Tennessee Law Review
Document Type
Article
Abstract
What does the growth of online gig work mean for the future of employment discrimination law? While customers may not care about the sex and race of their Uber driver, elements of explicit and implicit bias can be expected when it comes to personal, home-based services like TaskRabbit or Care.com, or professional business services such as Catalant. In fact, the ubiquity of photographs and other personal data on these apps facilitates discrimination, as some empirical data suggests. Since predictions indicate that gig workers may soon account for 40% of the workforce, the goals of our employment discrimination laws-ensuring equal access and opportunity-may well be thwarted if current doctrine is applied.
The employment discrimination statutes were drafted at a time when the definition of "employee" was not highly contested, and judicial interpretations have excluded independent contractors from -their coverage. Whether gig workers are independent contractors under the wage and hour laws has been the subject of significant litigation and scholarly commentary, but no consideration has been given to the question of discrimination in their hiring and firing. This Article explores that question. It draws distinctions between discrimination and wage and hour policies; develops several innovative legal theories to protect gig workers under current law; analyzes cases that are just beginning to raise these issues; and finally suggests a normative taxonomy for determining statutory coverage that would replace the outmoded employee/independent contractor dichotomy.
Recommended Citation
Kotkin, Minna J.
(2019)
"UBERIZING DISCRIMINATION: EQUAL EMPLOYMENT AND GIG WORKERS,"
Tennessee Law Review: Vol. 87:
Iss.
1, Article 4.
Available at:
https://ir.law.utk.edu/tennesseelawreview/vol87/iss1/4
Publication Date
2019