Unless you are misclassified as an independent contractor instead of an employee, you cannot sue for discrimination. You may want to consult an attorney or the US Dept of Labor to discuss whether you are misclassified.
I do not practice employment law in New York so it's important that you reach out to local, NY based employment lawyers for a "no charge” “no obligation” consultation. Having said as much, begin with Atty. Forman with whom I agree and would add that a self-employed contractor is not an employee. Stated another way an independent, self-employed contractor = independent business person. Translation: if you are truly an independent business person, filing a charge of discrimination with the NY Commission on Human Rights or the Federal EEOC will, like the filing for U.C. benefits ...go no where. Having said as much, you have touched on a very hot issue in employment law. Many employers (and individuals) try to circumvent their lawful obligations by treating those in their employ as independent contractors thereby avoiding having to pay unemployment tax, social security withholding, worker compensation …to name just a few. On the flip side the individual believes he/she is making out by not having taxes withheld. This all works until the individual suffers a workplace injury ...or is not paid for the work performed ...or as in your fact pattern believes he is being discriminated against. So I repeat, you need to consult with a local area employment lawyer. And finally, those of us who regularly answer questions posted here on AVVO are an excellent place for you to start your search for local counsel. The bottom line here from my perspective is that it's always wise to invest time in an effort to learn your rights so that you may become an "informed" consumer of legal service. Good luck and best regards, Rob Fortgang - Employment Law Attorneys serving Connecticut and Massachusetts / 800-932-6457 / firstname.lastname@example.org
ROBERT FORTGANG ASSOCIATES, LLC - DISCLAIMER These materials have been prepared by Robert Fortgang Associates, LLC and are to be used for informational purposes only. These materials are not intended, and should not be construed as legal advice. This information is not intended to create, and receipt of it does not constitute, an attorney–client relationship. Additionally, any submission or receipt of such information via any means of transmission does not create an attorney-client relationship. Internet subscribers and on-line readers should not act upon any of the information contained on this web site without seeking professional counsel. Please do not send us information until you speak with one of our lawyers and receive authorization to send that information to us.
If you are truly a self-employed contractor, you are not protected by workplace discrimination laws but you may be protected by laws that prohibit discrimination in contracting. To answer your second question, yes, certain types of discrimination can be proven by data.
The information provided above is for general purposes only. It does not constitute legal advice or create an attorney-client relationship. Seek competent legal representation, because the facts of each case are different.