In Karupaiyan v. Experis US Inc., ManpowerGroup US Inc et al, 2025 WL 615179 (2d Cir. 2025), the U.S. Court of Appeals for the Second Circuit affirmed the lower court’s dismissal of plaintiff’s various discrimination claims, on the ground that plaintiff was an independent contractor, not an “employee.”
From the decision:
The district court also properly granted summary judgment on the Title VII, ADA, ADEA, and NYSHRL claims. “Title VII, by its terms, applies only to ‘employees.’ ” Salamon v. Our Lady of Victory Hosp., 514 F.3d 217, 226 (2d Cir. 2008) (quoting 42 U.S.C. § 2000e(f)). Similarly, the ADA, ADEA, and NYSHRL apply only to employees, not independent contractors.1 See Clackamas Gastroenterology Assocs., P.C. v. Wells, 538 U.S. 440, 444–45 (2003) (applying common law agency principles to ADA); Frankel v. Bally, Inc., 987 F.2d 86, 89 (2d Cir. 1993) (ADEA); Eisenberg v. Advance Relocation & Storage, Inc., 237 F.3d 111, 113 (2d Cir. 2000) (NYSHRL).
In refusal-to-hire cases, the discrimination statutes apply only to applicants for employment, not applicants for independent contractor positions. Felder v. U.S. Tennis Assoc., 27 F.4th 834, 845 (2d Cir. 2022) (discussing Title VII). A plaintiff must establish “that if [ ]he had been hired, h[is] relationship with the alleged employer would have been more like a traditional employee than like a traditional independent contractor.” Id. (internal quotation marks and italics omitted). Thus, a plaintiff must show, “under common law agency principles, that h[is] alleged employer would have exerted control over the terms and conditions of h[is] anticipated employment by, for example, training, supervising, and disciplining h[im].” Id.The Supreme Court enumerated a list of 13 non-exhaustive factors in Community for Creative Non-Violence v. Reid, 490 U.S. 730, 751–52 (1989) to determine whether a hired party is an employee, and we have held that courts should “place special weight on the extent to which the hiring party controls the ‘manner and means’ by which the worker completes her assigned tasks.” Salamon, 514 F.3d at 227 (internal quotation marks omitted). The other factors include consideration of “the source of the instrumentalities and tools,” “the duration of the relationship between the parties,” “the extent of the hired party’s discretion over when and how long to work,” “the method of payment,” and “the provision of employee benefits.” Reid, 490 U.S. at 751–52.
Here, the evidence shows that Karupaiyan was not an applicant for traditional employment but an applicant for an independent contractor position. Samantha Moore, the lead recruiter at Experis, stated that Experis assisted the New York City Department of Education (“DOE”) hiring process by identifying relevant candidates and forwarding their resumes and references and that the DOE ultimately selected and hired the candidate. Dist. Ct. Dkt. 102 at ¶¶ 28–29, 31–35. Had Karupaiyan been selected by the DOE, Experis would not have controlled the “manner and means” of Karupaiyan’s work, supervised him, provided him with tools or a workspace, or assigned him additional work. Id. at ¶¶ 106–09, 111. Once selected by the DOE, Karupaiyan could have negotiated his hours and schedule directly with the DOE and not Experis. Id. at ¶ 112. Finally, Karupaiyan would not have been paid directly by Experis; instead, Experis would have paid Karupaiyan Consulting via a “1099” form with no deductions or withholdings and Karupaiyan would not have been entitled to employment benefits. Id. at ¶ 113.
Although Karupaiyan testified at his deposition that Experis took his resume, interviewed him, and negotiated pay rates, Dkt. 45 at 132; Dist. Ct. Dkt. 101-2 at 11, such testimony does not undermine Moore’s affidavit, which clarified the employment process and Karupaiyan’s prospective role. Given that Experis had no control over Karupaiyan’s prospective work or his hours, did not provide him with tools or a workspace, would not provide him employment benefits, and would have paid his consulting company through a 1099 form, Karupaiyan’s prospective employment was that of an independent contractor, not a traditional employee.
The court further upheld the dismissal of plaintiff’s claim under the New York City Human Rights Law, since at the relevant period the statute protected independent contractors from discrimination when such contractors were “natural persons,” and here plaintiff “sought employment as a corporation” and not as a “natural person.”