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From Employment to Contract: Section 1981 and Antidiscrimination Law for the Independent Contractor Workforce |
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Danielle Tarantolo [View as PDF]
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116 Yale L.J. 170 (2006)
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.
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