract