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Who constitutes an employee in discrimination cases

Whether an executive should be treated as an employee or an employer in a discrimination case is a hotly debated question. If a California executive is not deemed to be an employee, that person is not covered under anti-discrimination provisions of Title VII of the 1964 Civil Rights Act. In fact, that executive may not be covered under most anti-discrimination legislation.

This question may come into play when an executive or law firm partner is passed over for a promotion. When the victim sues for workplace discrimination, the company or law firm will claim that this person is not an employee. The Supreme Court has described several tests that determine if a person is an employee. For instance, if a person can be hired or fired, that person may be an employee.

The same is true if that person reports to someone higher in the company. As a general rule, a person may be an employee if the company supervises his or her work. To be exempt from the employee label, a worker must have influence over the company and must generally share in the profits or losses that the company or firm experiences. It is important to note that job title alone generally doesn't determine if a worker is an employer or employee.

Those who experience employment discrimination may wish to talk with legal counsel. Doing so may help them learn more about his or her rights and what recourse they may have. If applicable, the attorney could help file a claim with the appropriate state or federal agency.

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